Jackson Financial Inc S-4, filed Aug 12, 2022
Jackson Financial Inc. (JXN)
As filed with the Securities and Exchange Commission on August 12, 2022
| Registration No. 333- |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-4
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
Jackson Financial Inc.
(Exact name of registrant as specified in its charter)
| Delaware (State or other jurisdiction of incorporation or organization) |
6311 (Primary Standard Industrial Classification Code Number) |
98-0486152 (IRS Employer Identification Number) |
1 Corporate Way
Lansing, Michigan 48951
(517) 381-5500
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Carrie L. Chelko
Executive Vice President, General Counsel and Secretary
Jackson Financial Inc.
1 Corporate Way
Lansing, Michigan 48951
(517) 381-5500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
with copy to:
Richard W. Astle, Esq.
Sidley Austin LLP
One South Dearborn
Chicago, Illinois 60603
(312) 853-7000
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this registration statement becomes effective.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: ¨
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer ¨ | Accelerated filer ¨ | |
| Non-accelerated filer x |
Smaller reporting company ¨
Emerging growth company ¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
| Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) | ¨ | |
| Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) | ¨ |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not complete the exchange offers and issue these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST 12, 2022
Prospectus
Jackson Financial Inc.
OFFER TO EXCHANGE
$600,000,000 aggregate principal amount of its 1.125% Senior Notes due 2023 that have been registered under the Securities Act of 1933 (the “New 2023 Notes”) for any and all of its outstanding 1.125% Senior Notes due 2023 (the “Old 2023 Notes”)
$500,000,000 aggregate principal amount of its 3.125% Senior Notes due 2031 that have been registered under the Securities Act of 1933 (the “New 2031 Notes”) for any and all of its outstanding 3.125% Senior Notes due 2031 (the “Old 2031 Notes”)
$500,000,000 aggregate principal amount of its 4.000% Senior Notes due 2051 that have been registered under the Securities Act of 1933 (the “New 2051 Notes” and, together with the New 2023 Notes and the New 2031 Notes, the “New Notes”) for any and all of its outstanding 4.000% Senior Notes due 2051 (the “Old 2051 Notes” and, together with the Old 2023 Notes and the Old 2031 Notes, the “Old Notes”)
This exchange offer will expire at 5:00 p.m., New York City time, on , 2022, unless extended.
| · | We will exchange New Notes for any and all outstanding Old Notes that are validly tendered and not validly withdrawn prior to the expiration or termination of the exchange offer being made by this prospectus and the related letter of transmittal (the “exchange offer”). |
| · | You may withdraw, no later than 5:00 p.m., New York City time, on the expiration date of the exchange offer, any Old Notes that you have tendered in the exchange offer. |
| · | The exchange offer is subject to customary conditions that may be waived by us. |
| · | The terms of the New Notes are substantially identical to those of the Old Notes of the corresponding series, except that the New Notes are registered under the Securities Act of 1933, as amended (the “Securities Act”), the transfer restrictions, registration rights and additional interest provisions relating to the Old Notes will not apply to the New Notes, and the first interest payment date for and date from which interest will accrue on the New Notes will be different from those applicable to the Old Notes of the corresponding series. The New Notes will also have a separate CUSIP number from that of the Old Notes of the corresponding series. |
| · | The exchange of Old Notes for New Notes will not be a taxable event for U.S. federal income tax purposes. See “U.S. Federal Income Tax Considerations” for more information. |
| · | We will not receive any proceeds from the exchange offer. |
| · | If you do not exchange your Old Notes for New Notes in the exchange offer, your Old Notes will remain outstanding and will continue to accrue interest but will remain subject to restrictions on transfers. |
Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes received in exchange for Old Notes where such New Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, starting on the expiration date of the exchange offer and ending on the close of business on the day that is 90 days following that expiration date, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”
No public market exists for the New Notes or the Old Notes. Neither the New Notes nor the Old Notes will be listed on any securities exchange or included in any quotation system.
Exchanging your outstanding Old Notes for New Notes involves risks, including those described in the “Risk Factors” section beginning on page 13 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2022.
TABLE OF CONTENTS
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We have not authorized anyone to provide you with information different from, or in addition to, that contained or incorporated by reference in this prospectus or any related free writing prospectus that we prepare or distribute. We take no responsibility for, and can provide no assurances as to the reliability of, any other information that others may give you. This prospectus does not constitute an offer to exchange, or a solicitation of an offer to tender or exchange, Old Notes for New Notes in any jurisdiction in which it is unlawful to make such offer or solicitation. The information contained in this prospectus, the documents incorporated by reference herein or any free writing prospectus prepared by us is only accurate as of the date of the document containing such information, regardless of the time of delivery of this prospectus and any exchange of Old Notes for New Notes.
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As used in this prospectus, unless the context otherwise requires, the terms “we,” “us,” “our” and “Company” mean Jackson Financial Inc. and its consolidated subsidiaries, and references to “JFI” or the “Issuer” are to Jackson Financial Inc. only.
This prospectus incorporates important business and financial information about us that is not included in or delivered with this prospectus. We will provide this information to you at no charge upon written or oral request directed to: Jackson Financial Inc., 1 Corporate Way, Lansing, Michigan 48951, Attention: Investor Relations, Telephone: (517) 381-5500. You should read this prospectus together with the documents identified under the headings “Where You Can Find More Information” and “Incorporation by Reference” in this prospectus.
You should rely only on the information contained in or incorporated by reference in this prospectus and any related free writing prospectus issued or authorized by us. This prospectus may be used only for the purpose for which it has been prepared. No one is authorized to give information other than that contained in this prospectus, in the documents referred to in this prospectus and which are made available to the public and in any related free writing prospectus issued or authorized by us. We have not authorized any other person to provide you with different or additional information. If anyone provides you with different or additional information, you should not rely on it.
We are not making an offer to exchange, or a solicitation of an offer to tender or exchange, Old Notes for New Notes in any jurisdiction where the offer or solicitation is not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus or any related free writing prospectus issued or authorized by us is accurate as of any date other than the date of the applicable document. Our business, financial condition, results of operations and prospects may have changed since those respective dates. Neither this prospectus nor any related free writing prospectus issued or authorized by us constitutes an offer, or an invitation on our behalf, to tender or exchange Old Notes for New Notes and may not be used for or in connection with an offer or solicitation by anyone, in any jurisdiction in which such an offer or solicitation is not authorized or to any person to whom it is unlawful to make such an offer or solicitation.
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Forward-Looking Statements—Cautionary Language
This prospectus and the documents incorporated or deemed to be incorporated by reference herein and therein contain forward-looking statements and cautionary statements within the meaning of the Private Securities Litigation Reform Act of 1995. A forward-looking statement is a statement that is not a historical fact and includes any statement that may predict, forecast, indicate or imply future results, performance or achievements. Forward-looking statements may contain words like: “anticipate,” “believe,” “estimate,” “expect,” “project,” “shall,” “will” and other words or phrases with similar meaning in connection with a discussion of future operating or financial performance. In particular, these include statements relating to future actions, trends in our businesses, prospective services or products, future performance or financial results and the outcome of contingencies, such as legal proceedings.
Forward-looking statements are subject to risks and uncertainties. Actual results could differ materially from those expressed in or implied by such forward-looking statements due to a variety of factors, including:
| · | conditions in the capital and credit markets and the economy, which impact liquidity, investment performance and valuation, hedge program performance, interest rates and credit spreads; | |
| · | Jackson Financial Inc.’s dependence on the ability of its subsidiaries to transfer funds to meet Jackson Financial Inc.’s obligations and liquidity needs; | |
| · | downgrade in our financial strength or credit ratings, which impact our business and costs of financing; | |
| · | changes in laws and regulations, which impact how we conduct our business, the relative appeal of our products versus those from other financial institutions, and changes in accounting standards, which impact how we account for and present our results of operations; | |
| · | operational failures, including failure of our information technology systems, failure to protect the confidentiality of customer information or proprietary business information, and disruptions from third party outsourcing partners; | |
| · | a failure to adequately describe and administer, or meet any of the complex product and regulatory requirements relating to, the many complex features and options contained in our annuities; | |
| · | adverse impacts on our results of operations and capitalization as a result of optional guarantee benefits within certain of our annuities; | |
| · | models that rely on a number of estimates, assumptions, sensitivities and projections, which models inform our business decisions and strategy and which may contain misjudgments and errors and may not be as predictive as desired; | |
| · | risks related to natural and man-made disasters and catastrophes, diseases, epidemics, pandemics (including COVID-19), malicious acts, cyberattacks, terrorist acts, civil unrest and climate change; | |
| · | inadequate reserves due to differences between our actual experience and management’s estimates and assumptions; | |
| · | changes in the levels of amortization of deferred acquisition costs; and | |
| · | adverse outcomes of legal or regulatory actions. |
You should read this prospectus and the documents incorporated or deemed to be incorporated by reference herein completely and with the understanding that actual future results may be materially different from expectations. All forward-looking statements made in this prospectus and the documents incorporated or deemed to be incorporated by reference herein are qualified by these cautionary statements. Any forward-looking statements are made only as of the date on which it is made, and we do not undertake any obligation, other than as may be required by law, to update or revise any forward-looking or cautionary statements to reflect changes in assumptions, the occurrence of events, unanticipated or otherwise, and changes in future operating results over time or otherwise.
Other risks, uncertainties and factors, including those discussed under “Risk Factors” in this prospectus and the risk factors and other information in our Annual Report on Form 10-K for the year ended December 31, 2021, and in our other filings with the Securities and Exchange Commission (the “SEC”) incorporated by reference into this prospectus, could cause our actual results to differ materially from those projected in any forward-looking statements we make. Readers should read carefully the factors described under “Risk Factors” in this prospectus and the risk factors and other information in our filings with the SEC incorporated by reference into this prospectus to better understand the risks and uncertainties inherent in our business and underlying any forward-looking statements.
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This summary highlights information about us, the New Notes being offered by this prospectus and the exchange offer being made hereby. This summary is not complete and does not contain all of the information that you should consider prior to deciding whether or not to exchange your Old Notes for New Notes. For a more complete understanding of our company, the New Notes and the exchange offer being made hereby, we encourage you to read this prospectus and the related letter of transmittal (the “letter of transmittal”), as well as the documents incorporated by reference into this prospectus, in their entirety. You should pay special attention to the “Risk Factors” section of this prospectus and the “Risk Factors” sections in our Annual Report on Form 10-K for the year ended December 31, 2021 and in our other filings with the SEC incorporated by reference into this prospectus.
Overview
We help Americans grow and protect their retirement savings and income to enable them to pursue financial freedom for life. We believe that we are uniquely positioned in our markets because of our differentiated products, well-known brand and disciplined risk management. Our market leadership is supported by our efficient and scalable operating platform and industry-leading distribution network. We believe these core strengths will enable us to grow profitably as an aging U.S. population transitions into retirement.
We offer a diverse suite of annuities to retail investors in the United States. Our variable annuities have been among the best-selling products of their kind in the United States primarily due to the differentiated features we offer as compared to our competitors, in particular the wider range of investment options and greater freedom to invest across multiple investment options. We also offer fixed index annuities and fixed annuities. In the fourth quarter of 2021, our primary life insurance subsidiary, Jackson National Life Insurance Company (“Jackson National Life”) successfully launched Market Link ProSM and Market Link Pro AdvisorySM, its commission and advisory based suite of registered index-linked annuities (“RILA”). Also in the fourth quarter of 2021, we entered the defined contribution market as a carrier in the AllianceBernstein Lifetime Income Strategy.
We sell our products through a distribution network that includes independent broker-dealers, wirehouses, regional broker-dealers, banks, and independent registered investment advisors, third-party platforms and insurance agents. We have been the top selling retail annuity company in the United States for nine of the past ten years, according to the Life Insurance Marketing and Research Association (“LIMRA”).
Our operating platform is scalable and efficient. We administer approximately 77% of our in-force policies on our in-house policy administration platform. The remainder of our business is administered through established third-party arrangements. We believe that our operating platform provides us with a competitive advantage by allowing us to grow efficiently and provide superior customer service.
Our principal executive office is located at 1 Corporate Way, Lansing, Michigan 48951, and our telephone number at that address is (517) 381-5500.
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Summary Description of the Exchange Offer
The following is a description of some of the terms of the exchange offer. The following information is provided solely for your convenience, is not complete and does not contain all of the information that you need to consider in deciding whether or not to exchange your Old Notes for New Notes. You should read the information appearing in this prospectus under the captions “Risk Factors,” “The Exchange Offer,” “Description of the New Notes,” “U.S. Federal Income Tax Considerations” and “Plan of Distribution,” as well as the other information contained in and incorporated by reference into this prospectus and in the letter of transmittal relating to the exchange offer, for additional information concerning the terms of the exchange offer and the New Notes and the risks of investing in the New Notes. As used herein, the term “exchange offer” means the exchange offer being made pursuant to this prospectus and the related letter of transmittal.
For purposes of the information appearing under this caption “Summary Description of the Exchange Offer,” references to “Jackson Financial Inc.,” “the Company,” “we,” “our,” “us” and similar references refer only to Jackson Financial Inc. and not its subsidiaries or any entities that are consolidated with it for financial reporting purposes, unless otherwise expressly stated or the context otherwise requires.
| Background; Old Notes | On November 23, 2021, we completed a private offering of |
| · | $600,000,000 aggregate principal amount of our 1.125% Senior Notes due 2023, |
| · | $500,000,000 aggregate principal amount of our 3.125% Senior Notes due 2031 and |
| · | $500,000,000 aggregate principal amount of our 4.000% Senior Notes due 2051, |
in each case pursuant to exemptions from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), which we sometimes refer to as the “Old Notes.” In connection with that offering, we entered into a registration rights agreement dated November 23, 2021 (the “Registration Rights Agreement”) with the representatives of the initial purchasers of the Old Notes. We are making the exchange offer as required by the Registration Rights Agreement.
| New Notes | Up to: |
| · | $600,000,000 aggregate principal amount of our 1.125% Senior Notes due 2023, |
| · | $500,000,000 aggregate principal amount of our 3.125% Senior Notes due 2031 and |
| · | $500,000,000 aggregate principal amount of our 4.000% Senior Notes due 2051, |
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in each case that have been registered under the Securities Act and offered hereby in exchange for the Old Notes of the corresponding series (the “New Notes”). The terms of the New Notes are substantially identical to those of the Old Notes of the corresponding series, except that the New Notes have been registered under the Securities Act, will not be subject to the transfer restrictions applicable to the Old Notes, will not be entitled to payment of Additional Interest (as defined under “Description of Registration Rights Agreement”), will not be entitled to registration rights or (subject to possible limited exceptions) other rights under the Registration Rights Agreement, and the first interest payment date for and date from which interest will accrue on the New Notes will be different from those applicable to the Old Notes of the corresponding series. The New Notes will also have a separate CUSIP number from the Old Notes of the corresponding series. When we use the term “2023 Notes” in this prospectus, the related discussion applies to both the Old 2023 Notes and the New 2023 Notes, when we use the term “2031 Notes” in this prospectus, the related discussion applies to both the Old 2031 Notes and the New 2031 Notes and when we use the term “2051 Notes” in this prospectus, the related discussion applies to both the Old 2051 Notes and the New 2051 Notes. We sometimes refer to the New Notes and Old Notes as, collectively, the “Notes” or, individually, a “Note.” The Old Notes were issued and the New Notes will be issued under the Indenture dated as of November 23, 2021 between us and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the supplemental indenture for each series of Old Notes (the “Indenture”), and the New Notes of each series and any Old Notes of the corresponding series that remain outstanding after the exchange offer will constitute a single class of Notes under the Indenture.
| Exchange Offer | On the terms and subject to the conditions set forth herein and in the letter of transmittal, you may exchange Old Notes of each series that are validly tendered and not validly withdrawn prior to the expiration or termination of the exchange offer for a like principal amount of New Notes of the corresponding series. In exchange for each $1,000 aggregate principal amount of Old Notes validly tendered and not validly withdrawn by the holder thereof prior to 5:00 p.m., New York City time, on the expiration date of the exchange offer and accepted for exchange by us, all on the terms and subject to the conditions set forth in the letter of transmittal and this prospectus, the tendering holder will receive $1,000 aggregate principal amount of New Notes of the corresponding series. |
| Expiration Date | The exchange offer will expire at 5:00 p.m., New York City time, on , 2022 (which is the 20th business day following the date of this prospectus), unless extended or terminated in our sole and absolute discretion. The term “expiration date” means , 2022, except that if we, in our sole and absolute discretion, extend the period of time during which the exchange offer is open, “expiration date” shall mean the latest date to which the exchange offer has been extended. For further information, see “The Exchange Offer—Terms of the Exchange Offer; Period for Tendering Old Notes.” |
| Representations by Tendering Owners | By tendering your Old Notes, you will acknowledge, represent and warrant to and agree with us that, among other things: |
| · | you are not our “affiliate” (as defined in Rule 405 under the Securities Act); |
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| · | any New Notes you receive in the exchange offer will be acquired by you in the ordinary course of your business; |
| · | you have no arrangement or understanding with any person to engage in, and you are not engaged in and do not intend to engage in, the distribution (within the meaning of the Securities Act) of the New Notes in violation of the Securities Act; |
| · | you are not a broker-dealer that will receive New Notes in the exchange offer in exchange for Old Notes that you purchased from us for resale pursuant to Rule 144A under the Securities Act or any other available exemption from registration under the Securities Act; and |
| · | if you are a broker-dealer that will receive New Notes for your own account in the exchange offer in exchange for Old Notes that you acquired for your own account as a result of your market-making or other trading activities, you will deliver (or, to the extent permitted by applicable law, make available) a prospectus meeting the requirements of the Securities Act to purchasers in connection with any resale of the New Notes you receive. For further information, see “Plan of Distribution.” |
You will be required to make these and other acknowledgements, representations, warranties and agreements in order to tender Old Notes in the exchange offer. For further information, see “Description of Exchange Offer—Representations by Tendering Owners” and “—Resales of New Notes.”
| Conditions to the Exchange Offer | The exchange offer is subject to customary conditions, which we may waive. For further information, see “The Exchange Offer—Conditions to the Exchange Offer.” |
| Procedures for Tendering the Old Notes | The Old Notes of each series currently are in book-entry form and represented by one or more global Old Notes (the “Global Old Notes”) registered in the name of The Depository Trust Company (“DTC”) or its nominee. You will not be entitled to receive Old Notes in definitive certificated form (“Certificated Old Notes”) in exchange for your beneficial interest in the Global Old Notes except under the limited circumstances described under “Book-Entry, Delivery and Form.” Accordingly, so long as your Old Notes are in book-entry form represented by one or more Global Old Notes, you must tender your Old Notes pursuant to DTC’s Automated Tender Offer Program (“ATOP”) and the other procedures described in this prospectus and in the related letter of transmittal. |
If you wish to tender your Old Notes pursuant to the exchange offer, you must, among other things, deliver or cause to be delivered to the Exchange Agent (as defined below) prior to 5:00 p.m., New York City time, on the expiration date either:
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| · | a properly completed and duly executed letter of transmittal, with any required signature guarantees, together with any other required documentation, all of which must be delivered to the Exchange Agent in the manner and at the address set forth in this prospectus; or |
| · | so long as your Old Notes are in book-entry form, a computer-generated message transmitted by DTC to and received by the Exchange Agent and forming a part of the Book-Entry Confirmation (as defined below) stating that the holder of the Old Notes acknowledges and agrees to be bound by the terms of the letter of transmittal (an “Agent’s Message”). |
In addition, you must also deliver or cause to be delivered to the Exchange Agent prior to 5:00 p.m., New York City time, on the expiration date either:
| · | so long as your Old Notes are in book-entry form, an electronic confirmation from DTC of the book-entry transfer of your Old Notes into the Exchange Agent’s account at DTC (a “Book-Entry Confirmation”); or |
| · | in the event certificated Notes are issued, the Certificated Old Notes you are tendering, in proper form for transfer and with any required signature guarantees and any other required documentation, all of which must be delivered to the Exchange Agent, together with your signed letter of transmittal and other required documents, in the manner and at the address set forth in this prospectus. |
You may tender any or all of your Old Notes; provided that Old Notes may only be tendered in denominations of $2,000 and integral multiples of $1,000 in excess thereof and, if any Old Note is tendered in part, the untendered portion of such Old Note must be a denomination of $2,000 or an integral multiple of $1,000 in excess thereof. For further information, see “The Exchange Offer—Procedures for Tendering Old Notes” and “—Book-Entry Transfers.”
If you are the beneficial owner of Old Notes in book-entry form that are held through or registered in the name of a broker, dealer, bank or other financial institution or nominee and you wish to tender those Old Notes in the exchange offer, you must promptly instruct such broker, dealer, bank or other financial institution or nominee, as the case may be, to tender those Old Notes on your behalf prior to the expiration of the exchange offer or, if you are a direct participant in DTC, you may give those instructions directly to DTC. So long as the Old Notes are in book-entry form represented by one or more Global Old Notes, this is the only manner in which you will be able to tender your Old Notes.
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If Certificated Old Notes are issued and you are the beneficial owner of Certificated Old Notes that are held through or registered in the name of a broker, dealer, bank or other financial institution or nominee and you wish to tender those Certificated Old Notes in the exchange offer, you must promptly instruct such broker, dealer, bank or other financial institution or nominee, as the case may be, to tender those Certificated Old Notes on your behalf prior to the expiration of the exchange offer or, if you wish to tender those Certificated Old Notes yourself, then, prior to completing and executing the letter of transmittal and delivering your Certificated Old Notes, you must either make appropriate arrangements to register ownership of those Certificated Old Notes in your own name or obtain a properly completed bond power (with any required signature guarantee) from the registered holder of those Certificated Old Notes. The transfer of registered ownership may take considerable time.
| Withdrawal Rights | You may withdraw, no later than 5:00 p.m., New York City time, on the expiration date of the exchange offer, any Old Notes that you have tendered in the exchange offer by following the procedures described in this prospectus and the related letter of transmittal. Any Old Notes which have been tendered for exchange but which are withdrawn or otherwise are not exchanged for any reason will be returned to the holders thereof (or, in the case of Old Notes tendered by book-entry transfer, will be credited to the accounts at DTC of the applicable DTC participants) without cost of such holders promptly after withdrawal of such Old Notes or expiration or termination of the exchange offer, as the case may be. For further information, see “The Exchange Offer—Withdrawal Rights.” |
| No Guaranteed Delivery | There are no guaranteed delivery procedures available in connection with the exchange offer. Accordingly, holders of Old Notes must deliver or cause to be delivered their Old Notes and all other required documentation to the Exchange Agent in accordance with the procedures described in this prospectus and the letter of transmittal prior to 5:00 p.m., New York City time, on the expiration date. |
| No Appraisal or Dissenters’ Rights | Holders of the Old Notes do not have any appraisal or dissenters’ rights in connection with the exchange offer. |
| U.S. Federal Income Tax Considerations | The exchange of the Old Notes for New Notes in the exchange offer will not be a taxable event for U.S. federal income tax purposes. For further information regarding some of the U.S. federal tax considerations that you should take into account in deciding whether or not to exchange Old Notes for New Notes, see “U.S. Federal Income Tax Considerations.” |
| Use of Proceeds | We will not receive any proceeds from the exchange offer. |
| Exchange Agent | The Bank of New York Mellon is the exchange agent (the “Exchange Agent”) for the exchange offer. You can find the address and telephone number of the Exchange Agent under the caption “The Exchange Offer—Exchange Agent.” |
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| Resales of New Notes | Based on interpretations by the staff of the SEC contained in no-action letters issued to third parties, we believe that, except as provided in the next sentence and in the second succeeding paragraph, the New Notes you receive in the exchange offer may be offered for resale, resold or otherwise transferred by you without compliance with the registration and prospectus delivery requirements of the Securities Act unless: |
| (1) | you are our “affiliate” (as defined in Rule 405 under the Securities Act); |
| (2) | the New Notes you receive in the exchange offer will not be acquired by you in the ordinary course of your business; or |
| (3) | you have an arrangement or understanding with any person to engage in, or you are engaged in or intend to engage in, the distribution (within the meaning of the Securities Act) of the New Notes in violation of the Securities Act. |
However, if you are a broker-dealer holding Old Notes acquired for your own account as a result of market-making or other trading activities and who receives New Notes in exchange for such Old Notes pursuant to the exchange offer (a “participating broker-dealer”), you may be an “underwriter” within the meaning of the Securities Act and you must (and must acknowledge that you will) deliver (or, to the extent permitted by applicable law, make available) a prospectus meeting the requirements of the Securities Act to purchasers and other transferees in connection with any resale or other transfer of such New Notes. However, by so acknowledging and delivering a prospectus, a participating broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. A participating broker-dealer may use this prospectus, as amended or supplemented from time to time, in connection with resales and other transfers of New Notes received for its own account in exchange for such Old Notes in the exchange offer for a period ending on the earlier of (i) 90 days after the expiration date of the exchange offer and (ii) the date on which such participating broker-dealer is no longer required to deliver a prospectus in connection with resales of New Notes (subject, in either case, to our right to suspend the use of the prospectus under the circumstances described under “Plan of Distribution”), so long as such participating broker-dealer has notified us in the letter of transmittal that it will be using this prospectus for such purpose. For further information, see “Plan of Distribution.”
If you fall into one or more of categories (1) through (3) of the second preceding paragraph, if you are participating in the exchange offer for the purpose of participating in a distribution (within the meaning of the Securities Act) of the New Notes to be acquired in the exchange offer, or if you are a broker-dealer that will receive New Notes in the exchange offer in exchange for Old Notes that you acquired from us for resale pursuant to Rule 144A under the Securities Act or any other available exemption from registration under the Securities Act, (i) you will not be able to rely on the interpretations of the SEC staff enunciated in the no-action letters mentioned above or in other interpretive letters of similar effect, (ii) you may not tender your Old Notes in the exchange offer, (iii) in the absence of an applicable exemption, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any offer, sale or other transfer of Notes, and (iv) any registration statement used in connection with such offer, sale or other transfer of Notes must contain the selling security holder information required by Item 507 of Regulation S-K under the Securities Act. Failure to comply with such registration and prospectus delivery requirements may result in liability under the Securities Act, and we will not be responsible for, or indemnify you against, any such liability.
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| Registration Rights Agreement | When we issued the Old Notes, we entered into the Registration Rights Agreement pursuant to which we agreed, on the terms and subject to the conditions set forth therein, to use our reasonable best efforts to (1) complete an offer to exchange the Old Notes for New Notes that have been registered under the Securities Act no later than December 31, 2022 or (2) if such exchange offer is not consummated by such date, to file and keep effective for a specified period of time a shelf registration with respect to resales of the Old Notes. If we fail to satisfy certain of our registration obligations under the Registration Rights Agreement, we will be required to pay Additional Interest to the holders of the Old Notes (other than any Old Note that has ceased to be a Registrable Security (as defined under “Description of Registration Rights Agreement”)). No Additional Interest will be payable on New Notes. For additional information, see “Description of Registration Rights Agreement.” |
| Risk Factors | An investment in the New Notes involves risks, and you should carefully consider the matters discussed under “Risk Factors” in this prospectus and in the reports we file with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference into this prospectus and which may be obtained as described below under “Where You Can Find More Information” and “Incorporation by Reference” before making a decision to exchange Old Notes for New Notes. |
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Consequences of Not Exchanging Old Notes
If you do not exchange your Old Notes for New Notes in the exchange offer, your Old Notes will remain outstanding and will continue to accrue interest but will remain subject to the restrictions on transfer set forth in the Indenture and in the legend on the certificates evidencing the Old Notes, as well as the restrictions on transfer arising under the Securities Act and any other applicable laws, and you will not be entitled to receive any Additional Interest on your Old Notes and will not be entitled (subject to possible limited exceptions) to any registration rights or other rights under the Registration Rights Agreement. In general, you may offer or sell your Old Notes only if:
| · | they are offered and sold pursuant to a registration statement which is effective under, and otherwise in compliance with the registration and prospectus delivery requirements of, the Securities Act, or |
| · | they are offered and sold under an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, |
subject, in each of the foregoing cases, to compliance with the securities laws of any other applicable jurisdiction and with the procedures specified in the Indenture, including the delivery of any certificate, opinion of counsel or other information that may be required by the Indenture or by us. We do not intend to register the Old Notes under the Securities Act or to make a prospectus available to enable you to sell or otherwise transfer your Old Notes.
In addition, the exchange offer may have a material adverse effect on the market price and liquidity of any Old Notes that remain outstanding following the exchange offer. See “Risk Factors—Risks Related to the Exchange Offer—If you choose not to exchange your Old Notes in the exchange offer, the transfer restrictions currently applicable to your Old Notes will remain in force and the market price and liquidity of your Old Notes may decline.”
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Summary Description of the New Notes
The following is a description of some of the terms of the New Notes. The following information is provided solely for your convenience, is not complete and does not contain all of the information that you need to consider in deciding whether or not to exchange your Old Notes for New Notes. You should read the information appearing in this prospectus under the captions “Risk Factors,” “Description of the New Notes” and “U.S. Federal Income Tax Considerations,” as well as the other information contained in and incorporated by reference into this prospectus and in the letter of transmittal relating to the exchange offer, for additional information concerning the terms of the New Notes and the risks of investing in the New Notes.
For purposes of the information appearing under this caption “Summary Description of the New Notes,” references to “Jackson Financial Inc.,” “the Company,” “the Issuer,” “we,” “our,” “us” and similar references refer only to Jackson Financial Inc. and not its subsidiaries or any entities that are consolidated with it for financial reporting purposes, unless otherwise expressly stated or the context otherwise requires. Certain capitalized terms used under this caption “Summary Description of the New Notes” are defined under “Description of the New Notes.”
| Issuer | Jackson Financial Inc. |
| New Notes Offered | Up to: |
| · | $600,000,000 aggregate principal amount of 1.125% Senior Notes due 2023, |
| · | $500,000,000 aggregate principal amount of 3.125% Senior Notes due 2031 and |
| · | $500,000,000 aggregate principal amount of 4.000% Senior Notes due 2051, |
in each case that have been registered under the Securities Act. The New Notes of each series will be issued under the same Indenture as the Old Notes of the corresponding series and the New Notes of each series and any Old Notes of the corresponding series that remain outstanding after the exchange offer will constitute a single class of Notes under the Indenture. Old Notes that are exchanged for New Notes of the corresponding series in the exchange offer will be retired and, as a result, the aggregate principal amount of Notes of each series outstanding will not be increased as a result of the exchange offer.
| Maturity Date | The 2023 Notes will mature on November 22, 2023. |
The 2031 Notes will mature on November 23, 2031.
The 2051 Notes will mature on November 23, 2051.
| Interest | Interest on the 2023 Notes will accrue at a rate of 1.125% per annum. |
Interest on the 2031 Notes will accrue at a rate of 3.125% per annum.
Interest on the 2051 Notes will accrue at a rate of 4.000% per annum.
| Interest Payment Dates | The Issuer will pay interest semi-annually in arrears on the New 2023 Notes on May 22 and November 22 of each year, commencing on November 22, 2022. The Issuer will pay interest semi-annually in arrears on the New 2031 Notes and the New 2051 Notes on May 23 and November 23 of each year, in each case, commencing on November 23, 2022. The New Notes of each series will accrue interest from the most recent date to which interest has been paid or provided for on the Old Notes of the corresponding series. |
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| Ranking | The Old Notes are, and the New Notes will be, the Issuer’s senior unsecured obligations and rank equally in right of payment with all of the Issuer’s existing and future unsecured and unsubordinated indebtedness, including our revolving credit facility. The Old Notes are, and the New Notes will be, structurally subordinated to all debt, other liabilities (including liabilities to policyholders and contract holders) and preferred equity of the Issuer’s subsidiaries, which means that creditors and preferred equity holders of the Issuer’s subsidiaries will be paid from the subsidiaries’ assets before holders of the Notes would have any claims to those assets. |
| Further Issuances | The Issuer may, from time to time, without notice to or the consent of the existing holders of the Notes, issue additional Notes having the same terms as the Notes of any series, provided that, if the additional Notes are not fungible with the Notes of the applicable series for U.S. federal income tax or other purposes, the additional Notes will have a separate CUSIP number so that they are distinguishable from the Notes of the applicable series. |
| Covenants | The Indenture contains covenants that restrict the Issuer’s ability, with specified exceptions, to: |
| · | create, assume, incur or guarantee any debt for money borrowed that is secured by any mortgage, pledge, lien, security interest or other encumbrance on any capital stock (defined as shares or units of, rights to purchase, warrants or options for, or other equivalent interests in equity of an entity and any preferred stock of a corporation or company) of Jackson National Life, any successor to substantially all of the business of Jackson National Life that is a direct or indirect subsidiary of the Issuer, or any entity (other than the Issuer) having direct or indirect control of Jackson National Life, or any such successor, unless the Notes then outstanding are secured equally and ratably with (or prior to) such secured debt so long as such debt is so secured; |
| · | sell or otherwise dispose of any shares of capital stock (other than preferred stock having no voting rights of any kind) of Jackson National Life, any successor to substantially all of the business of Jackson National Life that is also a direct or indirect subsidiary of the Issuer, or any entity (other than the Issuer) having direct or indirect control of Jackson National Life or any such successor; subject to limited exceptions including, a sale or other disposition of any shares of such capital stock for at least fair market value will be permitted; and |
| · | merge with or into or consolidate with another entity or convey, lease or otherwise transfer all or substantially all of the Issuer’s assets to any other entity, subject to limited exceptions, including to one of its direct or indirect wholly owned subsidiaries. See “Description of the New Notes—Consolidation, Merger, Transfer of Assets and Other Transactions.” |
| Optional Redemption | At any time and from time to time prior to (i) November 22, 2023, in the case of the 2023 Notes, (ii) August 23, 2031, in the case of the 2031 Notes, and (iii) May 23, 2051, in the case of the 2051 Notes, the applicable series of the Notes will be redeemable at the Issuer’s option, in whole or in part, at a redemption price equal to the greater of 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date and the applicable “Make-Whole Redemption Amount” calculated as described under “Description of the New Notes—Optional Redemption.” |
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At any time and from time to time on or after their respective Par Call Dates (as defined herein), the 2031 Notes and the 2051 Notes will be redeemable at the Issuer’s option, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date.
| Absence of Public Market for the New Notes | The New Notes are a new issue of securities, and there is no established trading market for the New Notes. The Issuer does not intend to apply for a listing of any series of the New Notes on any securities exchange or automated dealer quotation system. Accordingly, the Issuer cannot assure you as to the development or liquidity of any trading market for the New Notes. See “Risk Factors—Risks Relating to the New Notes—There is currently no market for the New Notes, and we cannot assure you that an active trading market for the New Notes will develop. The New Notes may trade at prices below the price you paid for them.” |
| Indenture | The Old Notes were issued, and the New Notes will be issued, under an indenture between the Issuer, as issuer, and The Bank of New York Mellon Trust Company, N.A., as trustee. |
| Clearance and Settlement | The New Notes will be issued in book-entry form through the facilities of DTC for the accounts of its participants, including Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”), and Clearstream Banking S.A. (“Clearstream”), and will trade in DTC’s same day funds settlement system. Beneficial interests in New Notes held in book-entry form will not be entitled to receive physical delivery of certificated notes, except in certain limited circumstances. |
| Form and Denomination | The New Notes will be issued only in fully registered form without interest coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. |
| Governing Law | The Old Notes are, and the New Notes will be, governed by the laws of the State of New York. |
| Trustee | The Bank of New York Mellon Trust Company, N.A. |
| Risk Factors | In evaluating an investment in the New Notes, you should carefully consider, along with the other information in this prospectus, the specific factors set forth under the section titled “Risk Factors” in this prospectus and in the applicable documents incorporated by reference herein and other information included or incorporated by reference in this prospectus for risks involved with making a decision to exchange Old Notes for New Notes. |
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Your investment in the New Notes will involve certain risks described below. In consultation with your own financial and legal advisors, you should carefully consider the information included in or incorporated by reference in this prospectus, and pay special attention to the following discussion of risks relating to the New Notes before deciding whether to exchange Old Notes for New Notes. In addition to the risk factors relating to the New Notes set forth below, we also specifically incorporate by reference into this prospectus the section captioned “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2021 and the other reports filed with the SEC incorporated by reference into this prospectus. The New Notes will not be an appropriate investment for you if you are not knowledgeable about significant features of the New Notes or financial matters in general. You should not exchange Old Notes for New Notes unless you understand, and know that you can bear, these investment risks.
Risks Related to the Exchange Offer
If you choose not to exchange your Old Notes in the exchange offer, the transfer restrictions currently applicable to your Old Notes will remain in force and the market price and liquidity of your Old Notes may decline.
If you do not exchange your Old Notes for New Notes in the exchange offer, then your Old Notes will remain outstanding and will continue to accrue interest but will remain subject to the transfer restrictions set forth in the Indenture and in the legend on the certificates evidencing the Old Notes, as well as the restrictions on transfer arising under the Securities Act and any other applicable securities laws, and you will not be entitled to receive any Additional Interest on your Old Notes and will not be entitled to any registration rights or other rights under the Registration Rights Agreement (subject to possible limited exceptions). In general, you may offer or sell your Old Notes only if:
| · | they are offered and sold pursuant to a registration statement which is effective under, and otherwise in compliance with the registration and prospectus delivery requirements of, the Securities Act, or |
| · | they are offered and sold under an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, |
subject, in each of the foregoing cases, to compliance with the securities laws of any other applicable jurisdiction and with the procedures specified in the Indenture, including the delivery of any certificate, opinion of counsel or other information that may be required by the Indenture or by us. We do not intend to register the Old Notes under the Securities Act or to make a prospectus available to enable you to sell or otherwise transfer your Old Notes.
Any Old Notes exchanged for New Notes in the exchange offer will be cancelled and, as a result, the aggregate principal amount of outstanding Old Notes will be reduced, which may have a material adverse effect on the market price and liquidity of any Old Notes that remain outstanding after the exchange offer and may increase the volatility of the market price of such Old Notes.
You must follow the exchange offer procedures carefully in order to receive the New Notes.
If you do not follow the procedures described in this prospectus and the related letter of transmittal, you will not receive any New Notes. The New Notes will be issued to you in exchange for Old Notes only if you properly tender the Old Notes and deliver all other required documentation (including, in the case of Old Notes tendered through DTC’s ATOP procedures, Agent’s Messages, Book-Entry Confirmations and any other documents delivered electronically through the DTC system) to the Exchange Agent in the manner and at the address specified in this prospectus and in the letter of transmittal prior to the expiration of the exchange offer. If you want to tender your Old Notes in exchange for New Notes, you should allow sufficient time to ensure timely delivery. No one is under any obligation to notify you of defects or irregularities with respect to tenders of your Old Notes for exchange or if your Old Notes or any other required documentation are received by the Exchange Agent. If you are the beneficial holder of Old Notes that are held through a broker, dealer, bank or other financial institution or nominee and you wish to tender such Old Notes in the exchange offer, you should promptly contact the entity through which you hold your Old Notes and instruct that entity to tender on your behalf. There are no guaranteed delivery procedures available in connection with the exchange offer. Accordingly, you must deliver your Old Notes and all other required documentation to the Exchange Agent in accordance with the procedures described in this prospectus and the letter of transmittal prior to the expiration of the exchange offer.
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Certain persons who participate in the exchange offer must deliver a prospectus in connection with resales of the New Notes.
If you are participating in the exchange offer for the purpose of participating in a distribution (within the meaning of the Securities Act) of the New Notes to be acquired in the exchange offer, if you are a broker-dealer who will receive New Notes in the exchange offer in exchange for Old Notes that you acquired from us for resale pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act, or if you fall into one or more of categories (1) through (3) appearing in the first paragraph under “The Exchange Offer—Resales of New Notes,” you will not be permitted to tender your Old Notes in the exchange offer and, in the absence of an applicable exemption, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any offer, sale or other transfer of your Notes. Failure to comply with such registration and prospectus delivery requirements may result in liability under the Securities Act, and we will not be responsible for, or indemnify you against, any such liability.
In addition, a broker-dealer that receives New Notes for its own account in the exchange offer in exchange for Old Notes that it acquired for its own account as a result of its market making or other trading activities (a “participating broker-dealer”) must deliver (or, to the extent permitted by applicable law, make available) a prospectus meeting the requirements of the Securities Act to purchasers and other transferees in connection with any resale or other transfer of New Notes received in exchange for such Old Notes in the exchange offer. Although a participating broker-dealer (and not any other broker-dealer) is permitted to use this prospectus, as it may be amended or supplemented from time to time, in connection with the resale or other transfer of any such New Notes, it may do so only if it notifies us as provided in the letter of transmittal and may only use this prospectus for such purpose for a period ending on the earlier of (i) 180 days after the registration statement of which this prospectus is a part becomes effective and (ii) the date on which such participating broker-dealer is no longer required to deliver a prospectus in connection with resales of New Notes (subject, in each case, to our right to suspend use of the prospectus under the circumstances described under “Plan of Distribution”).
Risks Related to the New Notes
The Indenture does not limit the amount of indebtedness that the Issuer or its subsidiaries may incur.
As of June 30, 2022, we had $2.6 billion of indebtedness. The Issuer is not, and none of its subsidiaries are, restricted from incurring additional indebtedness or other liabilities, including issuing additional Notes, under the Indenture except for certain limitations on the Issuer’s ability to incur indebtedness that is secured by a lien on the shares of capital stock of Jackson National Life as described in “Description of the New Notes.” The Issuer expects that the Issuer or its subsidiaries will from time to time incur additional indebtedness and other liabilities. In addition, the Indenture does not restrict the Issuer or its subsidiaries from paying dividends on or issuing or repurchasing its or their securities. If the Issuer or any of its subsidiaries incurs additional indebtedness or liabilities or undergoes a recapitalization, the Issuer’s ability to pay its obligations on the New Notes could be materially and adversely affected. Any such incurrence of additional indebtedness would increase the risks created by our level of indebtedness.
We intend to return capital to stockholders of approximately 40% to 60% of the annual change in our excess capital, adjusted for any capital contributions and distributions, which could negatively affect our ability to meet our future obligations, including payments of principal and interest on the New Notes.
We intend to return capital to stockholders of approximately 40% to 60% of the annual change in our excess capital, adjusted for any capital contributions and distributions, which could negatively affect our ability to meet our future obligations, including payments of principal and interest on the New Notes and our other indebtedness. On February 28, 2022, our board of directors authorized an increase of $300 million in our existing share repurchase authorization for shares of our common stock. The number of shares to be repurchased and the timing of such transactions will depend on a variety of factors, including market conditions. There are no covenants under the Indenture governing the New Notes limiting our ability to pay dividends or engage in repurchases of our common stock. The use of a portion of our capital for purposes of paying dividends, making other distributions to our stockholders or repurchasing shares of our common stock would reduce the amount of cash available to repay our indebtedness, including payments of principal and interest on the New Notes. See “—The terms of the Indenture and the New Notes provide only limited protection against significant events that could adversely impact your investment in the New Notes.”
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The terms of the Indenture and the New Notes provide only limited protection against significant events that could adversely impact your investment in the New Notes.
The Indenture for the New Notes does not:
| · | require the Issuer to maintain any financial ratios or specific levels of net worth, revenues, income, cash flow or liquidity; |
| · | limit the Issuer’s ability to incur indebtedness or other obligations that are equal in right of payment to the New Notes; |
| · | restrict the Issuer’s subsidiaries’ ability to issue securities or otherwise incur indebtedness or other obligations that would be senior to the Issuer’s equity interests in its subsidiaries and therefore rank effectively senior to the New Notes with respect to the assets of its subsidiaries; |
| · | restrict the Issuer’s ability to repurchase or prepay any of its securities or other indebtedness; |
| · | restrict the Issuer’s ability to make investments or to repurchase, or pay dividends or make other payments in respect of, its common stock or other securities ranking junior to the New Notes; or |
| · | provide for any adjustment to the interest rate on the New Notes in the event the Issuer’s credit rating is downgraded. |
As a result of the foregoing, when evaluating the terms of each series of the New Notes, you should be aware that the terms of the Indenture and the New Notes do not restrict the Issuer’s ability to engage in, or to otherwise be a party to, a variety of corporate transactions, circumstances and events that could have an adverse impact on your investment in the New Notes. See “Description of the New Notes.”
Our ability to meet our obligations and pay interest on the New Notes is dependent upon distributions from our subsidiaries and the New Notes will be effectively subordinated to the obligations of our subsidiaries.
The Issuer is a holding company for all of our operations and a separate legal entity from our subsidiaries. Dividends, interest payments and other distributions from its subsidiaries are the Issuer’s principal source of cash flow to pay principal and interest on its indebtedness (including on the New Notes), to pay corporate expenses, to pay any stockholder dividends, to repurchase stock and to meet its other obligations. The inability to receive dividends from our subsidiaries could have a material adverse effect on our business, financial condition, results of operations and cash flows. The ability of our insurance subsidiaries to pay dividends and make other distributions to us will further depend on their ability to meet applicable regulatory standards and receive regulatory approvals, which are based in part on the prior year’s statutory income, capital and surplus and unassigned funds and require our insurance subsidiaries to hold a specific amount of minimum reserves in order to meet future obligations on their outstanding policies. These regulations specify that the minimum reserves must be sufficient to meet future obligations, after giving consideration to future required premiums to be received, and are based on, among other things, certain specified mortality tables, interest rates and methods of valuation, which are subject to change. In order to meet their claims-paying obligations, our insurance subsidiaries regularly monitor their reserves to ensure they hold sufficient amounts to cover actual or expected contract and claims payments. At times, we may determine that reserves in excess of the minimum are needed to ensure sufficient coverage. Changes in, or reinterpretations of, these regulatory standards could constrain the ability of our subsidiaries to pay dividends or to advance or repay funds in sufficient amounts and at times necessary to meet our debt obligations and corporate expenses. Requiring our insurance subsidiaries to hold additional reserves has the potential to constrain their ability to pay dividends to us. The inability of our insurance subsidiaries to pay dividends to us in an amount sufficient to meet our debt service obligations and other cash requirements could harm our ability to meet our obligations and pay interest on the New Notes.
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Because we are a holding company, our right to participate in any distribution of the assets of our subsidiaries, upon a subsidiary’s dissolution, winding-up, liquidation or reorganization or otherwise, and thus our ability to meet our obligations and pay interest on the New Notes from such distribution, is subject to the prior claims of creditors of any such subsidiary, except to the extent that we may be a creditor of that subsidiary and our claims are recognized. Our subsidiaries are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay amounts due under our contracts or otherwise to make any funds available to us. Accordingly, our obligations and the payments of interest on the New Notes will be effectively subordinated to all liabilities of our subsidiaries, including obligations to policyholders. As of June 30, 2022, the Issuer’s subsidiaries had consolidated indebtedness of $313 million and the Issuer’s insurance subsidiaries had $271.8 billion in combined liabilities to policyholders and contract holders, including separate accounts, all of which would effectively rank senior to the New Notes upon our liquidation.
The New Notes are effectively subordinated to any future secured debt of the Issuer and its subsidiaries.
The New Notes will be the Issuer’s senior unsecured obligations and will rank equally in right of payment with all of the Issuer’s existing and future unsecured senior indebtedness, including any borrowings under our revolving credit facility. The New Notes will be effectively subordinated to any secured indebtedness of the Issuer and its subsidiaries to the extent of the value of the collateral securing such indebtedness. The Issuer may incur secured indebtedness in the future, subject to the covenant described under “Description of the New Notes—Limitation on Liens.” That covenant, however, only limits the Issuer’s ability to incur indebtedness that is secured by a lien on the capital stock of Jackson National Life, and will not prevent the Issuer from granting liens over other assets.
There is currently no market for the New Notes, and we cannot assure you that an active trading market for the New Notes will develop. The New Notes may trade at prices below the price you paid for them.
Currently, there is no market for the New Notes, and we do not intend to apply for listing of any series of the New Notes on any securities exchange or automated quotation system. Accordingly, there can be no assurances that a trading market for the New Notes will ever develop or will be maintained. Further, there can be no assurances as to the liquidity of any market that may develop for the New Notes, your ability to sell your New Notes or the price at which you will be able to sell your New Notes. Future trading prices of the New Notes will depend on many factors, including prevailing interest rates, our financial condition and results of operations, the then-current ratings assigned to the New Notes and the market for similar securities. Any trading market that develops may be affected by many factors independent of and in addition to the foregoing, including:
| · | time remaining to the maturity of the New Notes; |
| · | outstanding amount of the New Notes; |
| · | the terms related to optional redemption of the New Notes; and |
| · | level, direction and volatility of market interest rates generally. |
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If an active trading market for the New Notes does develop, general market conditions and unpredictable factors could adversely affect market prices for the New Notes.
There can be no assurance about the market prices for the New Notes. Several factors, many of which are beyond our control, will influence the market prices of the New Notes. The market price of the New Notes depends on many factors, including:
| · | our operating performance, financial condition and prospects, or the operating performance, financial condition and prospects of our competitors; |
| · | our creditworthiness; |
| · | the financial strength ratings of our insurance subsidiaries; |
| · | the ratings given to our securities by credit rating agencies, including the ratings given to the New Notes; |
| · | prevailing interest rates; |
| · | economic, financial, geopolitical, regulatory or judicial events affecting us or the financial markets generally, including the impact of COVID-19 and related economic conditions; |
| · | the market for similar securities; and |
| · | other risks, uncertainties and factors, including those discussed under “Forward-Looking Statements—Cautionary Language” and “Risk Factors” in this prospectus and the risk factors and other information in our Annual Report on Form 10-K for the year ended December 31, 2021, and in our other filings with the SEC incorporated by reference into this prospectus. |
A downgrade, suspension or withdrawal of, or change in, the methodology used to determine any rating assigned by a rating agency to us or our securities, including the New Notes, could cause the liquidity or trading price of the New Notes to decline significantly.
Real or anticipated changes in the credit ratings assigned to the New Notes or our credit ratings generally could affect the trading price of the New Notes. Credit ratings are not a recommendation to buy, sell or hold any security, and may be revised or withdrawn at any time by the issuing organization in its sole discretion. In addition, credit rating agencies continually review their ratings for the companies that they follow, including us. The credit rating agencies also evaluate the financial services industry as a whole and may change their credit rating for us and our securities, including the New Notes, based on their overall view of our industry. A downgrade, withdrawal, or the announcement of a possible downgrade or withdrawal of the ratings assigned to the New Notes, us or our other securities, or any perceived decrease in our creditworthiness could cause the trading price of the New Notes to decline significantly.
The rating agencies that currently or may in the future publish a rating for us or the New Notes may from time to time in the future change the methodologies that they use for analyzing securities with features similar to the New Notes. This may include, for example, changes to the relationship between ratings assigned to an issuer’s senior securities and ratings assigned to securities with features similar to the New Notes, which is sometimes called “notching”. If the rating agencies change their practices for rating these securities in the future, and the ratings of the New Notes are subsequently lowered or “notched” further, the trading price of the New Notes could be negatively affected.
The Issuer may redeem the New Notes prior to their maturity date and you may not be able to reinvest the proceeds in a comparable security.
The Issuer may redeem some or all of the New Notes at any time or from time to time at the redemption prices described in “Description of the New Notes—Optional Redemption.” In the event the Issuer chooses to redeem your New Notes, you may not be able to reinvest the redemption proceeds in an investment that results in a return comparable to the New Notes.
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We will not receive any proceeds from the exchange offer. Any Old Notes that are properly tendered and exchanged pursuant to the exchange offer will be cancelled.
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On November 23, 2021, we completed a private offering of $600,000,000 aggregate principal amount of 1.125% Senior Notes due 2023, $500,000,000 aggregate principal amount of 3.125% Senior Notes due 2031 and $500,000,000 aggregate principal amount of 4.000% Senior Notes due 2051 in a transaction that was not registered under the Securities Act. The Old Notes may not be reoffered, resold or otherwise transferred except pursuant to a registration statement which is effective under, and otherwise in compliance with the registration and prospectus delivery requirements of, the Securities Act, or under an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and subject, in each of the foregoing cases, to compliance with the securities laws of any other applicable jurisdiction and with the procedure specified in the Indenture, including the delivery of any certificate, opinion of counsel or other information that may be required by the Indenture or by us. Accordingly, in connection with the offering of the Old Notes, we entered into the Registration Rights Agreement in which we agreed, among other things and on the terms and subject to the conditions set forth therein, to use our reasonable best efforts to (1) complete an offer to exchange the Old Notes for New Notes that have been registered under the Securities Act no later than December 31, 2022 or (2) if such exchange offer is not consummated by such date, to file and keep effective for a specified period of time a shelf registration with respect to resales of the Old Notes. The exchange offer is being made pursuant to the Registration Rights Agreement.
For purposes of the information appearing under this caption “The Exchange Offer,” references to “Jackson Financial Inc.,” “the Company,” “we,” “our,” “us” and similar references refer only to Jackson Financial Inc. and not its subsidiaries or any entities that are consolidated with it for financial reporting purposes, unless otherwise expressly stated or the context otherwise requires.
Terms of the Exchange Offer; Period for Tendering Old Notes
On the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, we are offering to issue up to $600,000,000 aggregate principal amount of 1.125% Senior Notes due 2023, up to $500,000,000 aggregate principal amount of 3.125% Senior Notes due 2031 and up to $500,000,000 aggregate principal amount of 4.000% Senior Notes due 2051, in each case in exchange for a like aggregate principal amount of Old Notes of the corresponding series. We will accept for exchange Old Notes of any series which are validly tendered and not validly withdrawn prior to 5:00 p.m., New York City time, on the expiration date unless we terminate the exchange offer. As used herein, the term “expiration date” means , 2022 (which is the 20th business day following the date of this prospectus), except that if we, in our sole and absolute discretion, extend the period of time during which the exchange offer is open, “expiration date” shall mean the latest date to which the exchange offer has been extended. In exchange for each $1,000 aggregate principal amount of Old Notes validly tendered and not validly withdrawn by the holder thereof prior to 5:00 p.m., New York City time, on the expiration date of the exchange offer and accepted for exchange by us, all on the terms and subject to the conditions set forth in the letter of transmittal and in this prospectus, the tendering holder will receive $1,000 aggregate principal amount of New Notes of the corresponding series.
As of the date of this prospectus, $1.6 billion aggregate principal amount of Old Notes are outstanding. This prospectus, together with the letter of transmittal and related documentation, is first being sent on the date hereof to all registered holders of Old Notes whose names appear in the registry books maintained by the registrar for the Old Notes.
We expressly reserve the right, at any time and from time to time in our sole and absolute discretion, to extend the period of time during which the exchange offer is open by giving written notice of such extension to the registered holders of the Old Notes as described below, and to delay acceptance for exchange of any Old Notes. During any such extension or delay, all Old Notes previously tendered will remain subject to the exchange offer and may be accepted for exchange by us.
We expressly reserve the right, in our sole and absolute discretion, to amend the exchange offer and, upon the occurrence of any of the conditions to the exchange offer specified under “—Conditions to the Exchange Offer,” to not accept for exchange any Old Notes and to terminate the exchange offer. We will give prompt notice of any extension of the exchange offer, any such amendment that we determine, in our sole and absolute discretion, to constitute a material change in the exchange offer, and of any such termination to registered holders of Old Notes in such manner as we may elect, which may include, without limitation, by means of a press release or other public announcement or by means of electronic notification through DTC’s procedures; provided that, in the case of any extension of the exchange offer, we will give such notice by means of a press release or other public announcement no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.
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Procedures for Tendering Old Notes
The tender to us of Old Notes by you as set forth in this prospectus and the letter of transmittal and our acceptance of such Old Notes will constitute a binding agreement between us and you upon the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal.
The Old Notes of each series currently are in book-entry form and represented by one or more Global Old Notes registered in the name of DTC or its nominee. You will not be entitled to receive Certificated Old Notes in exchange for your beneficial interest in Global Old Notes except under the limited circumstances described under “Book-Entry, Delivery and Form.” Accordingly, so long as your Old Notes are in book-entry form represented by one or more Global Old Notes, you must tender your Old Notes pursuant to DTC’s ATOP procedures and the other procedures described in this prospectus and the related letter of transmittal.
So long as the Old Notes are in book-entry form represented by one or more Global Old Notes, you need not deliver a signed letter of transmittal to the Exchange Agent so long as your Old Notes are tendered in accordance with DTC’s ATOP procedures and the Exchange Agent receives an Agent’s Message prior to 5:00 p.m., New York City time, on the expiration date. In all other cases, a letter of transmittal must be manually executed and delivered as described in this prospectus and the letter of transmittal.
If you wish to tender your Old Notes pursuant to the exchange offer, you must, among other things, deliver or cause to be delivered to the Exchange Agent prior to 5:00 p.m., New York City time, on the expiration date either:
| · | a properly completed and duly executed letter of transmittal, with any required signature guarantees, together with any other required documentation, all of which must be delivered to the Exchange Agent in the manner and at the address set forth in this prospectus; or |
| · | so long as your Old Notes are in book-entry form, a computer generated message transmitted by DTC to and received by the Exchange Agent and forming a part of the Book Entry Confirmation (as defined below) stating that the holder of the Old Notes acknowledges and agrees to be bound by the terms of the letter of transmittal (an “Agent’s Message”). |
In addition, you must also deliver or cause to be delivered to the Exchange Agent prior to 5:00 p.m., New York City time, on the expiration date either:
| · | so long as your Old Notes are in book-entry form, an electronic confirmation from DTC of the book entry transfer of your Old Notes into the Exchange Agent’s account at DTC (a “Book-Entry Confirmation”); or |
| · | in the event certificated Notes are issued, the Certificated Old Notes you are tendering, in proper form for transfer and with any required signature guarantees and any other required documentation, all of which must be delivered to the Exchange Agent, together with your signed letter of transmittal and other required documents, in the manner and at the address set forth in this prospectus. |
You may tender any or all of your Old Notes; provided that Old Notes may only be tendered in denominations of $2,000 and integral multiples of $1,000 in excess thereof and, if any Old Note is tendered in part, the untendered portion of such Old Note must be a denomination of $2,000 or an integral multiple of $1,000 in excess thereof. For further information, see “—Book-Entry Transfers.”
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To receive confirmation of a tender of Old Notes, you should contact the Exchange Agent at the telephone number listed under “—Exchange Agent.”
If you are the beneficial owner of Old Notes in book-entry form that are held through or registered in the name of a broker, dealer, bank or other financial institution or nominee and you wish to tender those Old Notes in the exchange offer, you must promptly instruct such broker, dealer, bank or other financial institution or nominee, as the case may be, to tender those Old Notes on your behalf prior to the expiration of the exchange offer or, if you are a direct participant in DTC, you may give those instructions directly to DTC. So long as the Old Notes are in book-entry form represented by one or more Global Old Notes, this is the only manner in which you will be able to tender your Old Notes.
If Certificated Old Notes are issued and you are the beneficial owner of Certificated Old Notes that are held through or registered in the name of a broker, dealer, bank or other financial institution or nominee and you wish to tender those Certificated Old Notes in the exchange offer, you must promptly instruct such broker, dealer, bank or other financial institution or nominee, as the case may be, to tender those Certificated Old Notes on your behalf prior to the expiration of the exchange offer or, if you wish to tender those Certificated Old Notes yourself, then, prior to completing and executing the letter of transmittal and delivering your Certificated Old Notes, you must either make appropriate arrangements to register ownership of those Certificated Old Notes in your own name or obtain a properly completed bond power (with any required signature guarantee) from the registered holder of those Certificated Old Notes. The transfer of registered ownership may take considerable time.
If a holder completing a letter of transmittal tenders less than all of the Old Notes held by such holder, the tendering holder should indicate the aggregate principal amount of Old Notes it is tendering by filling in the applicable box of the letter of transmittal. All Old Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated.
The method of delivery (whether physical or electronic) of Old Notes, letters of transmittal, Agent’s Messages, Book-Entry Confirmations and all other required documents is at your risk and election, provided that Old Notes in book-entry form must be tendered through DTC’s ATOP procedures. If such delivery is by mail, it is recommended that you use registered mail, properly insured, with return receipt requested. In all cases, you should allow sufficient time to insure delivery to the Exchange Agent before 5:00 p.m., New York City time, on the expiration date. You may request the broker, dealer, bank or other financial institution or nominee through which you may hold Old Notes to effect these transactions for you. No letter of transmittal, Old Notes or other documents should be sent to us.
Signatures on a letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed unless the Old Notes surrendered for exchange are tendered:
| · | by a holder of the Old Notes who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on the letter of transmittal, or |
| · | for the account of an Eligible Institution (as defined below). |
In the event that signatures on a letter of transmittal or a notice of withdrawal are required to be guaranteed, such guarantees must be by a firm which is a member of the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange Medallion Program (each such entity being hereinafter referred to as an “Eligible Institution”).
When a letter of transmittal is signed by the registered holder or holders of the Old Notes being tendered, no endorsements of the certificates evidencing such Old Notes or separate bond powers are required. If, however, the New Notes are to be issued, or any untendered Old Notes are to be reissued, in the name of a person other than such registered holder or holders, then such certificates must be endorsed or accompanied by appropriate bond powers (satisfactory to the Company and the Exchange Agent in their sole and absolute discretion), in each case signed exactly as the name or names of the registered holder or holders, as the case may be, appear on the applicable certificates and the signatures on such certificates or bond powers, as the case may be, must be guaranteed by an Eligible Institution.
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If a letter of transmittal is signed by a person or persons other than the registered holder or holders, as the case may be, of the certificates evidencing the Old Notes being tendered, such certificates must be endorsed or accompanied by appropriate bond powers (satisfactory to the Company and the Exchange Agent in their sole and absolute discretion), in each case signed exactly as the name or names of the registered holder or holders, as the case may be, appear on the applicable certificates and the signatures on such certificates or bond powers, as the case may be, must be guaranteed by an Eligible Institution.
We in our sole and absolute discretion will make a final and binding determination on all questions as to the validity, form, eligibility (including time of receipt) and acceptance of Old Notes tendered for exchange. We reserve the absolute right to reject any and all tenders of any Old Notes not properly tendered and to not accept any Old Notes which acceptance might, in our judgment or our counsel’s, be unlawful. We also reserve the right, in our sole and absolute discretion, to waive any defects or irregularities or conditions of the exchange offer as to any Old Notes either before or after the expiration of the exchange offer (including the right to waive the ineligibility of any holder or beneficial owner who seeks to tender Old Notes in the exchange offer). Our interpretation of the terms and conditions of the exchange offer (including the letter of transmittal and instructions thereto) as to any particular tender of Old Notes or holder or beneficial owner thereof either before or after the expiration of the exchange offer will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Old Notes for exchange must be cured within a reasonable period of time, as we in our sole and absolute discretion may determine. We are not, nor is the Exchange Agent or any other person, under any duty to notify you or any other person of any defect or irregularity with respect to your tender of Old Notes for exchange, or if any Old Notes, letters of transmittal, Agent’s Messages, Book-Entry Confirmations or other documents are or are not received by the Exchange Agent, and no one will be liable for failing to provide such notification.
If any letter of transmittal, Old Note, bond powers or other instruments of transfer or other documents are signed by or on behalf of 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. Unless waived by us or the Exchange Agent, proper evidence satisfactory to us and the Exchange Agent of their authority to so act must be submitted with the letter of transmittal.
Representations by Tendering Owners
By tendering Old Notes, you will acknowledge, represent and warrant to and agree with us that, among other things, (i) you are not our “affiliate” (as defined in Rule 405 under the Securities Act), (ii) any New Notes you receive in the exchange offer will be acquired by you in the ordinary course of your business, (iii) you have no arrangement or understanding with any person to engage in, and you are not engaged in and do not intend to engage in, the distribution (within the meaning of the Securities Act) of the New Notes in violation of the Securities Act, (iv) you are not a broker-dealer that will receive New Notes in the exchange offer in exchange for Old Notes that you purchased from us for resale pursuant to Rule 144A under the Securities Act or any other available exemption from registration under the Securities Act, and (v) if you are a broker-dealer holding Old Notes acquired for your own account as a result of your market making or other trading activities (a “participating broker-dealer”), you will deliver (or, to the extent permitted by applicable law, make available) a prospectus meeting the requirements of the Securities Act to purchasers and other transferees in connection with any resale or other transfer of the New Notes you receive in exchange for such Old Notes pursuant to the exchange offer (provided, however, by so acknowledging and by delivering (or making available as aforesaid) a prospectus, you will not be deemed to admit that you are an “underwriter” within the meaning of the Securities Act). For additional information, see “—Resales of New Notes” and “Plan of Distribution” below.
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By tendering Old Notes, you will also acknowledge, represent and warrant to and agree with us that you have full right, power and authority to tender, sell, assign and transfer all right, title and interest in and to the Old Notes tendered and to acquire New Notes issuable upon the exchange of such tendered Old Notes and that, if and when such Old Notes are validly tendered and accepted by us for exchange, we will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim.
If you are unable to make these and other acknowledgements, representations, warranties and agreements in the letter of transmittal, or if you are participating in the exchange offer for the purpose of participating in a distribution (within the meaning of the Securities Act) of the New Notes to be acquired in the exchange offer, or if you are a broker-dealer that will receive New Notes in the exchange offer in exchange for Old Notes that you acquired from us for resale pursuant to Rule 144A under the Securities Act or any other available exemption from registration under the Securities Act, you will not be permitted to exchange your Old Notes in the exchange offer and you will be subject to other consequences described below under “—Resales of New Notes.”
Acceptance of Old Notes for Exchange; Delivery of New Notes
Upon satisfaction or waiver of all of the conditions to the exchange offer, we will accept, promptly after the expiration of the exchange offer, all Old Notes validly tendered and not validly withdrawn and, promptly after acceptance of the Old Notes, we will issue New Notes in an aggregate principal amount equal to the aggregate principal amount of Old Notes so accepted. See “—Conditions to the Exchange Offer.” For purposes of the exchange offer, we will be deemed to have accepted validly tendered Old Notes for exchange if and when we give oral (confirmed in writing) or written notice to the Exchange Agent.
A holder of Old Notes accepted for exchange will receive New Notes of the corresponding series in an aggregate principal amount equal to the aggregate principal amount of such Old Notes. Persons who are the registered holders of the New Notes at the close of business on the record date for the first interest payment date following the consummation of the exchange offer will be entitled to receive interest accrued on the New Notes from and including the most recent date to which interest has been paid on the Old Notes to but excluding such first interest payment date; provided that, notwithstanding the foregoing, if such record date occurs prior to the consummation of the exchange offer, then the interest payable on the first interest payment date following the consummation of the exchange offer will instead be paid to the persons who were the registered holders of the Old Notes that were exchanged for such New Notes at the close of business on such record date. Interest will cease to accrue on Old Notes that are exchanged for New Notes of the corresponding series pursuant to the exchange offer and holders and beneficial owners of Old Notes will not be entitled to receive any payments in respect of accrued and unpaid interest on Old Notes that are exchanged for New Notes of the corresponding series except as described in the immediately preceding sentence.
In all cases, issuance of New Notes for Old Notes that are accepted for exchange will be made only after timely receipt by the Exchange Agent of:
| · | certificates for such Old Notes or a Book-Entry Confirmation of the transfer of such Old Notes into the Exchange Agent’s account at DTC, |
| · | a properly completed and duly executed letter of transmittal (with the signature on such letter of transmittal guaranteed by an Eligible Institution if the letter of transmittal so requires) or an Agent’s Message in lieu thereof, and |
| · | all other required documents. |
Any Old Notes which have been tendered for exchange but which are not exchanged for any reason (including, without limitation, because the tender of those Old Notes has been properly withdrawn, because we do not accept those Old Notes for exchange or terminate the exchange offer, or if the tendering holders properly indicate that only a portion of the Old Notes being tendered are to be exchanged for New Notes), such Old Notes will be returned to the holders thereof (or, in the case of Old Notes tendered by book-entry transfer, will be credited to the accounts at DTC of the applicable DTC participants), unless any such holders completed the box entitled “Special Delivery Instructions” in the letter of transmittal, in which case such Old Notes shall be returned to the person specified in such instructions, without cost to such holders, promptly after withdrawal of such Old Notes or expiration or termination of the exchange offer, as the case may be.
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Book-Entry Transfers
For purposes of the exchange offer, the Exchange Agent will request that an account be established with respect to the Old Notes at DTC, unless the Exchange Agent has already established an account with DTC suitable for the exchange offer. Any financial institution that is a direct participant in DTC (a “participant”) may make book-entry delivery of Old Notes by causing DTC to transfer such Old Notes into the Exchange Agent’s account at DTC in accordance with DTC’s procedures for transfer and by causing DTC to deliver an Agent’s Message and a Book-Entry Confirmation complying with the terms of the exchange offer to the Exchange Agent through DTC.
Any DTC participant wishing to tender Old Notes in the exchange offer (whether on its own behalf or on behalf of the beneficial owner of Old Notes) should transmit its acceptance to DTC sufficiently far in advance of the expiration of the exchange offer so as to permit DTC to take the following actions prior to 5:00 p.m., New York City time, on the expiration date. DTC will verify such acceptance, execute a book-entry transfer of the tendered Old Notes into the Exchange Agent’s account at DTC and then send to the Exchange Agent a Book-Entry Confirmation of such book-entry transfer. The Book-Entry Confirmation of such book-entry transfer will include an Agent’s Message confirming that such DTC participant acknowledges and agrees (on behalf of itself and on behalf of any beneficial owner of the applicable Old Notes) to be bound by the letter of transmittal. All of the foregoing, together with any other required documents, must be delivered to and received by the Exchange Agent prior to 5:00 p.m., New York City time, on the expiration date.
Withdrawal Rights
You may withdraw, no later than 5:00 p.m., New York City time, on the expiration date of the exchange offer, any Old Notes that you have tendered in the exchange offer. For a withdrawal of tendered Old Notes to be effective, the Exchange Agent must receive, in the case of Old Notes tendered pursuant to DTC’s ATOP procedures, an electronic notice of withdrawal transmitted by DTC on behalf of the DTC participant that tendered such Old Notes or, in the case of Certificated Old Notes, if any, tendered by physical delivery, a written (which may be given by letter or telegram), electronic mail or facsimile notice of withdrawal at the address, electronic mail address or facsimile number set forth below under “—Exchange Agent,” in each case no later than 5:00 p.m., New York City time, on the expiration date. The notice of withdrawal must:
| · | specify the name of the person having tendered the Old Notes to be withdrawn and, if different, the name of the registered holder of such Old Notes (or, in the case of Old Notes tendered by book-entry transfer, the name and DTC account number of the DTC participant that tendered such Old Notes), |
| · | identify the Old Notes to be withdrawn (including the CUSIP numbers and, in the case of Certificated Old Notes, the certificate numbers thereof) and principal amount of such Old Notes, |
| · | in the case of Old Notes tendered through DTC’s ATOP procedures, specify the name and account number at DTC to which your withdrawn Old Notes should be credited, |
| · | in the case of Certificated Old Notes physically delivered to the Exchange Agent, be signed by the same person and in the same manner as the original letter of transmittal, including any signature guarantees (or, in the case of Old Notes tendered by book-entry transfer, be signed by or transmitted on behalf of the same DTC participant that tendered such Old Notes), or be accompanied by evidence satisfactory to us and the Exchange Agent that the person withdrawing the tender has succeeded to the beneficial ownership of those Old Notes, |
| · | contain a statement that the holder is withdrawing its election to have the Old Notes exchanged, and |
| · | if the letter of transmittal was executed by a person other than the registered holder, be accompanied by a properly completed irrevocable proxy authorizing such person to effect such withdrawal on behalf of such registered holder. |
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The signature on a notice of withdrawal must be guaranteed by an Eligible Institution unless the applicable Old Notes were tendered by an Eligible Institution and the notice of withdrawal is being signed by the same Eligible Institution, and the signature on any such irrevocable proxy must be guaranteed by an Eligible Institution unless the signatory to such proxy is an Eligible Institution.
Properly withdrawn Old Notes may be retendered by following the procedures described under “—Procedures for Tendering Old Notes” above and in the letter of transmittal at any time prior to 5:00 p.m., New York City time, on the expiration date.
All questions as to the validity, form and eligibility (including time of receipt) of such notices of withdrawal and all other documents submitted and procedures followed in connection therewith will be determined by us in our sole and absolute discretion (which power may be delegated to the Exchange Agent), which determination shall be final and binding on all parties. Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer and no New Notes will be issued with respect thereto unless the Old Notes so withdrawn are validly retendered and not validly withdrawn and are accepted by us.
Conditions to the Exchange Offer
Notwithstanding any other term of the exchange offer, the exchange offer will be subject to customary conditions, including that (i) the exchange offer does not, in our judgment, violate any applicable law or any applicable interpretation of the staff of the SEC, (ii) the due tendering of Old Notes in accordance with the terms of the exchange offer and (iii) no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency relating to the exchange offer which, in our judgment, could reasonably be expected to impair our ability to proceed with the exchange offer.
The foregoing conditions are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to any condition and any or all such conditions may be waived by us at any time or from time to time in our sole and absolute discretion. Our failure at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted at any time.
In addition, we will not accept for exchange any Old Notes tendered, and no New Notes will be issued in exchange for any such Old Notes, if at such time any stop order suspending the effectiveness of the registration statement of which this prospectus is a part is threatened or in effect. In any such event, we must use commercially reasonable efforts to obtain the withdrawal of such stop order.
No Guaranteed Delivery
There are no guaranteed delivery procedures available in connection with the exchange offer. Accordingly, holders of Old Notes must deliver or cause to be delivered their Old Notes and all other required documentation to the Exchange Agent in accordance with the procedures described in this prospectus and the letter of transmittal prior to 5:00 p.m., New York City time, on the expiration date.
No Appraisal or Dissenters’ Rights
Holders of the Old Notes do not have any appraisal or dissenters’ rights in connection with the exchange offer.
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Exchange Agent
We have appointed The Bank of New York Mellon as the Exchange Agent for the exchange offer. All executed letters of transmittal, Certificated Old Notes (if any), and other documents must be delivered to the address or the facsimile number set forth below, except that Old Notes in book-entry form, Book-Entry Confirmations, Agent’s Messages, notices of withdrawal given through ATOP procedures and other electronic messages delivered through DTC must be delivered to the Exchange Agent through DTC’s systems and procedures. Questions, requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal should be directed to the Exchange Agent addressed as follows:
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By Hand, Overnight Delivery or Mail
|
By Facsimile Transmission: |
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The Bank of New York Mellon, as Exchange Agent Dallas,
Texas 75201 |
(732) 667-9408 Attention: Sherma Thomas Your fax cover sheet should provide a call-back number and request a call back, upon receipt. |
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To confirm receipt or for more information, call: (315) 414-3362 Or use email: CT_REORG_UNIT_INQUIRIES@bnymellon.com | |
DELIVERY OF A LETTER OF TRANSMITTAL, NOTICE OF WITHDRAWAL, CERTIFICATED OLD NOTES (IF ANY) AND OTHER DOCUMENTS TO AN ADDRESS OR BY FACSIMILE TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN AS SHOWN ABOVE, AND ELECTRONIC DELIVERY OF OLD NOTES IN BOOK-ENTRY FORM, BOOK-ENTRY CONFIRMATIONS, AGENT’S MESSAGES, NOTICES OF WITHDRAWAL GIVEN THROUGH THE ATOP PROCEDURES AND OTHER ELECTRONIC DOCUMENTS TRANSMITTED TO THE EXCHANGE AGENT OTHER THAN THROUGH DTC’S SYSTEMS AND PROCEDURES, DOES NOT CONSTITUTE A VALID DELIVERY.
Fees and Expenses
We will pay the Exchange Agent’s customary fees for its services, reimburse the Exchange Agent for its reasonable out-of-pocket expenses incurred in connection with the provision of these services and generally pay other registration expenses, including fees and expenses of the Trustee under the Indenture, SEC filing fees, and printing and distribution expenses. We will not pay any discounts, fees or commissions, or make any other payments, to brokers, dealers or others soliciting acceptances of the exchange offer. We will, however, upon written request, reimburse brokers, dealers, commercial banks, trust companies and other nominees for their reasonable and documented out-of-pocket expenses incurred in mailing copies of this prospectus, the letter of transmittal and any related documents to beneficial owners of Old Notes.
Additional solicitation may be made by telephone, facsimile or in person by our and our affiliates’ officers and employees and by persons so engaged by us.
Transfer Taxes
We will pay all transfer taxes, if any, applicable to the transfer of Old Notes to us or upon our order pursuant to the exchange offer. If, however, New Notes and/or Old Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the tendered Old Notes, if tendered Old Notes are registered in the name of any person other than the person signing the letter of transmittal, or if a transfer tax is imposed for any reason other than the transfer of Old Notes to us or upon our order pursuant to the exchange offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of the payment of such taxes or an exemption therefrom is not submitted to the Exchange Agent with the delivery of the applicable letter of transmittal to the Exchange Agent or, in the case of Old Notes in book-entry form, contemporaneously with the tender of such Old Notes, the amount of such transfer taxes will be billed to such tendering holder or we may refuse to accept the Old Notes tendered by such holder.
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Accounting Treatment
We will record the New Notes at the same carrying value as the Old Notes, as reflected in our accounting records on the date of the exchange. Accordingly, we will not recognize any gain or loss for accounting purposes. The costs of the exchange offer will be expensed as they are incurred.
Consequences of Not Exchanging Old Notes
If you do not exchange your Old Notes for New Notes in the exchange offer, your Old Notes will remain outstanding and will continue to accrue interest but will remain subject to the restrictions on transfer set forth in the Indenture and in the legend on the certificates evidencing the Old Notes, as well as the restrictions on transfer arising under the Securities Act and any other applicable laws, and you will not be entitled to receive any Additional Interest on your Old Notes and will not be entitled to any registration rights or (subject to possible limited exceptions) other rights under the Registration Rights Agreement. In general, you may offer or sell your Old Notes only if:
| · | they are offered and sold pursuant to a registration statement which is effective under, and otherwise in compliance with the registration and prospectus delivery requirements of, the Securities Act, or |
| · | they are offered and sold under an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, |
subject, in each of the foregoing cases, to compliance with the securities laws of any other applicable jurisdiction and with the procedures specified in the Indenture, including the delivery of any certificate, opinion of counsel or other information that may be required by the Indenture or by us. We do not intend to register the Old Notes under the Securities Act or to make a prospectus available to enable you to sell or otherwise transfer your Old Notes.
In addition, the exchange offer may have a material adverse effect on the market price and liquidity of any Old Notes that remain outstanding following the exchange offer. See “Risk Factors—Risks Related to the Exchange Offer—If you choose not to exchange your Old Notes in the exchange offer, the transfer restrictions currently applicable to your Old Notes will remain in force and the market price and liquidity of your Old Notes may decline.”
Resales of New Notes
Based on interpretations by the staff of the SEC contained in no-action letters issued to third parties (for example, Exxon Capital Holdings Corporation (May 13, 1988), Morgan Stanley & Co. Incorporated (June 5, 1991) and Shearman & Sterling (July 2, 1993)), we believe that, except as provided in the next sentence and in the second succeeding paragraph, the New Notes you receive in the exchange offer may be offered for resale, resold or otherwise transferred by you without compliance with the registration and prospectus delivery requirements of the Securities Act unless:
| (1) | you are our “affiliate” (as defined in Rule 405 under the Securities Act); |
| (2) | the New Notes you receive in the exchange offer will not be acquired by you in the ordinary course of your business; or |
| (3) | you have an arrangement or understanding with any person to engage in, or you are engaged in or intend to engage in, the distribution (within the meaning of the Securities Act) of the New Notes in violation of the Securities Act. |
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However, if you are a broker-dealer holding Old Notes acquired for your own account as a result of market-making or other trading activities and who receives New Notes in exchange for such Old Notes pursuant to the exchange offer (a “participating broker-dealer”), you may be an “underwriter” within the meaning of the Securities Act and you must (and must acknowledge and agree that you will) deliver (or, to the extent permitted by applicable law, make available) a prospectus meeting the requirements of the Securities Act to purchasers and other transferees in connection with any resale or other transfer of such New Notes. However, by so acknowledging and delivering a prospectus, a participating broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. A participating broker-dealer may use this prospectus, as amended or supplemented from time to time, in connection with resales or other transfers of New Notes received for its own account in the exchange offer in exchange for Old Notes that it acquired for its own account as a result of market-making or other trading activities for a period ending on the earlier of (i) 180 days after the registration statement of which this prospectus is a part becomes effective and (ii) the date on which such participating broker-dealer is no longer required to deliver a prospectus in connection with resales of New Notes (subject, in each case, to our right to suspend use of this prospectus under the circumstances described under “Plan of Distribution”), so long as such participating broker-dealer has notified us by delivering a fully completed and executed letter of transmittal to the Exchange Agent at the address set forth above under “—Exchange Agent” prior to 5:00 p.m., New York City time, on the expiration date in which such broker-dealer indicates, by checking the appropriate box, that it will be using this prospectus for such purpose. For further information, see “Plan of Distribution.”
If you fall into one or more of the categories set forth in clauses (1) through (3) of the second preceding paragraph, if you are participating in the exchange offer for the purpose of participating in a distribution (within the meaning of the Securities Act) of the New Notes to be acquired in the exchange offer, or if you are a broker-dealer that will receive New Notes in the exchange offer in exchange for Old Notes that you acquired from us for resale pursuant to Rule 144A under the Securities Act or any other available exemption from registration under the Securities Act, (i) you will not be able to rely on the interpretations of the SEC staff enunciated in the no-action letters mentioned above or in other interpretive letters of similar effect, (ii) you will not be permitted to tender your Old Notes in the exchange offer, (iii) in the absence of an applicable exemption, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any offer, sale or other transfer of Notes, and (iv) any registration statement used in connection with such offer, sale or other transfer of Notes must contain the selling security holder information required by Item 507 of Regulation S-K under the Securities Act. Failure to comply with such registration and prospectus delivery requirements may result in liability under the Securities Act, and we will not be responsible for, or indemnify you against, any such liability. Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer will be deemed to acknowledge and agree that it will deliver (or, to the extent permitted by applicable law, make available) to purchasers and other transferees a prospectus meeting the requirements of the Securities Act in connection with any resale or other transfer of New Notes received in the exchange offer as aforesaid, but only participating broker-dealers will be entitled, subject to the limitations described above, to use this prospectus, as amended or supplemented from time to time, in connection with resales or other transfers of New Notes received in the exchange offer.
We have not entered into any arrangement or understanding with any person who will receive New Notes in the exchange offer to distribute those New Notes following the completion of the exchange offer, and we are not aware of any person that will participate in the exchange offer with a view to distribution (within the meaning of the Securities Act) of the New Notes to be received in the exchange offer.
We do not intend to request the SEC to consider, and the SEC has not considered, the exchange offer in the context of a similar no-action letter. As a result, we cannot guarantee that the staff of the SEC would make a similar determination with respect to the exchange offer as in the circumstances described in the no action letters referred to above.
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The following is a brief summary of the material terms of the New Notes and the Indenture. The following summary does not purport to be complete, and is qualified in its entirety by reference to the Indenture.
As used in this section, the terms “the Issuer,” “we,” “us,” and “our” mean Jackson Financial Inc. as a corporate entity, and not together with its consolidated subsidiaries, unless the context otherwise requires.
General
On November 23, 2021, we issued $1.6 billion aggregate principal amount of Old Notes, all of which are outstanding as of the date of this prospectus. We will issue up to $1.6 billion aggregate principal amount of our New Notes in exchange for a like aggregate principal amount of our outstanding Old Notes in the exchange offer. Any Old Notes of each series that are exchanged for New Notes of the corresponding series pursuant to the exchange offer will be cancelled and, as a result, the aggregate principal amount of outstanding Notes will not increase as a result of the exchange offer. The Old Notes are, and the New Notes will be, issued under an indenture, dated as of November 23, 2021, between the Issuer, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as amended, supplemented or otherwise modified (the “base indenture”), including by (i) the supplemental indenture dated as of November 23, 2021, between the Issuer and the Trustee (the “2023 Notes supplemental indenture”), (ii) the supplemental indenture dated as of November 23, 2021, between the Issuer and the Trustee (the “2031 Notes supplemental indenture”) and (iii) the supplemental indenture dated as of November 23, 2021, between the Issuer and the Trustee (the “2051 Notes supplemental indenture” and, together with the 2023 Notes supplemental indenture and the 2031 Notes supplemental indenture, the “supplemental indentures” and the supplemental indentures, together with the base indenture, as applicable to each series of Notes, the “Indenture”). The terms of the Notes include those expressly set forth in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
The 2023 Notes bear interest at a rate of 1.125% per annum, the 2031 Notes bear interest at a rate of 3.125% per annum and the 2051 Notes bear interest at a rate of 4.000% per annum. Interest on the New 2023 Notes will be payable semi-annually in arrears on each May 22 and November 22, beginning on November 22, 2022, to the persons in whose names the applicable Notes are registered at the close of business on each May 7 and November 7, as the case may be (whether or not a Business Day), immediately preceding such May 22 and November 22. Interest on the New 2031 Notes and the New 2051 Notes will be payable semi-annually in arrears on each May 23 and November 23, beginning on November 23, 2022, to the persons in whose names the applicable Notes are registered at the close of business on each May 8 and November 8, as the case may be (whether or not a Business Day), immediately preceding such May 23 and November 23. The New Notes of each series will accrue interest from the most recent date to which interest has been paid or provided for on the Old Notes of the corresponding series.
The 2023 Notes will mature on November 22, 2023, the 2031 Notes will mature on November 23, 2031 and the 2051 Notes will mature on November 23, 2051.
The Issuer may, without the consent of the holders of the Notes, issue additional Notes having the same terms as the Notes of any series offered hereby so that the existing Notes and the new Notes of the applicable series become part of the applicable series under the Indenture; provided that, if the additional Notes are not fungible with the Notes of the applicable series offered hereby for U.S. federal income tax or other purposes, the additional Notes will have a separate CUSIP number.
The New Notes will be issued only in fully registered form without interest coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Notes are not subject to any sinking fund.
Ranking
The New Notes will be the Issuer’s unsecured and senior obligations and will rank equally in right of payment with all of the Issuer’s other existing and future unsecured and senior indebtedness.
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The Issuer is a holding company with no direct operations. The Issuer conducts all of its business operations through its subsidiaries, meaning it derives substantially all of its operating income from, and holds substantially all of its assets through, its subsidiaries. As a result, the Issuer’s ability to meet its obligations on the New Notes and its other debt obligations depends on its ability to receive distributions from its subsidiaries. The New Notes will not be guaranteed by any subsidiary of the Issuer. These subsidiaries are separate and distinct legal entities and will have no obligation to pay any amounts due on the Issuer’s debt securities, including the New Notes, or to provide the Issuer with funds for its payment obligations, whether by dividends, distributions, loans or otherwise. As a result, the New Notes will be structurally subordinated to all debt, other liabilities (including liabilities to policyholders and contract holders) and preferred equity of the Issuer’s subsidiaries, which means that creditors and preferred equity holders of the subsidiaries will be paid from the subsidiaries’ assets before holders of the New Notes would have any claims to those assets. As of June 30, 2022, the Issuer’s subsidiaries had consolidated indebtedness of $313 million and its insurance subsidiaries had $271.8 billion in combined liabilities to policyholders and contract holders, including separate accounts, all of which effectively rank senior to the New Notes. See “Risk Factors — Risks Relating to the New Notes— Our ability to meet our obligations and pay interest on the New Notes is dependent upon distributions from our subsidiaries and the New Notes will be effectively subordinated to the obligations of our subsidiaries.”
Optional Redemption
At any time and from time to time, the 2023 Notes will be redeemable at the Issuer’s option, in whole or in part, at a redemption price equal to the greater of 100% of the principal amount of the 2023 Notes being redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date and the Make-Whole Redemption Amount (as defined below).
At any time and from time to time prior to (i) August 23, 2031, in the case of the 2031 Notes, and (ii) May 23, 2051, in the case of the 2051 Notes (each, a “Par Call Date”), the applicable series of Notes will be redeemable at the Issuer’s option, in whole or in part, at a redemption price equal to the greater of 100% of the principal amount of Notes being redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date and the Make-Whole Redemption Amount.
At any time and from time to time on or after their respective Par Call Date, the 2031 Notes and the 2051 Notes will be redeemable at the Issuer’s option, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date.
“Make-Whole Redemption Amount” means the sum, as calculated by the Issuer or by such Premium Calculation Agent as the Issuer may designate, of the present values of the remaining scheduled payments of principal of and interest on the Notes to be redeemed (not including any portion of those payments of interest accrued as of any redemption date), assuming, with respect to the 2031 Notes and the 2051 Notes, that the 2031 Notes and the 2051 Notes were redeemed on their respective Par Call Date, discounted from their respective scheduled payment dates to such redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus (i) 10 basis points, with respect to the 2023 Notes, (ii) 25 basis points, with respect to the 2031 Notes and (iii) 35 basis points, with respect to the 2051 Notes, plus, in each case, accrued and unpaid interest thereon to, but excluding, such redemption date. The Trustee will have no duty to calculate or verify the calculation of the Make-Whole Redemption Amount.
For purposes of the preceding definition:
(i) “Treasury Rate” means, with respect to any applicable redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate will be calculated on the third Business Day preceding such redemption date.
(ii) “Premium Calculation Agent” means an investment banking institution of national standing appointed by the Issuer.
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(iii) “Comparable Treasury Issue” means, with respect to any redemption date, the U.S. Treasury security selected by the Premium Calculation Agent as having an actual or interpolated maturity (on a day-count basis) comparable to the term remaining from such redemption date to the applicable Par Call Date (the “Remaining Life”) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the Remaining Life.
(iv) “Comparable Treasury Price” means, with respect to any redemption date, as determined by the Issuer, (1) the average of five applicable Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Issuer obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
(v) “Reference Treasury Dealers” means each of (1) Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. government securities dealer in the United States of America (a “Primary Treasury Dealer”), the Issuer will substitute therefor another Primary Treasury Dealer, and (2) any other Primary Treasury Dealers selected by the Issuer.
(vi) “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and ask prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such redemption date.
(vii) “Business Day” means, with respect to any series of Notes, any day other than a Saturday or Sunday, legal holiday or a day on which federal or state banking institutions in the Borough of Manhattan, the City and State of New York, are authorized or obligated by law, executive order or regulation to close.
Notice of any redemption will be mailed (or, if the Notes of the applicable series are represented by one or more global notes (as defined below), transmitted in accordance with DTC standard procedures therefor) at least 10 days but not more than 60 days before the redemption date to each holder of the Notes of the applicable series to be redeemed; provided, however, that any notice of redemption may be sent more than 60 days prior to a redemption date if such notice is issued in connection with a defeasance or a satisfaction and discharge. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the portion of the Notes of an applicable series called for redemption and all rights under such Notes will terminate.
The notice of redemption need not set forth the redemption price but only the manner of calculation thereof as described above. If less than all of the Notes of a series are to be redeemed, the Trustee shall select the Notes or portions of the Notes to be redeemed pro rata; provided that, if the Notes of such series are represented by one or more global notes, interests in such global notes shall be selected for redemption in accordance with DTC’s applicable procedures therefor. Such Notes of such series may be selected in amounts of $2,000 and integral multiples of $1,000 in excess thereof (provided that the unredeemed portion of any note of such series to be redeemed in part will not be less than $2,000), and the Trustee shall thereafter promptly notify the Issuer in writing of the numbers of Notes of the series to be redeemed, in whole or in part.
Reporting Covenant
Unless the Issuer has filed the financial statements referred to in (i) and (ii) below with the SEC in accordance with the following paragraph, the Indenture requires the Issuer to post on its public website:
| (i) | within 110 days after the end of each fiscal year, the Issuer’s audited annual financial statements, together with the related report of the Issuer’s independent auditors thereon, prepared in accordance with the requirements that would be applicable to such audited annual financial statements if appearing in an annual report on Form 10-K filed by the Issuer as a non-accelerated filer (within the meaning of Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, or any successor or comparable form; and |
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| (ii) | within 55 days after the end of each of the first three fiscal quarters of each fiscal year, the Issuer’s unaudited interim financial statements, prepared in accordance with the requirements that would be applicable to such unaudited interim financial statements if appearing in a quarterly report on Form 10-Q filed by the Issuer as a non-accelerated filer (within the meaning of Rule 12b-2 under the Exchange Act) subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, or any successor or comparable form. |
For so long as the Issuer is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Indenture requires the Issuer to file with the Trustee and make available to holders of the Notes (without exhibits), without cost to any holder, all documents the Issuer files with, or furnishes to, the SEC under the Exchange Act, within 15 days after the Issuer files them with, or furnishes them to, the SEC. Any such documents that are publicly available through the EDGAR system (or any successor system) of the SEC shall be deemed to have been filed with the Trustee and made available to holders in accordance with the Issuer’s obligations hereunder.
In addition, at any time that the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, and to the extent not satisfied by the foregoing, the Issuer will agree that, for so long as any Notes are outstanding, the Issuer will furnish or otherwise make available to holders and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Delivery of such reports, statements, information and documents to the Trustee shall be for informational purposes only and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of the covenants contained in the Indenture (as to which the Trustee will be entitled to conclusively rely upon an officer’s certificate). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s compliance with the covenants or with respect to any reports or other documents filed with the SEC or EDGAR or any website under the Indenture.
Limitation on Liens on Stock of Certain Subsidiaries
So long as any Notes are outstanding, neither the Issuer nor any of its subsidiaries will, at any time directly or indirectly, create, assume, incur or guarantee any debt for money borrowed that is secured by any mortgage, pledge, lien, security interest or other encumbrance on any shares of capital stock (defined as shares or units of, rights to purchase, warrants or options for, or other equivalent interests in equity of an entity and any preferred stock of a corporation or company) of:
| · | Jackson National Life; |
| · | any successor to substantially all of the business of Jackson National Life that is a direct or indirect subsidiary of the Issuer; or |
| · | any entity (other than the Issuer) having direct or indirect control of Jackson National Life, or any such successor. |
However, this restriction will not apply if the Notes then outstanding are equally and ratably secured with such secured debt so long as such debt is so secured.
Limitations on Dispositions of Stock of Certain Subsidiaries
So long as any Notes are outstanding and subject to the provisions of the Indenture regarding mergers, consolidations and transfers of assets, neither the Issuer nor any of its subsidiaries will sell or otherwise dispose of any shares of capital stock (other than preferred stock having no voting rights of any kind) of:
| · | Jackson National Life; |
| · | any successor to substantially all of the business of Jackson National Life that is also a direct or indirect subsidiary of the Issuer; or |
| · | any entity (other than the Issuer) having direct or indirect control of Jackson National Life or any such successor; |
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except for, in each case:
| · | a sale or other disposition of any shares of such capital stock to the Issuer or to one of its direct or indirect wholly-owned subsidiaries; |
| · | a sale or other disposition of any shares of such capital stock for at least fair market value (as determined by the board of directors of the company effecting such sale or disposition, acting in good faith); or |
| · | a sale or other disposition required to comply with an order of a court or regulatory authority of competent jurisdiction, other than an order issued at the Issuer’s request or the request of any subsidiary of the Issuer. |
Consolidation, Merger, Transfer of Assets and Other Transactions
So long as any Notes are outstanding, the Issuer may not (i) merge with or into or consolidate with another entity, or (ii) convey, lease or otherwise transfer all or substantially all of its assets to any other entity other than to one of the Issuer’s direct or indirect wholly-owned subsidiaries, and no entity may merge with or into or consolidate with the Issuer, in each case unless:
| · | the Issuer is the surviving entity, or the entity formed by or surviving such merger or consolidation or to which such conveyance, lease or transfer has been made, if other than the Issuer, is organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and has expressly assumed by supplemental indenture all of the Issuer’s obligations under the Notes and the Indenture; |
| · | immediately after giving effect to such transaction, no default or event of default has occurred and is continuing; and |
| · | the Issuer delivers to the Trustee an officers’ certificate and an opinion of counsel, each to the effect that such supplemental indenture complies with the Indenture. |
This prohibition will not apply to (i) the direct or indirect conveyance or transfer of all or any portion of the capital stock, assets or liabilities of any of the Issuer’s direct or indirect wholly-owned subsidiaries to the Issuer or any of its direct or indirect wholly-owned subsidiaries or (ii) the consolidation or merger of any of the Issuer’s direct or indirect wholly-owned subsidiaries (including Jackson Holdings LLC) with and into the Issuer.
Events of Default, Notice and Waiver
The following shall constitute “events of default” under the Indenture with respect to each series of the Notes:
| · | The Issuer’s failure to pay any interest on any note of such series when due and payable, continued for 30 days; |
| · | The Issuer’s failure to pay principal of or premium, if any, on any note of such series when due, regardless of whether such payment became due because of maturity, redemption, acceleration or otherwise; |
| · | The Issuer’s failure to observe or perform any other of the covenants or agreements with respect to the Notes of such series for 90 days after written notice of such failure is given to the Issuer by the Trustee, or to the Issuer and the Trustee by the holders of at least 25% in principal amount of the then outstanding Notes of such series; |
| · | certain defaults with respect to the Issuer’s indebtedness for money borrowed which result in a principal amount in excess of $150 million becoming or being declared due and payable prior to the date on which it would have otherwise become due and payable; and |
| · | certain events of bankruptcy, insolvency or reorganization of the Issuer. |
If an event of default with respect to any Notes of any series shall occur and be continuing, the Trustee or the holders of at least 25% in aggregate principal amount of the Notes of that series may declare, by notice as provided in the Indenture, the principal amount of all the Notes of that series outstanding to be due and payable immediately; provided that, in the case of an event of default involving certain events in bankruptcy, insolvency or reorganization, acceleration is automatic; provided further that after such acceleration, but before a judgment or decree based on acceleration, the holders of a majority in aggregate principal amount of the outstanding Notes of that series may, under certain circumstances, rescind and annul such acceleration if all events of default, other than the nonpayment of accelerated principal, have been cured or waived.
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Any past default under the Indenture with respect to Notes of any series, and any event of default arising therefrom, may be waived by the holders of a majority in principal amount of all Notes of such series, outstanding under the Indenture, except in the case of (i) default in the payment of the principal of (or premium, if any) or interest on any Notes of such series, or (ii) default in respect of a covenant or provision which may not be amended or modified without the consent of the holder of each outstanding note of such series affected.
The Trustee is required, within 90 days after the occurrence of a default with respect to a series of Notes of which it has received written notice and which is continuing with respect to the Notes of such series (without regard to any grace period or notice requirements), to give to the holders of the Notes of such series notice of such default; provided, however, that, except in the case of a default in the payment of the principal of (and premium, if any) or interest on any Notes, the Trustee shall be protected in withholding such notice if it in good faith determines that the withholding of such notice is in the interests of the holders of the Notes of such series.
The Trustee may require indemnification satisfactory to it by the holders of the Notes of any series with respect to which a default has occurred before proceeding to exercise any right or power under the Indenture at the request of the holders of the Notes of such series. Subject to such right of indemnification and to certain other limitations, the holders of a majority in aggregate principal amount of the outstanding Notes of that series under the Indenture may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Notes of such series.
No holder of a note of any series may institute any action against the Issuer under the Indenture (except the right of any holder to institute suit for enforcement of any overdue principal of (and premium, if any) and interest on the Notes) unless (i) the holder has given to the Trustee written notice of an event of default and of the continuance thereof with respect to the Notes of such series specifying an event of default, as required under the Indenture, (ii) the holders of at least 25% in aggregate principal amount of the Notes of such series then outstanding shall have requested the Trustee to institute such action, (iii) such holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request, (iv) the Trustee shall not have instituted such action within 60 days of such request and (v) during such 60 day period, the holders of a majority of the Notes of such series do not give the Trustee a direction inconsistent with the request.
The Issuer will be required to furnish annually to the Trustee statements as to the Issuer’s compliance with all conditions and covenants under the Indenture. If the Issuer is in default, such statement shall specify all such defaults and the nature and status thereof of which the Issuer may have knowledge. The Issuer will be required, within 10 Business Days after becoming aware of any default, to deliver to the Trustee a written notice specifying such default.
Defeasance and Covenant Defeasance
The Issuer may elect either (i) to defease and be discharged from any and all obligations with respect to the Notes of or within any series (except as otherwise provided in the Indenture) (“defeasance”) or (ii) to be released from its obligations with respect to certain covenants applicable to the Notes of or within any series (“covenant defeasance”), upon the deposit with the Trustee or paying agent, in trust for such purpose, of money and/or government obligations which, in the opinion of a nationally recognized certified public accounting firm, through the payment of principal and interest in accordance with their terms, will provide money in an amount sufficient, without reinvestment, to pay the principal of (and premium, if any) or interest on the Notes to maturity or redemption, as the case may be. As a condition to defeasance or covenant defeasance, the Issuer must deliver to the Trustee an opinion of counsel to the effect that the holders of such Notes will not recognize gain or loss for U.S. federal income tax purposes as a result of such defeasance or covenant defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had not occurred. Such opinion of counsel, in the case of defeasance under clause (i) above, must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable U.S. federal income tax law occurring after the date of the Indenture. In addition, in the case of either defeasance or covenant defeasance, the Issuer shall have delivered to the Trustee (i) an officers’ certificate to the effect that the relevant securities exchange(s) have informed it that neither such Notes nor any other Notes of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit, and (ii) an officers’ certificate and an opinion of counsel, each to the effect that all conditions precedent with respect to such defeasance or covenant defeasance have been complied with. The Issuer may exercise its defeasance option with respect to the Notes notwithstanding its prior exercise of its covenant defeasance option.
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Modification and Waiver
Under the Indenture, the Issuer and the Trustee may supplement the Indenture for certain purposes, including to make any change that would not materially adversely affect the rights of the holders of the Notes of a series, without the consent of those holders. The Issuer and the Trustee may also modify the Indenture or any supplemental indenture in a manner that affects the interests or rights of the holders of Notes with the consent of the holders of at least a majority in aggregate principal amount of the outstanding Notes of each affected series, voting as a single class. However, the Indenture requires the consent of each holder of Notes of a series that would be affected by any modification that would:
| · | extend the fixed maturity of any Notes of such series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof; |
| · | change the obligation of the Issuer to maintain an office or agency and for the purposes specified in the Indenture; |
| · | reduce the amount of principal payable upon acceleration of the maturity thereof; |
| · | change the currency in which any note or any premium or interest is payable; |
| · | impair the right to enforce any payment on or with respect to any note; |
| · | reduce the percentage in principal amount of outstanding Notes of such series, the consent of whose holders is required for modification or amendment of the Indenture or for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults; |
| · | reduce the requirements contained in the Indenture for the consent of holders of the Notes of such series; or |
| · | modify any of the above provisions. |
The Indenture permits the holders of at least a majority in aggregate principal amount of the outstanding Notes of any series to waive the Issuer’s compliance with certain covenants contained in the Indenture.
Payment and Paying Agents
Payment of interest on a note on any interest payment date will be made to the person in whose name a note is registered at the close of business on the record date for the interest payment.
Principal, interest and premium, if any, on the Notes of a particular series will be payable in U.S. dollars at the office of the paying agent that the Issuer designates for such purpose from time to time. Notwithstanding the foregoing, at the Issuer’s option, payment of any interest may be made by check mailed to the address of the person entitled thereto as such address appears in the security register or by wire transfer in accordance with the Indenture.
Initially, the Trustee will act as paying agent for payments with respect to the Notes of each series.
Subject to applicable law, all moneys paid by the Issuer to a paying agent for the payment of the principal, interest or premium, if any, on any note of each series which remain unclaimed at the end of two years after such principal, interest or premium, if any, has become due and payable will be repaid to the Issuer upon request, and the holder of such note thereafter may look only to the Issuer for payment thereof.
Governing Law
The Indenture and the Notes will be governed by and construed in accordance with the laws of the State of New York.
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Relationship with the Trustee
The Bank of New York Mellon Trust Company, N.A. will serve as the trustee, security registrar and paying agent under the Indenture. We maintain ordinary banking and trust relationships with a number of banks and trust companies, including the Trustee and its affiliates.
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Description of Registration Rights Agreement
The following summary describes the material terms and provisions of the Registration Rights Agreement. This description is qualified in its entirety by reference to the terms and conditions of the Registration Rights Agreement, a copy of which has been filed or incorporated by reference as an exhibit to the registration statement of which this prospectus is a part and which may be obtained as described under “Where You Can Find More Information” and “Incorporation by Reference.”
In connection with the issuance of the Old Notes, the Issuer and the initial purchasers entered into the Registration Rights Agreement with respect to each series of Notes. In the agreement, the Issuer agreed, for the benefit of the holders of the Old Notes, to use its reasonable best efforts to (1) file with the SEC a registration statement on an appropriate registration form with respect to a registered offer to exchange the Old Notes for New Notes having substantially identical terms as the Old Notes and evidencing the same indebtedness as the Old Notes (except that the New Notes will not contain terms with respect to transfer restrictions or any additional interest payable upon a registration default, as discussed below) and (2) cause the registration statement to be declared effective under the Securities Act.
The Issuer will accept for exchange Old Notes of any series which are validly tendered and not validly withdrawn prior to 5:00 p.m., New York City time, on the expiration date unless the Issuer terminates the exchange offer. In exchange for each $1,000 aggregate principal amount of Old Notes validly tendered and not validly withdrawn by the holder thereof prior to 5:00 p.m., New York City time, on the expiration date of the exchange offer and accepted for exchange by the Issuer, all on the terms and subject to the conditions set forth in the letter of transmittal and in this prospectus, the tendering holder will receive $1,000 aggregate principal amount of New Notes of the corresponding series. Interest on each New Note will accrue (1) from the last interest payment date on which interest was paid on the Old Note surrendered in exchange therefor or (2) if no interest has been paid on the Old Note, from the issue date of the Old Note surrendered for exchange.
Each holder of Old Notes that participates in the registered exchange offer will be required to represent:
| · | that any New Notes to be received by it will be acquired in the ordinary course of its business; |
| · | that it has no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the New Notes in violation of the Securities Act; |
| · | that it is not an “affiliate” of the Issuer within the meaning of Rule 405 under the Securities Act; and |
| · | if it is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, that the Old Notes to be exchanged were acquired as a result of market-making or other trading activities and that it will deliver a prospectus (or, to the extent permitted by law, make a prospectus available) in connection with any resale of the New Notes. In this case, the Issuer agrees to maintain the effectiveness of the exchange offer registration statement until 90 days after the last date for acceptance for exchange of the Old Notes for New Notes of the corresponding series. |
The Issuer will use its reasonable best efforts to complete the registered exchange offer not later than 60 days after the exchange offer registration statement becomes effective. Under existing interpretations of the SEC contained in several no-action letters to third parties, the New Notes will generally be freely transferable after the registered exchange offer without further registration under the Securities Act, except that any broker-dealer that participates in the exchange must deliver a prospectus meeting the requirements of the Securities Act when it resells the New Notes.
The Issuer agrees to make available, during the period required by the Securities Act, a prospectus meeting the requirements of the Securities Act for use by participating broker-dealers and other persons, if any, with similar prospectus delivery requirements for use in connection with any resale of New Notes. Old Notes of any series not tendered in the registered exchange offer will bear interest at the rate set forth on the cover page of this prospectus and be subject to all the terms and conditions specified in the Indenture, including transfer restrictions, but will not retain any rights under the Registration Rights Agreement (including with respect to additional interest described below) after the consummation of the registered exchange offer.
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In the event that the Issuer determines that a registered exchange offer may not be completed as soon as practicable after the last date for acceptance of Old Notes for exchange because it would violate any applicable law or applicable interpretations of the staff of the SEC or, if for any reason the registered exchange offer is not completed by December 31, 2022, or, in certain circumstances, any initial purchaser so requests in connection with any offer or sale of Old Notes, the Issuer will promptly file and use its reasonable best efforts to have declared effective a shelf registration statement relating to resales of the Old Notes and to keep that shelf registration statement effective until the date that the Old Notes cease to be “registrable securities” (as defined in the Registration Rights Agreement), including when all Old Notes covered by the shelf registration statement have been sold pursuant to the shelf registration statement. The Issuer will, in the event of such a shelf registration, provide to each participating holder of Old Notes copies of a prospectus, notify each participating holder of Old Notes when the shelf registration statement has become effective and take certain other actions to permit resales of the Old Notes. A holder of Old Notes that sells Old Notes under the shelf registration statement generally will be required to make certain representations to the Issuer (as described above), to be named as a selling security holder in the related prospectus and to deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with those sales and will be bound by the provisions of the Registration Rights Agreement that are applicable to such a holder of Old Notes (including certain indemnification obligations). Holders of Notes will also be required to suspend their use of the prospectus included in the shelf registration statement under specified circumstances upon receipt of notice from the Issuer. Under applicable interpretations of the staff of the SEC, the Issuer’s affiliates will not be permitted to exchange their Old Notes for registered Notes in the exchange offer. The Issuer is entitled to suspend its obligation to file any amendment to a shelf registration statement, furnish any supplement or amendment to a prospectus included in a shelf registration statement or any free writing prospectus, make any other filing with the SEC that would be incorporated by reference into a shelf registration statement, cause a shelf registration statement to remain effective or take any similar action if there is a possible acquisition, disposition or business combination or other transaction, business development or event involving the Issuer or its subsidiaries that may require disclosure in the shelf registration statement or prospectus and the Issuer determines that such disclosure is not in the best interest of the Issuer and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the shelf registration statement or prospectus would be impracticable.
If a “registration default” (as defined in the Registration Rights Agreement and described below) occurs with respect to a series of registrable securities, then additional interest shall accrue on the principal amount of the Old Notes of a particular series that are “registrable securities” at a rate of 0.25% per annum (which rate will be increased by an additional 0.25% per annum for each subsequent 90-day period that such additional interest continues to accrue, provided that the rate at which such additional interest accrued on such series may in no event exceed 0.50% per annum). The additional interest will cease to accrue when the registration default is cured. A registration default occurs if (1) the Issuer has not exchanged New Notes for all Old Notes validly tendered in accordance with the terms of the registered exchange offer or, if a shelf registration statement is required and is not declared effective, on or prior to December 31, 2022 or (2) if applicable, a shelf registration statement covering resales of the Old Notes has been declared effective and such shelf registration statement ceases to be effective or the prospectus contained therein ceases to be usable for resales of Old Notes (a) on more than two occasions during the required effectiveness period or (b) at any time in any 12-month period during the required effectiveness period, and such failure to remain effective or be usable exists for more than 30 days (whether or not consecutive) in any 12-month period. A registration default is cured with respect to a series of Old Notes, and additional interest ceases to accrue on any registrable securities of a series of Old Notes, when the registered exchange offer is completed or the shelf registration statement is declared effective or the prospectus again becomes usable, as applicable, or such Old Notes cease to be registrable securities.
Any amounts of additional interest due will be payable in cash on the same original interest payment dates as interest on the Old Notes is payable. The New Notes will be accepted for clearance through DTC.
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The New Notes will initially be issued in book-entry form evidenced by one or more global New Notes (“Global New Notes”) registered in the name of DTC or its nominee. The Old Notes were initially issued and, as of the date of this prospectus, remain in book-entry form evidenced by one or more global Old Notes (“Global Old Notes”) registered in the name of DTC or its nominee. The Global Old Notes were, and the Global New Notes will be, deposited upon issuance with the Trustee, as custodian for DTC, in each case for credit to the accounts of direct participants in DTC as described below. Except as described below, Notes in book-entry form evidenced by one or more global Notes (“Global Notes,” which term includes, unless otherwise expressly stated or the context otherwise requires, the Global New Notes and the Global Old Notes”) may be transferred, in whole and not in part, only to DTC, or another nominee of DTC or to a successor of DTC or its nominee. Except in the limited circumstances described below, owners of beneficial interests in the Global Notes will not be entitled to receive physical delivery of Certificated Notes (as defined below). See “—Exchange of Book-Entry Notes for Certificated Notes.”
Transfers of beneficial interests in the Global Notes are subject to the applicable rules and procedures of DTC and its direct or indirect participants (including, if applicable, those of Euroclear and Clearstream, which may change from time to time.
The Trustee is acting as the initial paying agent and registrar for the Notes. The Notes may be presented for registration of transfer and exchange at the offices of the registrar.
Certain Procedures
The following description of some of the operations and procedures of DTC, Euroclear and Clearstream are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them from time to time. We take no responsibility for these operations and procedures and urge investors to contact the systems or their participants directly to discuss these matters.
DTC has advised us that DTC is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the “Participants”) and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the “Indirect Participants”). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through Participants or Indirect Participants.
DTC has also advised us that, pursuant to procedures established by it, ownership of interests in the Global Notes will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interest in the Global Notes).
Owners of the beneficial interests in the Global Notes may hold their interests therein directly through DTC, if they are Participants in such system, or indirectly through organizations (including Euroclear and Clearstream) which are Participants or Indirect Participants in such system. Each of Euroclear and Clearstream holds and will hold interests in the Global Notes on behalf of its participants through customers’ securities accounts in its name on the books of its depositary. All interests in a Global Note, including those held through Euroclear or Clearstream, will be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream will also be subject to the procedures and requirements of such system. The laws of some states require, and the laws of other jurisdictions may require, that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a Global Note to such persons will be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of a person having beneficial interests in a Global Note to pledge such interests to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests.
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Except as described below, owners of interests in the Global Notes will not have Notes registered in their names, will not receive physical delivery of Certificated Notes and will not be considered the registered owners or “holders” thereof under the Indenture for any purpose.
Payments in respect of the principal of, premium, if any, and interest on a Global Note registered in the name of DTC or its nominee will be payable to DTC or its nominee in its capacity as the registered holder under the Indenture. Under the terms of the Indenture, we and the Trustee will treat the persons in whose names the Notes, including the Global Notes, are registered as the owners thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. Consequently, neither we, the Trustee nor any of our or the Trustee’s agents has or will have any responsibility or liability for (1) any aspect of DTC’s records or any Participant’s or Indirect Participant’s records relating to or payments made on account of beneficial ownership interest in any Global Notes, or for maintaining, supervising or reviewing any of DTC’s records or any Participant’s or Indirect Participant’s records relating to the beneficial ownership interests in any Global Notes or (2) any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants. DTC has advised us that its current practice, upon receipt of any payment in respect of securities such as the Notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date, in amounts proportionate to their respective holdings in the principal amount of the relevant security as shown on the records of DTC. Payments by Participants and Indirect Participants to the beneficial owners of Global Notes will be governed by standing instructions and customary practices and will be the responsibility of Participants or Indirect Participants and will not be the responsibility of DTC, the Trustee or us. Neither we nor the Trustee will be liable for any delay by DTC or any of its Participants or Indirect Participants in identifying or remitting payments to the beneficial owners of the Notes, and we and the Trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.
Except for trades involving only Euroclear and Clearstream participants, interests in the Global Notes are expected to be eligible to trade in DTC’s Same-Day Funds Settlement System and secondary market trading activity in such interests will, therefore, settle in immediately available funds, subject in all cases to the rules and procedures of DTC and its Participants. See “—Same-Day Settlement and Payment.” Subject to the transfer restrictions applicable to the Old Notes and that may be applicable to any Additional Notes we may issue in the future, transfers between Participants in DTC will be effected in accordance with DTC’s procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in the ordinary way in accordance with their respective rules and operating procedures.
Subject to the transfer restrictions applicable to the Old Notes and that may be applicable to any Additional Notes we may issue in the future, cross-market transfers between Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream by their respective depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the respective depositaries for Euroclear or Clearstream.
DTC has advised us that it will take any action permitted to be taken by a holder of Notes only at the direction of one or more Participants to whose account DTC has credited the interests in the Global Notes and only in respect of such portion of the aggregate principal amount of the Global Notes as to which such Participant or Participants has or have given such direction. However, if an Event of Default (as defined in “Description of the New Notes”) with respect to the Notes has occurred and is continuing, DTC reserves the right to exchange the Global Notes for Certificated Notes (which, in the case of Old Notes and any Additional Notes we may issue in the future that are subject to transfer restrictions, will bear the applicable restrictive legend set forth in the Indenture unless we determine otherwise), and to distribute such Certificated Notes to its Participants.
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DTC, Euroclear and Clearstream are under no obligation to perform or continue to perform the foregoing procedures to facilitate transfers of interests in the Global Notes among their respective participants, and such procedures may be discontinued at any time. Neither we nor the Trustee nor any of our or their respective agents will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
Exchange of Book-Entry Notes for Certificated Notes
A Global Note will be exchangeable for Notes in registered certificated form without coupons (“Certificated Notes”) if (1) DTC notifies us that it is unwilling or unable to continue as depositary for the Global Notes or ceases to be a clearing agency registered under the Exchange Act (if such registration is required by applicable law) and we do not appoint a successor depositary for the Notes within 90 days after we receive such notification or we become aware that DTC has ceased to be so registered, as the case may be, (2) we, at our option and subject to DTC procedures, notify the Trustee in writing that we elect to cause the issuance of Certificated Notes or (3) there shall have occurred and be continuing an Event of Default. If that occurs, then only New Notes in registered certificated form without coupons will be issued in exchange for beneficial interests in Global New Notes and only Old Notes in registered certificated form without coupons will be issued in exchange for beneficial interests in Global Old Notes. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any authorized denominations, requested by or on behalf of DTC (in accordance with its customary procedures) and, in the case of Old Notes and any Additional Notes we may issue in the future that are subject to transfer restrictions, will bear the applicable restrictive legend set forth in the Indenture unless we determine otherwise.
Same-Day Settlement and Payment
Payments in respect of the Notes represented by Global Notes (including principal and interest) will be made by wire transfer of immediately available funds to DTC or its nominee, as the registered holder of the Global Notes. In the event that Certificated Notes are issued under the limited circumstances described above, we will pay the principal and premium, if any, on, and may pay interest on, the Certificated Notes at the office or agency maintained by us for such purpose in the United States of America, which initially shall be an office of the Trustee, upon surrender of such Certificated Note at such office or agency. Interest on any Certificated Notes may also be paid, at our option, by check mailed to the addresses of the registered holders entitled thereto or by wire transfer to accounts in the United States of America specified by such holders. The Notes represented by Global Notes are expected to trade in DTC’s Same-Day Funds Settlement System, and any permitted secondary market trading activity in the Notes will, therefore, be required by DTC to be settled in immediately available funds.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant in DTC will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.
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U.S. Federal Income Tax Considerations
The following is a discussion of certain U.S. federal income tax considerations relating to (i) the exchange of Old Notes for New Notes pursuant to this exchange offer and (ii) the ownership and disposition of the New Notes by U.S. holders and non-U.S. holders (each as defined below) that purchase the New Notes pursuant to this prospectus and hold such New Notes as capital assets for U.S. federal income tax purposes (generally, property held for investment purposes). No ruling from the U.S. Internal Revenue Service (“IRS”) has been or is expected to be sought on any of the issues discussed herein, and there can be no assurance that the IRS or a court will agree with the conclusions reached below. This discussion is based on the U.S. Internal Revenue Code of 1986, as amended (the “Code”), U.S. Treasury regulations promulgated or proposed thereunder and administrative and judicial interpretations thereof, all as in effect on the date hereof, and all of which are subject to change, possibly with retroactive effect, or to different interpretation. This discussion does not address all of the U.S. federal income tax considerations that may be relevant to specific holders (as defined below) in light of their particular circumstances (including holders that are directly or indirectly related to the Issuer and accrual method holders that have an “applicable financial statement”) or to holders subject to special treatment under U.S. federal income tax law (such as banks or other financial institutions, insurance companies, dealers in securities or currencies or other holders that generally mark their securities to market for U.S. federal income tax purposes, tax-exempt entities (including private foundations), retirement plans, regulated investment companies, real estate investment trusts, certain former citizens or residents of the United States, holders that hold a Note as part of a straddle, hedge, conversion or other integrated transaction or U.S. holders that have a “functional currency” other than the U.S. dollar). This discussion does not address any U.S. state or local or non-U.S. tax considerations or any U.S. federal estate, gift or alternative minimum tax considerations.
As used in this discussion, the term “U.S. holder” means a beneficial owner of a Note that, for U.S. federal income tax purposes, is (i) a citizen or an individual who is a resident of the United States, (ii) a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia, (iii) an estate the income of which is subject to U.S. federal income tax regardless of its source or (iv) a trust (x) with respect to which a court within the United States is able to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all of its substantial decisions or (y) that has in effect a valid election under applicable U.S. Treasury regulations to be treated as a U.S. person.
As used in this discussion, the term “non-U.S. holder” means a beneficial owner of a Note that is neither a U.S. holder nor a partnership or other entity or arrangement treated as a partnership for U.S. federal income tax purposes, and the term “holder” means a U.S. holder or a non-U.S. holder.
If an entity treated as a partnership for U.S. federal income tax purposes invests in a Note, the U.S. federal income tax considerations relating to such investment will depend in part upon the status and activities of such entity and the particular partner. Any such entity should consult its own tax advisor regarding the U.S. federal income tax considerations applicable to it and its partners relating to the ownership and disposition of a Note.
THIS DISCUSSION OF U.S. FEDERAL INCOME TAX CONSIDERATIONS IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TAX ADVICE. EACH PERSON CONSIDERING AN INVESTMENT IN THE NEW NOTES SHOULD CONSULT ITS OWN TAX ADVISOR REGARDING THE U.S. FEDERAL, STATE AND LOCAL AND NON-U.S. INCOME, ESTATE AND OTHER TAX CONSIDERATIONS RELATING TO THE OWNERSHIP AND DISPOSITION OF THE NEW NOTES IN LIGHT OF ITS PARTICULAR CIRCUMSTANCES.
Treatment of Exchange under the Exchange Offer
The exchange of Old Notes for New Notes in the exchange offer will not be a taxable event for U.S. federal income tax purposes. A holder will not realize any taxable gain or loss as a result of exchanging Old Notes for New Notes, and, upon the exchange, the holder will have the same tax basis and holding period in the New Notes as the holder had in the Old Notes immediately before the exchange.
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U.S. Holders
Interest on the New Notes
In general, interest payable on a New Note will be taxable to a U.S. holder as ordinary interest income when it is received or accrued, in accordance with such U.S. holder’s regular method of accounting for U.S. federal income tax purposes.
Bond Premium
If a U.S. holder purchased an Old Note in a secondary market transaction for an amount in excess of, in general, the Old Note’s principal amount, the U.S. holder will be considered to have purchased the Old Note with “amortizable bond premium” equal in amount to such excess. Any amortizable bond premium applicable to an Old Note will carry over to the New Note received in exchange therefor. A U.S. holder may elect to amortize such premium using a constant yield method over the remaining term of the New Note and may offset interest income otherwise required to be included in respect of the Notes during any taxable year by the amortized amount of such excess for the taxable year. A U.S. holder who elects to amortize bond premium must reduce its tax basis in the New Note by the amount of the premium so amortized. This election, once made, may only be revoked with the consent of the IRS. If a U.S. holder does not elect to amortize any bond premium and holds the New Note to maturity, then, in general, the U.S. holder will recognize a capital loss equal to the amount of such premium when the New Note matures. The deduction of capital losses may be subject to limitations.
Market Discount
If a U.S. holder acquired an Old Note in a secondary market transaction for an amount that is less than, in general, the Old Note’s principal amount, the amount of such difference is treated as “market discount” for U.S. federal income tax purposes, unless such difference is considered to be de minimis as described in section 1278(a)(2)(C) of the Code. Market discount on an Old Note not previously treated as ordinary income by a U.S. holder will carry over to the New Note received in exchange therefor. A U.S. holder will be required to treat any gain on the sale, exchange, retirement or other taxable disposition of a New Note as ordinary income to the extent of the accrued market discount on the New Note unless such market discount has been previously included in income by the U.S. holder pursuant to an election to include the market discount in income as it accrues (under either a ratable or constant yield method).
Sale, Exchange, Retirement or Other Taxable Disposition of the New Notes
In general, the sale, exchange, retirement or other taxable disposition of a New Note will result in gain or loss to a U.S. holder in an amount equal to the difference, if any, between the amount realized and the U.S. holder’s adjusted tax basis in such New Note immediately before the sale, exchange, retirement or other taxable disposition. Any amount attributable to accrued but unpaid stated interest will be treated as a payment of interest and taxed in the manner described above under “—Interest on the New Notes.” Any amount attributable to accrued market discount that has not previously been included in income will be treated in the manner described above under “—Market Discount.” In general, the U.S. holder’s adjusted tax basis in a New Note will be equal to the purchase price of the Old Note exchanged therefor paid by the U.S. holder (excluding any amount attributable to accrued but unpaid stated interest) increased by any market discount previously included in the U.S. holder’s income with respect to the New Note or the Old Note exchanged therefor and reduced by any bond premium used to offset interest income as described above under “—Bond Premium.” Subject to the discussion above regarding market discount, gain or loss realized on the sale, exchange, retirement or other taxable disposition of a New Note generally will be capital gain or loss and will be long-term capital gain or loss if at the time of the sale, exchange, retirement or other taxable disposition the New Note has been held by the U.S. holder for more than one year. Certain non-corporate taxpayers generally are subject to reduced rates of U.S. federal income taxation on long-term capital gains. The deduction of capital losses may be subject to limitations.
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Medicare Tax
In addition to regular U.S. federal income tax, certain U.S. holders that are individuals, estates or trusts are subject to a 3.8% tax on all or a portion of their “net investment income,” which may include all or a portion of their interest income on a New Note and net gain from the sale, exchange, retirement or other taxable disposition of a New Note.
Information Reporting and Backup Withholding
Information reporting generally will apply to payments to a U.S. holder of interest on, or proceeds from the sale, exchange, retirement or other disposition of, a New Note, unless such U.S. holder is an entity that is exempt from information reporting and, when required, demonstrates this fact. Any such payment to a U.S. holder that is subject to information reporting generally will also be subject to backup withholding, unless such U.S. holder provides the appropriate documentation (generally, IRS Form W-9) to the applicable withholding agent certifying that, among other things, its taxpayer identification number is correct, or otherwise establishes an exemption.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules generally will be allowed as a refund or a credit against a U.S. holder’s U.S. federal income tax liability if the required information is furnished by such U.S. holder on a timely basis to the IRS.
Non-U.S. Holders
General
Subject to the discussion below under “—Information Reporting and Backup Withholding” and “FATCA Withholding”:
| (a) | payments of principal, interest and premium with respect to a New Note owned by a non-U.S. holder generally will not be subject to U.S. federal income or withholding tax; provided that, in the case of amounts treated as payments of interest: |
| (i) | such amounts are not effectively connected with the conduct of a trade or business in the United States by such non-U.S. holder (and, if a tax treaty applies, such amounts are not attributable to a permanent establishment or fixed base maintained within the United States by the non-U.S. holder); |
| (ii) | such non-U.S. holder does not own, actually or constructively, 10% or more of the total combined voting power of all classes of the Issuer’s stock entitled to vote; |
| (iii) | such non-U.S. holder is not a controlled foreign corporation described in section 957(a) of the Code that is related to the Issuer through stock ownership; |
| (iv) | such non-U.S. holder is not a bank whose receipt of such amounts is described in section 881(c)(3)(A) of the Code; and |
(v) the certification requirements described below are satisfied; and
(b) except with respect to any amount that is attributable to accrued but unpaid interest, which will generally be taxed as described above, a non-U.S. holder generally will not be subject to U.S. federal income or withholding tax on any gain recognized on the sale, exchange, retirement or other taxable disposition of a New Note, unless (i) such gain is effectively connected with the conduct of a trade or business in the United States by such non-U.S. holder (and, if a tax treaty applies, is attributable to a permanent establishment or fixed base of the non-U.S. holder within the United States), in which event such gain generally will be subject to U.S. federal income (but not withholding) tax in the manner described below, or (ii) such non-U.S. holder is an individual who is present in the United States for 183 days or more during the taxable year of such sale, exchange, retirement or other taxable disposition and certain other conditions are met, in which event such gain (net of certain U.S. source losses) generally will be subject to U.S. federal income tax at a rate of 30% (except as provided by an applicable tax treaty).
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The certification requirements referred to in clause (a)(v) above generally will be satisfied if the non-U.S. holder provides the applicable withholding agent with a statement (generally on IRS Form W-8BEN or W-8BEN-E or other appropriate substitute form), signed under penalties of perjury, stating, among other things, that such non-U.S. holder is not a U.S. person and that no withholding is required pursuant to the Foreign Account Tax Compliance Act (“FATCA”). U.S. Treasury regulations provide additional rules for a New Note held through one or more intermediaries or pass-through entities.
If the requirements set forth in clause (a) above are not satisfied with respect to a non-U.S. holder, amounts treated as payments of interest generally will be subject to U.S. federal withholding tax at a rate of 30%, unless another exemption is applicable. For example, an applicable tax treaty may reduce or eliminate this withholding tax if such non-U.S. holder provides the appropriate documentation (generally, IRS Form W-8BEN or W-8BEN-E) to the applicable withholding agent.
If a non-U.S. holder is engaged in the conduct of a trade or business in the United States, and if amounts treated as interest on a New Note or gain recognized on the sale, exchange, retirement or other taxable disposition of a New Note are effectively connected with the conduct of such trade or business (and, if a tax treaty applies, such interest is attributable to a permanent establishment or fixed base maintained within the United States by the non-U.S. holder), such non-U.S. holder generally will not be subject to U.S. federal withholding tax on such interest or gain; provided that, in the case of amounts treated as interest, such non-U.S. holder provides the appropriate documentation (generally, IRS Form W-8ECI) to the applicable withholding agent. Instead, such non-U.S. holder generally will be subject to U.S. federal income tax (but not the Medicare tax described above) on such interest or gain in substantially the same manner as a U.S. holder (except as provided by an applicable tax treaty). In addition, a non-U.S. holder that is treated as a corporation for U.S. federal income tax purposes may be subject to a branch profits tax at a rate of 30% (or a lower rate if provided by an applicable tax treaty) on its effectively connected income for the taxable year, subject to certain adjustments.
Information Reporting and Backup Withholding
Amounts treated as payments of interest on a New Note to a non-U.S. holder and the amount of any U.S. federal tax withheld from such payments generally will be reported annually to the IRS and to such non-U.S. holder by the applicable withholding agent.
The information reporting and backup withholding rules that apply to payments of interest to certain U.S. holders generally will not apply to amounts treated as payments of interest to a non-U.S. holder if such non-U.S. holder certifies under penalties of perjury that it is not a U.S. person (generally by providing an IRS Form W-8BEN or W-8BEN-E to the applicable withholding agent) or otherwise establishes an exemption.
Proceeds from the sale, exchange, retirement or other taxable disposition of a New Note by a non-U.S. holder effected outside the United States through a non-U.S. office of a non-U.S. broker generally will not be subject to the information reporting and backup withholding rules that apply to payments to certain U.S. holders; provided that the proceeds are paid to the non-U.S. holder outside the United States. However, proceeds from the sale, exchange, retirement or other taxable disposition of a New Note by a non-U.S. holder effected through a non-U.S. office of a non-U.S. broker with certain specified U.S. connections or of a U.S. broker generally will be subject to these information reporting rules (but generally not to these backup withholding rules), even if the proceeds are paid to such non-U.S. holder outside the United States, unless such non-U.S. holder certifies under penalties of perjury that it is not a U.S. person (generally by providing an IRS Form W-8BEN or W-8BEN-E to the applicable withholding agent) or otherwise establishes an exemption. Proceeds from the sale, exchange, retirement or other taxable disposition of a New Note by a non-U.S. holder effected through a U.S. office of a broker generally will be subject to these information reporting and backup withholding rules, unless such non-U.S. holder certifies under penalties of perjury that it is not a U.S. person (generally by providing an IRS Form W-8BEN or W-8BEN-E to the applicable withholding agent) or otherwise establishes an exemption.
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Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules generally will be allowed as a refund or a credit against a non-U.S. holder’s U.S. federal income tax liability if the required information is furnished by such non-U.S. holder on a timely basis to the IRS.
FATCA Withholding
Under the FATCA provisions of the Code and related U.S. Treasury guidance, a withholding tax of 30% will be imposed in certain circumstances on payments of interest on the New Notes. In the case of payments made to a “foreign financial institution” (such as a bank, a broker, an investment fund or, in certain cases, a holding company), as a beneficial owner or as an intermediary, this tax generally will be imposed, subject to certain exceptions, unless such institution (i) has agreed to (and does) comply with the requirements of an agreement with the United States (an “FFI Agreement”) or (ii) is required by (and does comply with) applicable foreign law enacted in connection with an intergovernmental agreement between the United States and a foreign jurisdiction (an “IGA”) to, among other things, collect and provide to the U.S. tax authorities or other relevant tax authorities, on an annual basis, certain information regarding U.S. account holders of such institution (including certain non-U.S. entities that are wholly or partially owned by U.S. persons) and, in either case, such institution provides the withholding agent with a certification as to its FATCA status. In the case of payments made to a foreign entity that is not a financial institution (as a beneficial owner), the tax generally will be imposed, subject to certain exceptions, unless such entity provides the withholding agent with a certification as to its FATCA status and, in certain cases, identifies any “substantial” U.S. owner (generally, any specified U.S. person that directly or indirectly owns more than a specified percentage of such entity). If a New Note is held through a foreign financial institution that has agreed to comply with the requirements of an FFI Agreement or is subject to similar requirements under applicable foreign law enacted in connection with an IGA, such foreign financial institution (or, in certain cases, a person paying amounts to such foreign financial institution) generally will be required, subject to certain exceptions, to withhold tax on payments made to (i) a person (including an individual) that fails to provide any required information or documentation or (ii) a foreign financial institution that has not agreed to comply with the requirements of an FFI Agreement and is not subject to similar requirements under applicable foreign law enacted in connection with an IGA. Each holder should consult its own tax advisor regarding the application of FATCA to the ownership and disposition of the New Notes.
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The following is a summary of certain considerations associated with the exchange of Old Notes for New Notes by employee benefit plans that are subject to Title I of ERISA, plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the Code or provisions under any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”), and entities whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”).
General Fiduciary Matters
ERISA and the Code impose certain duties on persons who are fiduciaries of a Plan subject to Title I of ERISA or Section 4975 of the Code (a “Covered Plan”) and prohibit certain transactions involving the assets of a Covered Plan and its fiduciaries or other interested parties. Under ERISA and the Code, any person who exercises any discretionary authority or control over the administration of such a Covered Plan or the management or disposition of the assets of such a Covered Plan, or who renders investment advice for a fee or other compensation to such a Covered Plan, is generally considered to be a fiduciary of the Covered Plan.
In considering an investment in the Notes of a portion of the assets of any Plan, a fiduciary should determine whether the investment is in accordance with the documents and instruments governing the Plan and the applicable provisions of ERISA, the Code or any Similar Law relating to a fiduciary’s duties to the Plan including, without limitation, the prudence, diversification, delegation of control, conflicts of interest and prohibited transaction provisions of ERISA, the Code and any other applicable Similar Laws.
Prohibited Transaction Issues
Section 406 of ERISA and Section 4975 of the Code prohibit Covered Plans from engaging in specified transactions involving plan assets with persons or entities who are “parties in interest,” within the meaning of ERISA, or “disqualified persons,” within the meaning of Section 4975 of the Code, unless an exemption is available. A party in interest or disqualified person who engages in a non-exempt prohibited transaction may be subject to excise taxes and other penalties and liabilities under ERISA and the Code. In addition, the fiduciary of a Covered Plan that engages in such a non-exempt prohibited transaction may be subject to penalties and liabilities under ERISA and the Code. The acquisition and/or holding of Notes by a Covered Plan with respect to which the Issuer or the underwriters are considered a party in interest or a disqualified person may constitute or result in a direct or indirect prohibited transaction under Section 406 of ERISA and/or Section 4975 of the Code, unless the investment is acquired and is held in accordance with an applicable statutory, class or individual prohibited transaction exemption.
In this regard, the U.S. Department of Labor has issued prohibited transaction class exemptions, or “PTCEs,” that may apply to the acquisition and holding of the Notes. These class exemptions include, without limitation, PTCE 84-14 respecting transactions determined by independent qualified professional asset managers, PTCE 90-1 respecting insurance company pooled separate accounts, PTCE 91-38 respecting bank collective investment funds, PTCE 95-60 respecting life insurance company general accounts, and PTCE 96-23 respecting transactions determined by in-house asset managers. In addition, Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code provide relief from the prohibited transaction provisions of ERISA and Section 4975 of the Code for certain transactions, provided that neither the Issuer of the securities nor any of its affiliates (directly or indirectly) have or exercise any discretionary authority or control or render any investment advice with respect to the assets of any Covered Plan involved in the transaction and provided further that the Covered Plan pays no more and receives no less than adequate consideration in connection with the transaction. There can be no assurance that any exemption will apply to all possible prohibited transactions that might occur in connection with an investment in the Notes, or that all of the conditions of any such exemptions will be satisfied.
Governmental plans, non-U.S. plans and certain church plans, while not subject to the prohibited transaction provisions of ERISA and Section 4975 of the Code, may nevertheless be subject to Similar Laws which may affect their investment in the Notes. Any fiduciary of such a governmental, non U.S. or church plan considering an investment in the Notes should consult with its counsel before purchasing the Notes to consider the applicable fiduciary standards and to determine the need for, and, if necessary, the availability of, any exemptive relief under any applicable Similar Laws.
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Because of the foregoing, the Notes should not be purchased or held by any person investing “plan assets” of any Plan, unless such purchase and holding will not constitute a non-exempt prohibited transaction under ERISA and the Code or a similar violation of any applicable Similar Laws.
Representations
Accordingly, by acceptance of a Note (including any interest in a Note) each purchaser and subsequent transferee of a Note will be deemed to have represented and warranted that either (i) no portion of the assets used by such purchaser or transferee to acquire and hold the Notes constitutes assets of any Plan or (ii) the purchase and holding of the Notes by such purchaser or transferee will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or similar violation under any applicable Similar Laws.
Additionally, each purchaser of a Note that is using assets of any Covered Plan to acquire or hold a Note (including any interest in a Note) will be deemed to represent that none of the Issuer, the underwriters or any of the Issuer’s or their respective affiliates has acted as the Covered Plan’s fiduciary, or has been relied upon for any advice, with respect to the purchaser’s decision to acquire any Note.
The foregoing discussion is general in nature and is not intended to be all-inclusive. Due to the complexity of these rules and the penalties that may be imposed upon persons involved in nonexempt prohibited transactions, it is particularly important that fiduciaries, or other persons considering purchasing the Notes on behalf of, or with the assets of, any Plan, consult with their counsel regarding the potential applicability of ERISA, Section 4975 of the Code and any Similar Laws to such investment and whether an exemption would be applicable to the purchase and holding of the Notes. Neither this discussion nor anything in this prospectus is or is intended to be investment advice directed at any potential purchaser that is a Plan, or at such purchasers and holders generally, and such purchasers and holders should consult and rely on their counsel and advisors as to whether an investment in the Notes is consistent with ERISA, the Code and any Similar Laws, as applicable.
Purchasers of the Notes have the exclusive responsibility for ensuring that their purchase and holding of the Notes complies with the fiduciary responsibility rules of ERISA and does not violate the prohibited transaction rules of ERISA, the Code or applicable Similar Laws.
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Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes received in exchange for Old Notes where such Old Notes were acquired as a result of market-making activities or other trading activities. The Issuer has agreed that, starting on the expiration date of the exchange offer and ending on the close of business on the day that is 90 days following that expiration date, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until , 20 , all dealers effecting transactions in the New Notes may be required to deliver a prospectus.
The Issuer will not receive any proceeds from any sale of New Notes by broker-dealers. New Notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the New Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such New Notes. Any broker-dealer that resells New Notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of such New Notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit of any such resale of New Notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
For a period of 90 days after the expiration date of the exchange offer, the Issuer will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The Issuer has agreed to pay all expenses incident to the exchange offer (other than the expenses of counsel for the holders of the Old Notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the Old Notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
By tendering its Old Notes, any broker-dealer that receives New Notes pursuant to the exchange offer agrees to notify us prior to using this prospectus in connection with any sale or transfer of New Notes, acknowledges and agrees that the Registration Rights Agreement provides that, upon notice from us of the occurrence of any event that would result in this prospectus, the registration statement of which this prospectus is a part or any related free writing prospectus containing an untrue statement of a material fact or omitting to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, it will suspend the use of this prospectus or such free writing prospectus, as the case may be, until we have amended or supplemented this prospectus or such free writing prospectus, as the case may be, to correct such misstatement or omission.
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The consolidated financial statements as of December 31, 2021 and December 31, 2020 and for each of the years in the three-year period ended December 31, 2021 and the related notes and financial statement schedules included in our Annual Report on Form 10-K for the year ended December 31, 2021, which is incorporated by reference in this prospectus, have been audited by KPMG LLP, independent registered public accounting firm, as stated in their report appearing therein, and upon the authority of said firm as experts in accounting and auditing.
The validity of the New Notes will be passed upon for us by Sidley Austin LLP, Chicago, Illinois.
Where You Can Find More Information
We are subject to the informational requirements of the Exchange Act and, in accordance with these requirements, we file reports and other information relating to our business, financial condition and other matters with the SEC. We are required to disclose in such reports certain information, as of particular dates, concerning our results of operations and financial condition, executive officers and directors, principal holders of shares, material interests of such persons in transactions with us and other matters. The SEC maintains a website that contains reports and other information regarding registrants that file electronically with the SEC, including the registration statement to which this prospectus relates. The address of that website is www.sec.gov.
Our website is www.jackson.com. Our SEC filings are available free of charge on our website as soon as reasonably practicable after they are electronically filed or furnished to the SEC. You may access these SEC filings on our website. However, other than any documents expressly incorporated by reference in this prospectus, the information on, or accessible through, our website or any other website that is referred to in this prospectus is not part of this prospectus.
The SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The documents incorporated by reference into this prospectus contain important information that you should read about us. The following documents are incorporated by reference into this prospectus:
| · | Our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 7, 2022; |
| · | Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022 and June 30, 2022, filed with the SEC on May 11, 2022 and August 10, 2022, respectively; |
| · | Portions of our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 25, 2022, that are incorporated by reference into Part III of our Annual Report on Form 10-K for the year ended December 31, 2021; and |
| · | Our Current Reports on Form 8-K filed with the SEC on February 9, 2022, March 2, 2022 (solely with respect to the information contained therein that is filed pursuant to Item 8.01), March 14, 2022, April 14, 2022, May 10, 2022 (solely with respect to the information contained therein that is filed pursuant to Item 8.01 only), June 3, 2022, June 8, 2022, June 10, 2022 and August 9, 2022 (solely with respect to the information contained therein that is filed pursuant to Item 8.01). |
We also incorporate by reference in this prospectus any future filings that we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until the termination of the exchange offer to which this prospectus relates; provided, however, that we are not incorporating any information furnished under either Item 2.02 or Item 7.01 or any related exhibit furnished under Item 9.01(d) of any Current Report on Form 8-K unless, and except to the extent, specified in any such Current Report on Form 8-K or in any applicable prospectus.
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You should read the information relating to us in this prospectus together with the information in the documents incorporated or deemed to be incorporated by reference herein. Nothing contained herein shall be deemed to incorporate information furnished to, but not filed with, the SEC.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that such statement contained herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
The documents incorporated by reference into this prospectus are also available on our website as provided under “Where You Can Find More Information.” Information contained on, or that can be accessed through, our website is not part of this prospectus, and you should not consider information on our website to be part of this prospectus unless specifically incorporated herein by reference. You may obtain copies of any or all of the documents incorporated by reference in this prospectus from us free of charge by requesting them in writing or by telephone at our address or from the SEC, in each case as provided under “Where You Can Find More Information.” To obtain timely delivery of any such documents, you should make any such request no later than five business days before the expiration date of the exchange offer.
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Jackson Financial Inc.
OFFER TO EXCHANGE
$600,000,000
aggregate principal amount of its 1.125% Senior Notes due 2023 that have been registered
under the Securities Act of 1933 for any and all of its outstanding 1.125% Senior Notes due 2023
$500,000,000
aggregate principal amount of its 3.125% Senior Notes due 2031 that have been registered
under the Securities Act of 1933 for any and all of its outstanding 3.125% Senior Notes due 2031
$500,000,000
aggregate principal amount of its 4.000% Senior Notes due 2051 that have been registered
under the Securities Act of 1933 for any and all of its outstanding 4.000% Senior Notes due 2051
PROSPECTUS
, 2022
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (“DGCL”) provides that a corporation may indemnify any person, including directors and officers, as well as employees and agents, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent of such corporation. Section 145 of the DGCL provides that the rights contained therein are not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for payments of unlawful dividends or unlawful stock repurchases or (iv) for any transactions from which the director derived an improper personal benefit.
The certificate of incorporation of Jackson Financial Inc. (the “Registrant”) provides that the Registrant will indemnify its directors and officers to the fullest extent permitted by law and that, to the fullest extent permitted by law, no director shall be liable for monetary damages to the Registrant or its stockholders for any breach of fiduciary duty as a director.
The Registrant has obtained industry standard policies of insurance under which coverage is provided to its directors and officers against legal liability for loss which is not indemnified arising from claims made by reason of breach of duty or other wrongful act while acting in their capacity as directors and officers of the Registrant. Further, the Registrant entered into indemnification agreements with its directors and executive officers which would require it, among other things, to indemnify them against certain liabilities which may arise by reason of their status or service as a director or officer and to advance to them expenses, subject to reimbursement to the Registrant if it is determined that they are not entitled to indemnification.
The registration rights agreement dated November 23, 2021 and incorporated by reference as an exhibit hereto provides for indemnification of our directors, certain of our officers and our controlling persons, if any, by the owners of the Old Notes and by any participating broker-dealers (as such terms are defined in the prospectus included in this registration statement) against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”).
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 21. Exhibits and Financial Statement Schedules.
Exhibits
II-1
Financial Statement Schedules
None. Financial statement schedules have been omitted since the required information is included in our consolidated financial statements incorporated by reference into this registration statement.
Item 22. Undertakings.
| (a) | The undersigned Registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
II-2
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement, |
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for purposes of determining liability under the Securities Act of 1933 to any purchaser, if the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
| (5) | That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
| (b) | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference into this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
II-3
| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
| (d) | The undersigned Registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. |
| (e) | The undersigned Registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lansing, State of Michigan, on the 12th day of August, 2022.
| JACKSON FINANCIAL INC. | ||
| By: | /s/ Marcia L. Wadsten | |
| Name: Marcia L. Wadsten | ||
| Title: Executive Vice President and Chief Financial Officer | ||
Each person whose signature appears below hereby constitutes and appoints Laura L. Prieskorn, Marcia L. Wadsten, Carrie L. Chelko and Don W. Cummings, and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to execute for him or her and in his or her name, place and stead, in any and all capacities, any and all amendments (including post-effective amendments) to this registration statement, as the attorney-in-fact and to file the same, with all exhibits thereto and any other documents required in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents and their substitutes, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities indicated below on August 12, 2022:
| Signature | Title | |
| /s/ Laura L. Prieskorn | President, Chief Executive Officer and Director | |
| Laura L. Prieskorn | (Principal Executive Officer) | |
| /s/ Marcia L. Wadsten | Executive Vice President and Chief Financial Officer | |
| Marcia L. Wadsten | (Principal Financial Officer) | |
| /s/ Don W. Cummings | Senior Vice President and Chief Accounting Officer | |
| Don W. Cummings | (Principal Accounting Officer) | |
| /s/ Steven A. Kandarian | Chair of the Board | |
| Steven A. Kandarian | ||
| /s/ Lily Fu Claffee | Director | |
| Lily Fu Claffee | ||
| /s/ Gregory T. Durant | Director | |
| Gregory T. Durant | ||
| /s/ Derek G. Kirkland | Director | |
| Derek G. Kirkland |
| /s/ Drew E. Lawton | Director | |
| Drew E. Lawton | ||
| /s/ Martin J. Lippert | Director | |
| Martin J. Lippert | ||
| /s/ Russell G. Noles | Director | |
| Russell G. Noles | ||
| /s/ Esta E. Stecher | Director | |
| Esta E. Stecher |
Exhibit 5.1
|
|
Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 +1 312 853 7000 +1 312 853 7036 Fax
AMERICA • ASIA PACIFIC • EUROPE |
|
August 12, 2022
Jackson Financial Inc.
1 Corporate Way
Lansing, Michigan 48951
| Re: | 1.125% Senior Notes due 2023 | |
| 3.125% Senior Notes due 2031 | ||
| 4.000% Senior Notes due 2051 |
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-4 (the “Registration Statement”), filed by Jackson Financial Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of (i) $600,000,000 aggregate principal amount of the Company’s 1.125% Senior Notes due 2023 (the “New 2023 Notes”), (ii) $500,000,000 aggregate principal amount of the Company’s 3.125% Senior Notes due 2031 (the “New 2031 Notes”) and (iii) $500,000,000 aggregate principal amount of the Company’s 4.000% Senior Notes due 2051 (together with the New 2023 Notes and the New 2031 Notes, the “New Notes”), which are to be offered, in each case, in exchange for an equivalent aggregate principal amount of the Company’s outstanding 1.125% Senior Notes due 2023 (the “Old 2023 Notes”), 3.125% Senior Notes due 2031 (the “Old 2031 Notes”) and 4.000% Senior Notes due 2051 (together with the Old 2023 Notes and the Old 2031 Notes, the “Old Notes”), respectively. The Old Notes of each series were, and the New Notes of the corresponding series will be, issued under an Indenture dated as of November 23, 2021 (the “Base Indenture”), as amended and supplemented by a First Supplemental Indenture dated as of November 23, 2021 relating to the 1.125% Senior Notes due 2023 (the “First Supplemental Indenture”), a Second Supplemental Indenture dated as of November 23, 2021 relating to the 3.125% Senior Notes due 2031 (the “Second Supplemental Indenture”) and a Third Supplemental Indenture dated as of November 23, 2021 relating to the 4.000% Senior Notes due 2051 (the “Third Supplemental Indenture”; the Base Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture, is hereinafter called the “Indenture”), each between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
| Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships. |
Jackson Financial Inc.
August 12, 2022
Page 2
We have examined the Registration Statement, the Indenture and the resolutions adopted by the board of directors of the Company relating to the Registration Statement, the Indenture and the issuance of Old Notes and the New Notes by the Company. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and other corporate documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinion expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company.
Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that the New Notes will constitute valid and binding obligations of the Company when:
(i) the Registration Statement, as finally amended, shall have become effective under the Securities Act; and
(ii) the New Notes shall have been duly executed by duly authorized officers of the Company and duly authenticated by the Trustee, all in accordance with the provisions of the Indenture, and shall have been duly delivered against surrender and cancellation of a like principal amount of the Old Notes in the manner described in the Registration Statement.
Our opinion is subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief. Our opinion is also subject to (i) provisions of law which may require that a judgment for money damages rendered by a court in the United States of America be expressed only in United States dollars, (ii) requirements that a claim with respect to any New Notes or other obligations that are denominated or payable other than in United States dollars (or a judgment denominated or payable other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (iii) governmental authority to limit, delay or prohibit the making of payments outside of the United States of America or in a foreign currency.
With respect to each instrument or agreement referred to in or otherwise relevant to the opinion set forth herein (each, an “Instrument”), we have assumed, to the extent relevant to the opinion set forth herein, that (i) each party to such Instrument (if not a natural person) was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the laws of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has full right, power and authority to execute, deliver and perform its obligations under such Instrument, (ii) such Instrument has been duly authorized, executed and delivered by each party thereto and (iii) such Instrument was at all times and is a valid, binding and enforceable agreement or obligation, as the case may be, of each party thereto.
Jackson Financial Inc.
August 12, 2022
Page 3
This opinion letter is limited to the General Corporation Law of the State of Delaware and the laws of the State of New York (excluding the securities laws of the State of New York). We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement and any amendment thereto. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, | |
| /s/ Sidley Austin LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 7, 2022, with respect to the consolidated financial statements and financial statement schedules I to V of Jackson Financial Inc. and Subsidiaries, incorporated herein by reference and to the reference to our firm under the heading “Experts” in the prospectus.
| /s/ KPMG LLP |
Chicago, Illinois
August 12, 2022
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION
TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ¨
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
(Exact name of trustee as specified in its charter)
| N/A | 95-3571558 | |
|
(State of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 400 South Hope Street, Suite 500 | 90071 | |
| Los Angeles, California | (Zip code) | |
| (Address of principal executive offices) | ||
Legal Department
The Bank of New York Mellon Trust Company, N.A.
240 Greenwich Street
New York, NY 10286
(212) 635-1270
(Name, address and telephone number of agent for service)
JACKSON FINANCIAL INC.
(Exact name of obligor as specified in its charter)
| Delaware | 98-0486152 | |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 1 Corporate Way | 48951 | |
| Lansing, Michigan | (Zip code) | |
| (Address of principal executive offices) | ||
1.125% Senior Notes due 2023, 3.125% Senior Notes due 2031, 4.000% Senior Notes due 2051
(Titles of the indenture securities)
| Item 1. | General Information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name | Address |
| Comptroller of the Currency – United States Department of the Treasury | Washington, D.C. 20219 |
| Federal Reserve Bank | San Francisco, California 94105 |
| Federal Deposit Insurance Corporation | Washington, D.C. 20429 |
| (b) | Whether it is authorized to exercise corporate trust powers. | |
| Yes. |
| Item 2. | Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. |
| None. |
| Items 3-15. | No responses are included for Items 3 through 15. Responses to those Items are not required because, as provided in General Instruction B, the obligor is not in default on any securities issued under indentures under which The Bank of New York Mellon Trust Company N.A. is a trustee. |
| Item 16. |
List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d). |
| Exhibit 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, National Association (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). | |
| Exhibit 2. | A copy of certificate of authority of the trustee to commence business (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948). | |
| Exhibit 3. | A copy of the authorization of the trustee to exercise corporate trust powers. (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875). | |
| Exhibit 4. | A copy of the existing by-laws of the trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). | |
| Exhibit 5. | Not applicable. | |
| Exhibit 6. | The consent of the trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). | |
| Exhibit 7. | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |
| Exhibit 8. | Not applicable. | |
| Exhibit 9. | Not applicable. | |
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 12th day of August, 2022.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | |
| /s/ April Bradley | |
| Name: April Bradley | |
| Title: Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 400 South Hope Street, Suite 500, Los Angeles, CA 90071
At the close of business June 30, 2022, published in accordance with Federal regulatory authority instructions.
| ASSETS | ||||
| Cash and balances due from depository institutions: | ||||
| Noninterest-bearing balances and currency and coin | 3,548 | |||
| Interest-bearing balances | 464,922 | |||
| Securities: | ||||
| Held-to-maturity securities | 0 | |||
| Available-for-sale debt securities | 50,522 | |||
| Equity securities with readily determinable fair values not held for trading | 0 | |||
| Federal funds sold and securities purchased under agreements to resell: | ||||
| Federal funds sold in domestic offices | 0 | |||
| Securities purchased under agreements to resell | 0 | |||
| Loans and lease financing receivables: | ||||
| Loans and leases held for sale | 0 | |||
| Loans and leases, held for investment | 0 | |||
| LESS: Allowance for loan and lease losses | 0 | |||
| Loans and leases held for investment, net of allowance | 0 | |||
| Trading assets | 0 | |||
| Premises and fixed assets (including capitalized leases) | 17,717 | |||
| Other real estate owned | 0 | |||
| Investments in unconsolidated subsidiaries and associated companies | 0 | |||
| Direct and indirect investments in real estate ventures | 0 | |||
| Intangible assets | 856,313 | |||
| Other assets | 104,690 | |||
| Total assets | $ | 1,497,712 | ||
[Table continues on following page]
| LIABILITIES | ||||
| Deposits: | ||||
| In domestic offices | 1,570 | |||
| Noninterest-bearing | 1,570 | |||
| Interest-bearing | 0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: | ||||
| Federal funds purchased in domestic offices | 0 | |||
| Securities sold under agreements to repurchase | 0 | |||
| Trading liabilities | 0 | |||
| Other borrowed money: | ||||
| (includes mortgage indebtedness and obligations under capitalized leases). | 0 | |||
| Not applicable | ||||
| Not applicable | ||||
| Subordinated notes and debentures | 0 | |||
| Other liabilities | 264,945 | |||
| Total liabilities | 266,515 | |||
| Not applicable | ||||
| EQUITY CAPITAL | ||||
| Perpetual preferred stock and related surplus | 0 | |||
| Common stock | 1,000 | |||
| Surplus (exclude all surplus related to preferred stock) | 325,102 | |||
| Not available | ||||
| Retained earnings | 905,091 | |||
| Accumulated other comprehensive income | 4 | |||
| Other equity capital components | 0 | |||
| Not available | ||||
| Total bank equity capital | 1,231,197 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||
| Total equity capital | 1,231,197 | |||
| Total liabilities and equity capital | 1,497,712 | |||
I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
| Matthew J. McNulty | ) | CFO |
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
| Antonio I. Portuondo, President | ) | |
| Michael P. Scott, Managing Director | ) | Directors (Trustees) |
| Kevin P. Caffrey, Managing Director | ) |
Exhibit 99.1
LETTER OF TRANSMITTAL
JACKSON FINANCIAL INC.
OFFER TO EXCHANGE
$600,000,000 aggregate
principal amount of its 1.125% Senior Notes due 2023 that have been
registered under the Securities Act of 1933 (the “New 2023 Notes”)
for any and all of its
outstanding 1.125% Senior Notes due 2023 (the “Old 2023 Notes”)
$500,000,000 aggregate
principal amount of its 3.125% Senior Notes due 2031 that have been
registered under the Securities Act of 1933 (the “New 2031 Notes”)
for any and all of its
outstanding 3.125% Senior Notes due 2031 (the “Old 2031 Notes”)
$500,000,000 aggregate
principal amount of its 4.000% Senior Notes due 2051 that have been
registered under the Securities Act of 1933 (the “New 2051 Notes”
and, together with the New
2023 Notes and the New 2031 Notes, the “New Notes”) for any and all of its outstanding 4.000%
Senior
Notes due 2051 (the “Old 2051 Notes” and, together with the Old 2023 Notes and the Old
2031 Notes, the “Old Notes”)
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 2022, UNLESS EXTENDED BY JACKSON FINANCIAL INC.
The Exchange Agent for the Exchange Offer is:
The Bank of New York Mellon
| By Hand, Overnight Delivery or Mail (Registered or Certified Mail Recommended): |
By Facsimile Transmission; |
|
The Bank of New York Mellon, as Exchange c/o The Bank of New York Mellon Corporation Corporate Trust Operations–Reorganization Unit 2001 Bryan Street, 10th Floor Dallas, Texas 75201 Attention: Sherma Thomas |
(732) 667-9408 Attention: Sherma Thomas
Your fax cover sheet should provide a call- |
|
To confirm receipt or for more information, call: (315) 414-3362 Or use email: CT_REORG_UNIT_INQUIRIES@bnymellon.com | |
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY OF THIS LETTER OF TRANSMITTAL.
The undersigned acknowledges receipt of the prospectus dated , 2022 (the “Prospectus”) of Jackson Financial Inc., a Delaware corporation (the “Company”), and this Letter of Transmittal (this “Letter of Transmittal”), which together constitute the Company’s offer to exchange (the “Exchange Offer”) up to $600,000,000 aggregate principal amount of 1.125% Senior Notes due 2023, up to $500,000,000 aggregate principal amount of 3.125% Senior Notes due 2031 and up to $500,000,000 aggregate principal amount of 4.000% Senior Notes due 2051, which have been registered under the Securities Act of 1933, as amended, in each case in exchange for a like aggregate principal amount of Old Notes of the corresponding series that are validly tendered and not validly withdrawn prior to 5:00 p.m., New York City time, on the Expiration Date (as defined below). The Bank of New York Mellon is acting as exchange agent (the “Exchange Agent”) for the Exchange Offer. The term “Expiration Date”, as used herein, means , 2022 except that if the Company, in its sole and absolute discretion, extends the period of time during which the Exchange Offer is open, “Expiration Date” shall mean the latest date to which the Exchange Offer has been extended. Capitalized terms not defined herein shall have the respective meanings ascribed to them in the Prospectus.
For each Old Note validly tendered and not validly withdrawn by the holder thereof prior to 5:00 p.m., New York City time, on the Expiration Date of the Exchange Offer and accepted for exchange by the Company, all on the terms and subject to the conditions set forth in this Letter of Transmittal and the Prospectus, the tendering holder will receive New Notes in an aggregate principal amount and series corresponding to the aggregate principal amount and series of the Old Notes so tendered and accepted by the Company. Tenders of Old Notes may be withdrawn no later than 5:00 p.m., New York City time, on the Expiration Date by following the procedures set forth in the Prospectus and in this Letter of Transmittal.
This Letter of Transmittal is to be completed by a holder of Old Notes if certificates for such Old Notes are to be forwarded herewith and may be used if a tender is to be made by book-entry transfer of Old Notes to the account maintained by the Exchange Agent at The Depository Trust Company (“DTC”) pursuant to DTC’s Automated Tender Offer Program (“ATOP”) and an Agent’s Message (as defined below) is not delivered to the Exchange Agent. If Old Notes are tendered by book-entry transfer pursuant to DTC’s ATOP procedures, the tendering holder may cause DTC to deliver an Agent’s Message to the Exchange Agent in lieu of this Letter of Transmittal. The term “Agent’s Message” means a computer-generated message, transmitted by DTC to and received by the Exchange Agent and forming a part of a Book-Entry Confirmation (as defined below), which states that the holder of the Old Notes acknowledges and agrees to be bound by the terms of this Letter of Transmittal. The term “Book-Entry Confirmation” means an electronic confirmation from DTC of the book-entry transfer of Old Notes into the Exchange Agent’s account at DTC.
Delivery of documents to DTC does not constitute delivery to the Exchange Agent.
The method of delivery (whether physical or electronic) of Old Notes, Letters of Transmittal, Agent’s Messages, Book-Entry Confirmations and all other required documents is at your risk and election, provided that Old Notes in book-entry form must be tendered through DTC’s ATOP procedures. If such delivery is by mail, it is recommended that you use registered mail, properly insured, with return receipt requested. In all cases, you should allow sufficient time to assure timely delivery. You may request the broker, dealer, bank or other financial institution or nominee through which you may hold Old Notes to effect these transactions for you. No Letters of Transmittal, Old Notes or other documents should be sent to the Company.
The undersigned has completed the appropriate boxes below and signed this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer.
2
List below the Old Notes to which this Letter of Transmittal relates. If the space provided below is inadequate, the certificate numbers and principal amount of Old Notes should be listed on a separate signed schedule affixed hereto.
| DESCRIPTION OF OLD NOTES | ||||
| Name(s) and Address(es) of Registered Holder(s) (Please fill in, if blank) |
1 Certificate Number(s)* |
2 Aggregate Principal Amount Represented |
3 Principal Amount Tendered** |
|
| ¨ 1.125% Senior Notes due 2023 | ||||
| ¨ 3.125% Senior Notes due 2031 | ||||
| ¨ 4.000% Senior Notes due 2051 | ||||
| Total Principal Amount Tendered: |
||||
* Need not be completed if Old Notes are being tendered by book-entry transfer. ** Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the Old Notes represented by the Old Notes indicated in column 2. See Instruction 2. Old Notes tendered hereby must be in denominations of $2,000 and integral multiples of $1,000 in excess thereof, and if any Old Note is tendered in part, the untendered portion of such Old Note must be a denomination of $2,000 or an integral multiple of $1,000 in excess thereof. See Instruction 1. | ||||
3
| ¨ | CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING: |
| Name of Tendering Institution: | |
| Account Number: | |
| Transaction Code Number: |
By causing DTC to credit the Old Notes being tendered to the Exchange Agent’s account at DTC using ATOP and by complying with applicable ATOP procedures with respect to the Exchange Offer, including causing DTC to transmit to the Exchange Agent an Agent’s Message stating that the holder of the Old Notes acknowledges and agrees to be bound by the terms of this Letter of Transmittal, the participant in DTC tendering the Old Notes confirms on behalf of itself and each beneficial owners of such Old Notes all provisions of this Letter of Transmittal (including all representations, warranties and agreements) applicable to it and each such beneficial owner as fully as if it and each such beneficial owner had completed the information required herein and executed and delivered this Letter of Transmittal to the Exchange Agent.
| ¨ | CHECK HERE IF TENDERED OLD NOTES ARE ENCLOSED HEREWITH. |
| ¨ | CHECK HERE IF YOU ARE A PARTICIPATING BROKER-DEALER (AS DEFINED BELOW) that, as described in this Letter of transmittal, will be required to deliver the prospectus, as amended or supplemented from time to time, in connection with resales or other transfers of New Notes received in the Exchange Offer and you therefore WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO AND INDICATE THE NAME AND ADDRESS TO WHICH THOSE DOCUMENTS SHOULD BE DELIVERED; PROVIDED THAT, IF YOU HAVE SET FORTH AN EMAIL ADDRESS IN THE SPACE BELOW, YOU WILL BE DEEMED TO HAVE CONSENTED TO DELIVERY OF THE FOREGOING DOCUMENTS BY EMAIL, IN WHICH CASE ONE COPY OF EACH SUCH DOCUMENT WILL BE SENT TO YOU AT THE EMAIL ADDRESS YOU HAVE SET FORTH BELOW. |
| Name: | ||
| Address: | ||
| Telephone Number: | ||
| Email Address: |
4
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
1. Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company the aggregate principal amount of Old Notes indicated above. Subject to, and effective upon, the acceptance for exchange of the Old Notes tendered hereby by the Company, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Old Notes as are being tendered hereby.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the undersigned’s true and lawful agent and attorney-in-fact with respect to such tendered Old Notes (with full knowledge that the Exchange Agent also acts as the agent of the Company in connection with the Exchange Offer), with full power of substitution, without limitation, to assign, transfer and deliver the Old Notes, or cause the Old Notes to be assigned, transferred and delivered, to the Company, and to deliver all accompanying evidences of transfer and authenticity, and present such Old Notes for transfer on the books of the Company and to receive all benefits and otherwise exercise all rights of beneficial ownership of such Old Notes, all in accordance with the terms of the Exchange Offer.
2. The undersigned hereby acknowledges, represents and warrants to and agrees with the Company that the undersigned and each beneficial owner of Old Notes tendered hereby has full right, power and authority to tender, sell, assign and transfer all right, title and interest in and to the Old Notes tendered hereby, and to acquire the New Notes issuable upon the exchange of such tendered Old Notes, and that, if and when such Old Notes are accepted by the Company for exchange, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The undersigned hereby further acknowledges, represents and warrants to, and agrees with, the Company that (i) neither the undersigned nor any beneficial owner of the Old Notes being tendered hereby is an “affiliate” (as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”)) of the Company; (ii) any New Notes received in the Exchange Offer by the undersigned or any beneficial owner of any Old Notes tendered hereby will be acquired by it in the ordinary course of its business; (iii) neither the undersigned nor any beneficial owner of Old Notes tendered hereby has any arrangement or understanding with any person to engage in, and neither the undersigned nor any such beneficial owner is engaged in or intends to engage in, the distribution (within the meaning of the Securities Act) of the New Notes in violation of the Securities Act; (iv) neither the undersigned nor any such beneficial owner is a broker-dealer that will receive New Notes in the Exchange Offer in exchange for Old Notes that it purchased from the Company for resale pursuant to Rule 144A under the Securities Act or any other available exemption from registration under the Securities Act; and (v) if the undersigned or any such beneficial owner is a broker-dealer holding Old Notes acquired for its own account as a result of its market-making or other trading activities (a “Participating Broker-Dealer”), it will deliver (or, to the extent permitted by applicable law, make available) a prospectus meeting the requirements of the Securities Act to purchasers and other transferees in connection with any resale or other transfer of the New Notes it receives in exchange for such Old Notes pursuant to the Exchange Offer (provided, however, that by so acknowledging and by delivering (or making available as aforesaid) a prospectus, it will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act).
The undersigned acknowledges and agrees that, if the undersigned or any beneficial owner of Old Notes tendered hereby is unable to make the representations and warranties set forth in the immediately preceding paragraph or elsewhere in this Letter of Transmittal, or if the undersigned or any such beneficial owner is participating in the Exchange Offer for the purpose of participating in a distribution (within the meaning of the Securities Act) of the New Notes to be acquired in the Exchange Offer, or if the undersigned or any such beneficial owner is a broker-dealer that will receive New Notes in the Exchange Offer in exchange for Old Notes that it acquired from the Company for resale pursuant to Rule 144A under the Securities Act or any other available exemption from registration under the Securities Act, neither the undersigned nor any such beneficial owner will be permitted to tender its Old Notes in the Exchange Offer. The undersigned, if it is not the beneficial owner of the Old Notes being tendered hereby, acknowledges and agrees that all of the representations, warranties, acknowledgements and agreements set forth herein are being made by it on its own behalf and on behalf of each such beneficial owner for the benefit of the Company.
5
3. The undersigned, on behalf of itself and each beneficial owner of any Old Notes tendered hereby, acknowledges and agrees that the Exchange Offer is being made in reliance on interpretations by the staff of the Securities and Exchange Commission (the “SEC”), as set forth in no-action letters issued to third parties and referred to in the Prospectus under the caption “The Exchange Offer—Resales of New Notes” and, as a result, the Company believes that, except as provided in the next sentence and in the next paragraph, the New Notes received pursuant to the Exchange Offer in exchange for the Old Notes may be offered for resale, resold or otherwise transferred by a holder thereof, without compliance with the registration and prospectus delivery requirements of the Securities Act, unless (1) such holder is an “affiliate” (as defined in Rule 405 under the Securities Act) of the Company, (2) the New Notes received by such holder in the Exchange Offer will not be acquired by such holder in the ordinary course of its business or (3) such holder has an arrangement or understanding with any person to engage in, or is engaged in or intends to engage in, the distribution (within the meaning of the Securities Act) of the New Notes in violation of the Securities Act. However, the undersigned, on behalf of itself and each beneficial owner of Old Notes tendered hereby, acknowledges and agrees that, if the undersigned or any such beneficial owner is a Participating Broker-Dealer holding Old Notes acquired for its own account as a result of market-making or other trading activities and who receives New Notes in exchange for such Old Notes in the Exchange Offer, it may be an “underwriter” within the meaning of the Securities Act and it must (and the undersigned, on behalf of itself and each such beneficial owner, acknowledges and agrees that it will) deliver (or, to the extent permitted by applicable law, make available) a prospectus meeting the requirements of the Securities Act to purchasers and other transferees in connection with any resale or other transfer of such New Notes. However, by so acknowledging and delivering a prospectus, a Participating Broker-Dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. The undersigned, on behalf of itself and each beneficial owner of Old Notes tendered hereby, further acknowledges and agrees that, if it is a Participating Broker-Dealer, it may use the Prospectus, as amended or supplemented from time to time, in connection with resales or other transfers of New Notes received for its own account in the Exchange Offer in exchange for Old Notes that it acquired for its own account as a result of market-making or other trading activities for a period ending on the earlier of (i) 180 days after the registration statement of which the Prospectus is a part becomes effective and (ii) the date on which such Participating Broker-Dealer is no longer required to deliver a prospectus in connection with resales of New Notes (subject, in each case, to the Company’s right to suspend use of the Prospectus under the circumstances described in the Prospectus under the caption “Plan of Distribution”), so long as such Participating Broker-Dealer has notified the Company by completing, executing and delivering this Letter of Transmittal to the Exchange Agent at the address set forth above prior to 5:00 p.m., New York City time, on the Expiration Date in which such broker-dealer indicates, by checking the appropriate box set forth above in this Letter of Transmittal, that it will use the Prospectus for such purpose.
The undersigned, on behalf of itself and each beneficial owner of Old Notes being tendered hereby, acknowledges and agrees that if the undersigned or any beneficial owner of the Old Notes being tendered falls into one or more of the categories set forth in clauses (1) through (3) of the immediately preceding paragraph, or if the undersigned or any such beneficial owner is participating in the Exchange Offer for the purpose of participating in a distribution (within the meaning of the Securities Act) of the New Notes to be acquired in the Exchange Offer, or if the undersigned or any such beneficial owner is a broker-dealer that will receive New Notes in the Exchange Offer in exchange for Old Notes that it acquired from the Company for resale pursuant to Rule 144A under the Securities Act or any other available exemption from registration under the Securities Act, (i) it will not be able to rely on the interpretations of the SEC staff enunciated in the no-action letters mentioned above or in other interpretive letters of similar effect, (ii) it will not be permitted to tender its Old Notes in the Exchange Offer, (iii) in the absence of an applicable exemption, it must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any offer, sale or other transfer of Notes, and (iv) any registration statement used in connection with such offer, sale or other transfer of Notes must contain the selling security holder information required by Item 507 of Regulation S-K under the Securities Act. Failure to comply with such registration and prospectus delivery requirements may result in liability under the Securities Act and the Company will not be responsible for, or indemnify the undersigned or any such beneficial owner against, any such liability. The undersigned, on behalf of itself and each beneficial owner of Old Notes tendered hereby, acknowledges and agrees that each broker-dealer that receives New Notes for its own account pursuant to the Exchange Offer will be deemed to acknowledge and agree that it will deliver (or, to the extent permitted by applicable law, make available) to purchasers and other transferees a prospectus meeting the requirements of the Securities Act in connection with any resale or other transfer of New Notes received in the Exchange Offer as aforesaid, but only Participating Broker-Dealers will be entitled, subject to the limitations described above, to use the Prospectus, as amended or supplemented from time to time, in connection with resales or other transfers of New Notes received in the Exchange Offer.
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The undersigned and each beneficial owner of Old Notes tendered hereby is aware that the SEC has not considered the Exchange Offer in the context of a no-action letter and there can be no guarantee that the staff of the SEC would make a similar determination with respect to the Exchange Offer as in the circumstances described in the no action letters referred to above.
4. The undersigned will, upon request, execute and deliver any additional documents deemed by the Company to be necessary or desirable to complete the tender, exchange, sale, assignment and transfer of the Old Notes tendered hereby or to further evidence the accuracy or performance of any of the representations, warranties, acknowledgements or agreements made by the undersigned herein. All authority conferred or agreed to be conferred in this Letter of Transmittal and every obligation and agreement hereunder of the undersigned and each beneficial owner of Old Notes tendered hereby shall survive the death, incapacity or dissolution of the undersigned and of any such beneficial owner and shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and personal and legal representatives of the undersigned and each such beneficial owner. This tender may be withdrawn only in accordance with the procedures set forth under the caption “The Exchange Offer—Withdrawal Rights” in the Prospectus and in Instruction 9 in this Letter of Transmittal.
5. Unless otherwise indicated herein in the box entitled “Special Issuance Instructions” below, please deliver the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) registered in the name of the undersigned or, in the case of a book-entry delivery of Old Notes, please credit the account indicated above maintained at DTC. Similarly, unless otherwise indicated under the box entitled “Special Delivery Instructions” below, please send the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) to the undersigned at the address shown above in the box entitled “Description of Old Notes” or, in the case of book-entry delivery of Old Notes, please credit the New Notes to the account indicated above maintained at DTC.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED “DESCRIPTION OF OLD NOTES” ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS SET FORTH IN SUCH BOX ABOVE.
THE UNDERSIGNED ACKNOWLEDGES THAT THE EXCHANGE OFFER IS SUBJECT TO THE MORE DETAILED TERMS SET FORTH IN THE PROSPECTUS.
BY USING THE ATOP PROCEDURES TO TENDER OLD NOTES, THE UNDERSIGNED WILL NOT BE REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL PHYSCIALLY TO THE EXCHANGE AGENT. HOWEVER, IN THAT CIRCUMSTANCE THE UNDERSIGNED WILL BE DEEMED TO AGREE TO BE BOUND BY THE TERMS OF THIS LETTER OF TRANSMITTAL AND TO HAVE MADE ALL OF THE REPRESENTATIONS, WARRANTIES, ACKNOWLEDGEMENTS AND AGREEMENTS SET FORTH HEREIN, BOTH ON BEHALF OF ITSELF AND ON BEHALF OF THE BENEFICIAL OWNERS OF THE OLD NOTES BEING TENDERED.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR AN AGENT’S MESSAGE IN LIEU THEREOF (TOGETHER WITH THE CERTIFICATES FOR OLD NOTES OR A BOOK- ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTATION) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.
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SPECIAL ISSUANCE
INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be issued in the name of someone other than the person or persons whose signature(s) appear(s) on this Letter of Transmittal below, or if Old Notes delivered by book-entry transfer which are not accepted for exchange are to be returned by credit to an account maintained at DTC other than the account indicated above. See Instruction 3.
Issue New Notes and/or Old Notes to:
| Name(s): | |
| (Please type or print) | |
| Address: | |
| (Please type or print) | |
| (Including Zip Code) |
| Telephone Number: |
| Taxpayer or Employer Identification or Social Security No(s): |
(Complete Form W-9 or the applicable Form W-8)
¨ Credit unexchanged Old Notes delivered by book-entry transfer to the DTC account set forth below.
| DTC Account Number: |
8
SPECIAL
DELIVERY INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be sent to someone other than the person or persons whose signature(s) appear(s) on this Letter of Transmittal below or to such person or persons at an address other than shown in the box entitled “Description of Old Notes” on this Letter of Transmittal above.
Mail New Notes and/or Old Notes to:
| Name(s): | |
| (Please type or print) | |
| Address: | |
| (Please type or print) | |
| (including Zip Code) |
| Taxpayer or Employer Identification or Social Security No(s).: |
9
PLEASE SIGN HERE
(To be Completed
by All Tendering Holders)
(Complete Enclosed Form W-9)
| , | , 2022 | ||
| , | , 2022 | ||
| Signature(s) of Owner(s) | (Date) |
Area Code and Telephone No.:
This Letter of Transmittal must be signed by the registered holder(s) as their name(s) appear(s) on the certificate(s) for the Old Notes hereby tendered or on a security position listing or by any person(s) authorized to become registered holder(s) by endorsements on such certificate(s) or by bond powers transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in fiduciary or representative capacity, please set forth full title. See Instruction 3.
(Please type or print)
| Name(s): | |
| Capacity: | |
| Address: | |
| (including Zip Code) | |
| Principal place of business (if different from address listed above): |
| (including Zip Code) |
| Area Code and Telephone No.: |
| Taxpayer or Employer Identification or Social Security No(s).: |
SIGNATURE
GUARANTEE
(If required by Instruction 3)
| Signature(s) Guaranteed by An Eligible Institution:1 | |
| (Authorized Signature) | |
| Print Name and Title: | |
| Print Name of Firm: |
1 An “Eligible Institution” means a firm which is a member of the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange Medallion Program.
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INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer to Exchange
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD NOTES.
This Letter of Transmittal is to be completed by holders of Old Notes if certificates for such Old Notes are to be forwarded herewith and may be used if tenders are to be made by book-entry transfer of Old Notes to the account maintained by the Exchange Agent at DTC pursuant to DTC’s Automated Tender Offer Program (“ATOP”) and an Agent’s Message is not delivered to the Exchange Agent. If Old Notes are tendered by book-entry transfer pursuant to DTC’s ATOP procedures, the tendering holder may cause DTC to deliver an Agent’s Message to the Exchange Agent in lieu of this Letter of Transmittal. The term “Agent’s Message” means a computer-generated message, transmitted by DTC to and received by the Exchange Agent and forming a part of a Book-Entry Confirmation (as defined below), which states that the holder of the Old Notes acknowledges and agrees to be bound by the terms of this Letter of Transmittal. The term “Book-Entry Confirmation” means an electronic confirmation from DTC of the book-entry transfer of the holder’s Old Notes into the Exchange Agent’s account at DTC. Certificates for all physically tendered Old Notes, or Book-Entry Confirmation that the Old Notes being tendered through DTC’s ATOP procedures have been delivered to the applicable account of the Exchange Agent at DTC, as the case may be, as well as a properly completed and duly executed Letter of Transmittal (or an Agent’s Message in lieu thereof) and any other documents required by this Letter of Transmittal and the Prospectus, must be received by the Exchange Agent (at the address set forth herein in the case of documents delivered physically), prior to 5:00 p.m., New York City time, on the Expiration Date. Old Notes tendered hereby must be in denominations of $2,000 and integral multiples of $1,000 in excess thereof, provided that, if any Old Note is tendered in part, the untendered portion of such Old Note must be a denomination of $2,000 or an integral multiple of $1,000 in excess thereof.
The method of delivery (whether physical or electronic) of Old Notes, Letters of Transmittal, Agent’s Messages, Book-Entry Confirmations and all other required documents is at the election and risk of the tendering holders, provided that Old Notes in book-entry form must be tendered through DTC’s ATOP procedures. If such delivery is by mail, it is recommended that the mailing be by registered mail, properly insured, with return receipt requested. In all cases, the holder should allow sufficient time to insure delivery to the Exchange Agent before 5:00 p.m., New York City time, on the Expiration Date. The holder may request the broker, dealer, bank or other financial institution or nominee through which it may hold Old Notes to effect these transactions for it. No Letters of Transmittal, Old Notes or other documents should be sent to the Company.
See “The Exchange Offer” section of the Prospectus.
2. PARTIAL TENDERS (NOT APPLICABLE TO NOTE HOLDERS WHO TENDER BY BOOK-ENTRY TRANSFER).
If less than all of the Old Notes evidenced by a submitted certificate are to be tendered, the tendering holder(s) should fill in the aggregate principal amount of Old Notes to be tendered in the box above entitled “Description of Old Notes—Principal Amount Tendered.” A reissued certificate representing the non-tendered Old Notes (which must be in a denomination of $2,000 or an integral multiple of $1,000 in excess thereof) will be sent to such tendering holder, unless otherwise provided in the appropriate box on this Letter of Transmittal, promptly after the Expiration Date. All of the Old Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated.
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3. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the registered holder(s) of the Old Notes tendered hereby, the signature(s) must correspond exactly with the name(s) as written on the face of the certificate(s) without any change whatsoever. In the case of Old Notes tendered by book-entry transfer, the signature on this Letter of Transmittal must correspond exactly with the name appearing on DTC’s security position listing without any change whatsoever.
If any tendered Old Notes are owned of record by two or more joint owners, all of such owners must sign this Letter of Transmittal.
If any tendered Old Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal as there are different registrations of certificates.
When this Letter of Transmittal is signed by the registered holder or holders of the Old Notes specified herein and tendered hereby, no endorsements of the certificate(s) evidencing such Old Notes or separate bond powers are required. If, however, the New Notes are to be issued, or any untendered Old Notes are to be reissued, in the name(s) of any person(s) other than such registered holder(s), then such certificate(s) must be endorsed or accompanied by appropriate bond powers (satisfactory to the Company and the Exchange Agent in their sole and absolute discretion), in each case signed exactly as the name(s) of the registered holder(s) appear(s) on the certificate(s), and the signature(s) on such certificate(s) or bond powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person or persons other than the registered holder(s) of any certificate(s) specified herein, such certificate(s) must be endorsed or accompanied by appropriate bond powers (satisfactory to the Company and the Exchange Agent in their sole and absolute discretion), in each case signed exactly as the name(s) of the registered holder(s) appear(s) on the certificate(s), and the signature(s) on such certificate(s) or bond powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company or the Exchange Agent, proper evidence satisfactory to the Company and to the Exchange Agent of their authority to so act must be submitted with this Letter of Transmittal.
Endorsements on certificates for Old Notes or signatures on bond powers or powers required by this Instruction 3 must be guaranteed by an Eligible Institution. As used herein, “Eligible Institution” means a firm which is a member of the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange Medallion Program.
Signatures on this Letter of Transmittal need not be guaranteed by an Eligible Institution, provided the Old Notes are tendered: (i) by the registered holder(s) of such Old Notes (which term, for purposes of this Letter of Transmittal, includes any participant in DTC’s system whose name appears on a security position listing as the holder of such Old Notes) who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on this Letter of Transmittal, or (ii) for the account of an Eligible Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Old Notes should indicate in the applicable box the name and address to which New Notes issued pursuant to the Exchange Offer and/or substitute certificates evidencing Old Notes not exchanged are to be issued or sent, if different from the name or address of the person signing this Letter of Transmittal. In the case of issuance in a different name, the taxpayer or employer identification number or social security number of each person named also must be indicated. Holders tendering Old Notes by book-entry transfer may request that Old Notes not exchanged be credited to such account maintained at DTC as such holder may designate hereon. If no such instructions are given, such Old Notes not exchanged will be returned to the name and address or DTC account of the person signing this Letter of Transmittal.
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5. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the transfer of Old Notes to it or upon its order pursuant to the Exchange Offer. If, however, New Notes and/or Old Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder(s) of the Old Notes tendered hereby, if tendered Old Notes are registered in the name of any person(s) other than the person(s) signing this Letter of Transmittal, or if a transfer tax is imposed for any reason other than the transfer of Old Notes to, or upon the order of, the Company pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered holder(s) or any other persons) will be payable by the tendering holder(s). If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith or, in the case of Old Notes tendered by book-entry transfer, contemporaneously with the tender of such Old Notes, the amount of such transfer taxes will be billed to such tendering holder(s) or the Company may refuse to accept the Old Notes tendered by such holder.
6. WAIVER OF CONDITIONS.
The Company reserves the right, in its sole and absolute discretion, to waive, at any time and from time to time, satisfaction of any or all conditions of the Exchange Offer enumerated in the Prospectus.
7. NO CONDITIONAL TENDERS; DEFECTS.
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders of Old Notes, by execution of this Letter of Transmittal or delivery of an Agent’s Message in lieu thereof, shall waive any right to receive notice of the acceptance of their Old Notes for exchange.
The undersigned acknowledges and agrees that neither the Company, the Exchange Agent nor any other person is under any duty to notify the undersigned or any other person of any defect or irregularity with respect to its tender of Old Notes for exchange, or if any Old Notes, Letters of Transmittal, Agent’s Messages, Book-Entry Confirmations or other documents are or are not received by the Exchange Agent, and no one will be liable for failing to provide such notification.
8. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES.
Any holder whose Old Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address or telephone number indicated above for further instructions.
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9. WITHDRAWAL RIGHTS.
Tenders of Old Notes may be withdrawn no later than 5:00 p.m., New York City time, on the Expiration Date.
For a withdrawal of tendered Old Notes to be effective, the Exchange Agent must receive, in the case of Old Notes tendered pursuant to DTC’s ATOP procedures, an electronic notice of withdrawal transmitted by DTC on behalf of the DTC participant that tendered such Old Notes or, in the case of Old Notes in certificated form, if any, tendered by physical delivery, a written (which may be given by telegram), electronic mail or facsimile notice of withdrawal at the address, electronic mail address or facsimile number above, in each case no later than 5:00 p.m., New York City time, on the Expiration Date. The notice of withdrawal must:
| · | specify the name(s) of the person(s) having tendered the Old Notes to be withdrawn and, if different, the name of the registered holder(s) of such Old Notes (or, in the case of Old Notes tendered by book-entry transfer, the name and DTC account number of the DTC participant that tendered such Old Notes), |
| · | identify the Old Notes to be withdrawn (including the CUSIP numbers and, in the case of Old Notes in certificated form, the certificate numbers thereof) and principal amount of such Old Notes, |
| · | in the case of Old Notes tendered through DTC’s ATOP procedures, specify the name and account number at DTC to which withdrawn Old Notes should be credited, |
| · | in the case of Old Notes in certificated form physically delivered to the Exchange Agent, be signed by the same person(s) and in the same manner as this Letter of Transmittal, including any signature guarantees (or, in the case of Old Notes tendered by book-entry transfer, be signed by or transmitted on behalf of the same DTC participant that tendered such Old Notes), or be accompanied by evidence satisfactory to the Company and the Exchange Agent that the person(s) withdrawing the tender has succeeded to the beneficial ownership of those Old Notes, |
| · | contain a statement that the holder or holders, as the case may be, are withdrawing their election to have the Old Notes exchanged, and |
| · | if this Letter of Transmittal was executed by a person or persons other than the registered holder(s), be accompanied by a properly completed irrevocable proxy authorizing such person(s) to effect such withdrawal on behalf of such registered holder(s). |
The signature(s) on a notice of withdrawal must be guaranteed by an Eligible Institution unless the applicable Old Notes were tendered by an Eligible Institution and the notice of withdrawal is being signed by the same Eligible Institution, and the signature(s) on any such irrevocable proxy must be guaranteed by an Eligible Institution unless the signatory to such proxy is an Eligible Institution.
Properly withdrawn Old Notes may be retendered by following the procedures described in this Letter of Transmittal and the Prospectus at any time prior to 5:00 p.m., New York City time, on the Expiration Date.
All questions as to the validity, form and eligibility (including time of receipt) of such notices of withdrawal and all other documents submitted and procedures followed in connection therewith will be determined by the Company in its sole and absolute discretion (which power may be delegated to the Exchange Agent), which determination shall be final and binding on all parties. Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer and no New Notes will be issued with respect thereto unless the Old Notes so withdrawn are validly retendered and not validly withdrawn and are accepted by us.
Any Old Notes that have been tendered for exchange but which are not exchanged for any reason (including, without limitation, because the tender of those Old Notes has been properly withdrawn, because the Company did not accept those Old Notes for exchange or terminated the Exchange Offer, or if the tendering holder properly indicates that only a portion of the Old Notes being tendered are to be exchanged for New Notes), such Old Notes will be returned to the holder thereof (or, in the case of Old Notes tendered by book-entry transfer, will be credited to the accounts at DTC of the applicable DTC participant), unless the holder completed the box entitled “Special Delivery Instructions” in this Letter of Transmittal, in which case such Old Notes will be returned to the person specified in such instructions, without cost to such holder, promptly after withdrawal of such Old Notes or expiration or termination of the Exchange Offer, as the case may be.
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10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus, this Letter of Transmittal and other related documents may be directed to the Exchange Agent at the address and telephone number indicated above.
11. TAXPAYER IDENTIFICATION NUMBER AND BACKUP WITHHOLDING.
Under U.S. federal income tax law, a tendering holder whose Old Notes are accepted for exchange may be subject to backup withholding. To prevent backup withholding, each tendering holder must provide such holder’s correct Taxpayer Identification Number (“TIN”), which, in the case of a holder who is an individual, is generally such holder’s social security number, by completing the enclosed Form W-9, “Request for Taxpayer Identification Number and Certification,” and generally must certify under penalties of perjury that (i) the TIN provided is correct (or that such holder is awaiting a TIN), and (ii) (a) the holder is exempt from backup withholding, (b) the holder has not been notified by the IRS that such holder is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified the holder that such holder is no longer subject to backup withholding, and (iii) the holder is a United States Holder. In addition, the holder must date and sign the Form W-9 as indicated. If the Exchange Agent is not provided with the correct TIN or a complete and executed Form W-9 evidencing a complete exemption from backup withholding by the time of the exchange, such holder may be subject to a $50 penalty imposed by the Internal Revenue Service and backup withholding at the applicable rate, 24% as of the date of the Prospectus, upon the amount of any reportable payments made after the exchange to such tendering holder. If withholding results in an overpayment of taxes, a refund may be obtained.
If a holder that is a United States Holder does not have a TIN, such holder should consult the enclosed Form W-9 instructions (the “W-9 Instructions”) for instructions on applying for a TIN, write “Applied For” in the space for the TIN, and sign and date the Form W-9. If the holder does not provide such holder’s TIN to the Exchange Agent by the time of payment, backup withholding will apply to payments made to such holder. Note: Writing “Applied For” on the form means that the holder has already applied for a TIN or that such holder intends to apply for one in the near future.
If the Old Notes are held in more than one name or are not in the name of the actual owner, consult the W-9 Instructions for information on which TIN to report.
Exempt holders (including, among others, all corporations and certain foreign persons) are not subject to these backup withholding and reporting requirements. To prevent possible erroneous backup withholding, an exempt holder that is a United States Holder should check the “Exempt payee” box on Form W-9. See the W-9 Instructions for additional instructions. In order for a holder that is not a United States Holder to qualify as exempt, such person must submit a completed Form W-8BEN, “Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals),” or Form W-8BEN-E, “Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities),” signed under penalty of perjury attesting to such exempt status. Special rules apply to foreign partnerships. In general, the foreign partnership will be required to provide a properly executed Form W-8IMY, “Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting,” and attach thereto an appropriate certification from each partner. Finally, if a holder that is not a United States Holder is engaged in a U.S. trade or business, and if interest on a New Note will be effectively connected with the conduct of such trade or business, such holder should provide a properly executed Form W-8ECI, “Certificate of Foreign Person’s Claim that Income is Effectively Connected with the Conduct of a Trade or Business in the United States.” To the extent applicable, the appropriate Form W-8 may be obtained from the Exchange Agent. Holders (including Holders that are not United States Holders) are urged to consult their tax advisors with respect to the tax treatment of the exchange of tendered Old Notes for New Notes pursuant to the Exchange Offer, and to consider the discussion under “U.S. Federal Income Tax Considerations” in the Prospectus.
For purposes of these instructions, a “United States Holder” means a beneficial owner of a note that, for U.S. federal income tax purposes, is (i) a citizen or an individual who is a resident of the United States, (ii) a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia, (iii) an estate the income of which is subject to U.S. federal income tax regardless of its source or (iv) a trust (x) with respect to which a court within the United States is able to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all of its substantial decisions or (y) that has in effect a valid election under applicable U.S. Treasury regulations to be treated as a U.S. person.
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| Fo<m W-9 R equest for Taxpayer Give Fonn to the !,'Rev. octODer 2018) Identification Number and certification requester. Do not Departmenl Cf the Tree.suy send to the IRS. JltEmal Rev«YJe S8Mce ► Goto www.irs.gov/FonnW9tor instructions and the latest information. 1 N a-ne (as snown on yoti" lnocme tax rectrn). Name is recJJlreo on tra 11ne: ao not ieave tnls 1 rie Clank.. 2 BLF.ffle5S name1c11 sregaroeo entity nwne. n omererrt trom aocwe .,; • 3 Chec:t( appropnale DOX ror 1 eoetS1 tax ctassmcatron Cf tne person wrose nane 1 s enleeeo en 1 rie 1 . Q'leCt( oniy one or tne 4 Exemptrons(cooes~iyor11to ~ f'OIOWlllQ SeYenDOXM • certain en lltles. not rie1Maua,s; ll88 • " '1StrUCtlons 00 page 3): C D 1 roaM~ ~ propffelor or D cco,po,- 0 S Corporatron 0 Partner8llp 0 T MVesta::e 0 .. srig•memt>er u. c E:nmpt payee cooeor a'IY) 11. . --- ~ti D umrteo 1at111 rtyoanpany. Etrt.er Irie taxciassmcatron(C..c oapcrauoo, s.s corpora:on, p ... ~ ) ►--- ~i Note: Olea( Ille apc:ropnate DOX ,n tne ane aoc,,,e fOf tne tax claSSlllc8tlon or tne SlllQIIHl'!Efntlef 0'Aner. Do noc en~ EXemptlcWl rom F'.AT CA reportlrg I! C LLC n tne UC IS CI~ asa Slr'Q~ «ntl« UC Nt l:S<l!St~eCI aom tne O\\net Lllle5S h Owr« Of tne UC t$ oooe praiy, ~- anotnet LLC tnat is not a1Stegaroeo iron, tne O'Aner1 or u.s. rean tax pt.rp05e9. ocner11_se, a 9rl!1@-memt>er u. c Illa: .. u IS d~tr omtneO'M'lef"ShCUCI CheCktne~a:.eDOXtortnetaxctas ~ orrtsowner . ,. §. □ Otr'Ef ('See lnstn.ctlcWl~ ► ,..,,_,,._ ....... ......, ......... !lS.) "' 5 Aoaree.s(r1.1rroec. street. ano apt. or ute no.)seemtruc11ons. Requestn name ano 8Cl<lress (opllorw) ; "' 6 City, sta:e, at'll ZJPcooe 7 US1 acooun l'l.lmDE!r($ ) nere (O pt!CW'lal) -· Taxpayer Identification Number (TIN) 1 soe1a1 secunty numoer I Enter you~ TIN in.the app . ro~~e box. ~'.8 TIN provided mus t.match t ':1e name giv en on line 110 avoid backup withholding. FOJ ind1 viduals, this is generally your social secuJty number (SSN). However, tor a residen t alien, sole proprietor, Of Orsregarded entity, see the iinsaruclions for Part I, later. For other entities. it is your empbyer identificalioo number (El~ . If you do not bav e a number. see How to get a TIN, later. [II] -[I] - I I I I I or Note:: ff the 8CCOU"Jt is in more than one nsrne. see the instructions for line 1. Also see What Name and Number To Give the F«Jqvester for guidelines on whose number to enter. I Employer ldenttncatlon numoer Certification Lhder penalties of perjury. I certify that: 1. The number shO\W'I on this form is my correct taxpayer idootificatiooi nunber (or I am waiting tor a nunber to be issued t o me): and 2.1 am no1 subject 1 0 backup withholding because: {a) I am exemp1 from backup v.ithholdilg. or (b) I have no1 been nocified by the rntemal Rev en1.e Service -ORS) that I am subject to backup withhokting as a result ofa tailur e to repon all interest or dividends., Of {c) the &RS has notified me that I am no longer subject to backup wi!N1oldilg; and 3.1 am a U.S. citizen or other U.S. person (defi ned below,: erid 4. The FATCA code(s) entered on this form (if any) incfica1ing lhal I ar. exempl from FATCA repott:ng is correct. Certification instructions. You must cross out item 2 above if you have been notified by lhe (RS that you are CUITently SLbject to backt.p withholding because you have failed torepat all rderest and dividends on your tax retum. Fos rea1 esta1e transactions, item 2 does no! apply. For mortgage i-rterest paid, acquisition or abandonment of secured property, caroellation of debt. contributions to an individual retiremenl arrangement ORA}. and _gen«ally, payments other than int!.Ye5 1 and dividends, you are n01 required to sign lhe ceri:ification, bul you musl provide ycu carecl Tlfil. See the mtruct10ns for Part ll, lat et. Sign Here I Signature OI U.S. person ► General Instructions Section references are to the Internal Revenue Code unless otherwiS>l notoo. Fl.lhKe developments. For the lates1 intonnalion about developments rela':ed to Form W-9 and its instructions. such as legislation enac1ed after they were published. go to www.irs.gov /FonnW'9. Purpose of Form An individual Of en tity (Fonn W-9 requester) \\ho is requ:i'ed to file an infonnation retum with the IRS must obtain your correct taxpayer identificalion number (rlN) which may be your social s.ectXity numbec (SSN). individual taxpayer identifica tion rumber {ITIN}. adoption taxpayer identification rumber (A TIN). or employer identif ication num:ier (E&N). to repon on an inf ormation return the emoun1 paid to you, or ol1er amoun.t reportable on an infonna1ion retum. Examples of information returns include, but are noc limited to. the foDowing. • Form 1099-INT (intere~ earned or paid} cat. NO. 102:31'.< Date ► • Fonn 1099-0 IV (dividends, inauding those from stocks or mutual fl.J"lds) • Fonn 1099-MJSC (vSl'ious types of income, prizes, awards, Of g-o» p<ooHds ) • Fonn 1099-8 (stock or mutual fund sales and certain other trerisac1ions by br okers) • Fonn 1099-S {proceeds from real es&ate transactions) • Fonn 1099-K (mercharu card erid third party network transactions) • Fonn 1098 Q1ome mortgage interest). 1098-E (studen.t loan intere&t). 1 ooerr (tuition ) • Fonn 1099-C (canceled debt ) • Form 1099- A (acquisition or absndonment of secur ed property ) Use Form W-9 only ii you are a U.S. person (ll"lciuding a resident alien). to P"Ovide y<:M correct TIN. H you do not rel.Urn Form W-9 to the requester with a TIN. you m~t be subject to backup withhola' Jf19. See \~ t is backup withholdi"lg. Ja.rer . F"orm W-9 {Rev . 10-2016)
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| By sigling the filled-out fonn. you: 1. Certify th81 the TIN you are giving is carec1 (or you are waitng foe' a number 10 be issued}. 2. Certify th81 you are no1 subject 1 0 backup withholding. or 3. Claim exemption frcm backup withholdi"lg if you are a U.S. exempt payee. ff applicable, you are also certifying lh81 as a U.S. person, your allocable shar e of any partnership income from a U.S. trade or business is not subj ect to the wi:hholding lax on foreign partners' share of effeaively connected inoome. and 4. Certify that F ATCA code(s) entered on this form (d any) indicatng that you are exempt from the FATCA reporting. is oorrect. See What is FA TCA reportjng. la ter. foe' funher information. Note:: ff you are a U.S. person and a requester gives you a fonn OCher than Form W-9 to request your TIN, you must use the requester's fonn it i1 is Wbstantialty similar to this Form W-9. Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are: • An individual v.tiO is a U.S. citizen or U.S. resident alien: • A pennership, oorporation, company. or association created or organized in the United Sca~es or under lhe laws of the United States.; • An estrue (other than a toreigl estate): or • A domestic in.m (as defi ned in Regulations section 301. 7701-7). Special rules for partn,e.rshjps. Partnerships that oonduct a trade Of business in the United Scates are generally required to pay a withholding tax under sec6on 1446 on any foreign partners' share of effectively connected 1 axabJe incane from such business. Further , in certan cases where a Form W- 9 has not been received. the rules oocler section 1446 require a pennership 1 0 presume that a partner is a fOfeign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a 1 rade °' busnes8 in the l.hited Stat es., provide Fonn W-9 to lhe partnership 1 0 establish your U.S. status and avoid section 1446 withholdng on yoot shar e of partnership inoome. .-. lhe cases below, the follov.ing person musa give Fonn W-9 to the partnership fOf pwposes of establishng its U.S. status end avoiding withholding on ils allocable share of net income from lhe pennership conducting a trade°' busness in the United Slates. • .-. me case of a disregarded entity with a U.S. owner , the U.S. owner of the d' rsregarded entity and not me entity; • .-. me case of a grantor 1 rust with a U.S. grantOf °' other U.S. owner, generally, 1 he U.S. gantor« other U.S. owner of thegrantor trust and not the ~ and • .-. me case of a U.S.1rust (ocher than a gran tOf 1 rust}. the U.S.1rust (other 1 han a grant or trust) and not the beneficiaries of the trust. Foreign person. If you area foreigl person°' me U.S. b'anch of a foreigl bank that has elected to be lreated as a U.S. person, do not use Fonn W-9. Instead, use me appropriate FOfm W-8 or Fonn 8233 (see Pub. S1S, Withholding of Tax on Nonresident Aliens and Foreign Entities). Nonresident alten who becomes a resident alien. Generally, onty a nawesident arien individual may use the 1 enns of a 1 ax treaty to reduce or eliminate U.S. tax on certain types of incane. However, most tax treaties contain a provision known as a "saving clause.• Exceptions specified in the saving clause may permit an exemption from tax to continue for certan 1ypes of income even after 1 he payee has otherwise become a U.S. resident alien for tax purposes. If you are a U.S. resident af ien who is retying on an exception contained in me saving clause of a lax treety to claim an exempcion from U.S. tax on cena,n types of inoome, you must anach a statement 1 0 Fonn W-9 that specifies the following five items. 1. The tre..-y country. Generally, this must be the same 1 reary under which you cJained exempcion from tax as a nonresident alien. 2. The treay article addressing the income. 3. The articJe number (or location) in the 1 ax treaty that contains the saving clause and its exceptions. ~~type and amount of inoome lh8I qualifies for the exemption S. Sufficien1 facss to justify the exempcion from tax under me terms of the trea ty articJe. Page 2 Example. Article 20 of the U.S.-OW'la inoome tax lreaty allows an exemption from 1 ax fOf scholarship incane received by a Chinese a udent temporarily present in the United States.. Under U.S. Jaw, this a udent wil beoome a resident alien for tax pu'l)OSes ii his or her stay in the United States exceeds S calendar years.. However, peragaph 2 of the first Protocol to the U.S. 4 China treaty (da ted April 30, 1984) allows the provisions of ArticJe 20 to continue to apply even after the Ctmese a udent becomes a resident alien of the United States.. A OW'lese a udent \\ho qualifies for this exception (under paragraph 2 of lhe first protocol) and is retying on this exception 1 0 claim an exempcion from tax on his°' her scholarship or fellowship inoome WOUid attach 1 0 Fonn W-9 a statemen1 that includes 1 he information described aboYe 1 0 &Jpport lh81 exemption. If you are a nonresident af ien Of a foreign entity, give the requester lhe appropriate completed Form W-l!> °' Form 8233. Bacl<up Witllholding What is backup withholding? Persons making certain payments to you mua under certain oond' ll:ions withhold end pay to me IRS 24% of such paymeots. This is called "backup wi!N1oldi"lg. • Payments lh8I may be &Jbject to backup wi!N1oldi"lg inaude interest, tax-exempt interest, dividends, broker and barter exd\ange transaclioos, rents. royalties, nonemployee pay, payments made in senlemenl of payment card and lhird party network 1 ransactions, and certain paymeots from fishing boat operat ors.. Real estate 1 ransactions are noc &Jbject 1 0 backup withholding. You will noc be subject to backup withholding on pa-;ments you receive if you give 1 he requester yoot correct TIN, make the proper certifca1ions., and report all yoot 1 axable interest and dividends on your tax return. Payments you receive wiJI be subject to backup withholding if: 1. You do not furnish your TIN to 1 herequester, 2. You do not certify your TIN when required (see the instruc1ioos for Pert II fOf details ), 3. The IRS tells the reqooster that you hxnished an inoorrect TIN, 4. The IRS tells you that you are &Jbject 1 0 backup wi!N1oldi"lg because you did not repon an your interest and dividends on yoot 1 ax return {for reportable interest and dividends only), or S. You do not certify 1 0 the requester lh8I you are noc subject 1 0 backup withholding under 4 above por reportable interest and dividend aooounts opened after 1983 only). Certail PS'fOOS and payments are exempl from backup withholdi"lg. See Exempt payee code , later, and lhe sepsrate hsll\JClioos for the Requester of Form W- 9 for more f'Jformation. Also see Special rules for partnerships, earlier. What Is FATCA Reporting? The Foreigl Accou,t Tax Compli ance Act (FATCA)requiresa penicipatng foreign financial institution to report all United Scates aoooun1 holders that are specified United Sca~es persons.. Cer&ain payees are exempt from F AT CA reporting. See Exemption frrm FATCA reporting code , laer, and the hslruc1ioos for the Requester of Form W-9 fOf mOfe information. Updating Your Information You ITll.m provide updated information 1 0 any person 1 0 whom you claimed to be an exempt payee if you are no longer an exempt payee erid anticipate receiving reponable payments in the M ure from this person. For example, you ma y need to provide updated f'Jformation if you are a C oorporation that elects 1 0 be an S corporation, or if you no longer are tax exempt. In addition., you must furnish a new Form W-9 if lhe name or TIN changes for the accou,t; for example, if the grant or of a granlOf trust dies. Penalties Failure to furnish TIN. If you tail to fumish your correct TIN to a requester, you are subj ect to a penalty of $SO for each such faiue unless your failure is due 1 0 reasonabJe cause and not 1 0 willful neglect. Civil penalty for false infonnation with respect to withholding, If you make a false statement with no reasonable basis that resutts in no backup withholding, you are subject to a SSO0 penalty.
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| Form W4(Rev. 1~20 18) Criminal penalty for falsifying information. Willfully falsifying certifications Of aff .rma6ons may subjecl you to criminal penalties including f.nes and/or imprisonment. Misuse of TINs. If the requester discJoses or uses TINs in violation of federal law, the requester may be subjecl to civil and criminal penalties. Specific Instructions Line 1 You must enter one of the follolNing oo this Jne: do not leave this line blank. The nan-.e should match the name on ycAX tax return. ff this Form w .9 is for a joint account (other than an accoun.t maintained by a foreigl financial institution {FFO ), list first. and then circle, the name of the person or entity \\hose number you entered in Pan I of FOfm W•9. If you are providing Form w .910 an FA 1 0 doc:umoot a joint aooount, each holder a the account th81 is a U.S. person m,sa P"Ovide a Fonn W•9. a. Individual. Generslty, enter the name shO'YITI oo your tax retum. If you have changed your last name without inf OfrTif'lg the Social Security Adminislra!ion (SSA) of the nan-.e change, enter your f.-sa nsrne, the last name as shovm oo your social security card, and your new last name. Note:: ITIN applicant Enter Y04X individual name as it was entered on your Fonn w.7 app]ication, line 1a. This should also be the same as the name you en tered oo dle Fom, 1040/H)40A/1040EZ you filed with your application. b. Sole proprietor or single•member UC. En.ter your individual name asshovm oo your 1~ 0/1040A/1040EZ on Jne 1. Y ou may enter your business, trade, or "dong business as " {OBA) name oo li ne 2. c. Partnership, UC that is not a singl~member UC, C corporation. , or S corporation. Enter the en tity's nan-.e as shown on the entity's tax rehm oo lne 1 and any business, trade,°' OBA nan-.e on li ne 2. d. Other entities. Enter your name as shown on requi'ed U.S. federal lax documents on Jne 1. This name should match the name shown on the charter or other legal document creating the eniity. You may enter eny business, trade, or O BA name on li ne 2. e. Disregarded entity. For U.S. federal tax purposes., an entity dl81 is O rsregarded as an entity separate fr om its owner is treated as a "disregarded entity." See Regula1ions sec1ioo 301.n o1.2(c)C2)(i:). Enter dleowner's name oo li ne 1. The name of the entity entered on line 1 should never be a O rsregarded entity. The nsrne on li ne 1 shoUld be the name shovm oo the income tax retum on v.tiich the income should be reported. For example, if a fOfeign LLC dl81 is treated as a disregarded entity for U.S. federal tax pwposes has a &ngleownerthat is a U.S. pe('SOO, the U.S. owner's name is required 1 0 be provided on line 1. 11 dle direct owner of the eotity is also a disregarded entity, enter the fna a,;ner dlat is no1 disregarded fOf federal tax purposes. Enter the O rsregarded entity's name on line 2, "Business nsme/disregarded entity name." If the owner of the disregarded en tity is a foreigl person, the a,;ner must complete an appropriate Fonn w .a instead of a Fom, W-9. This is the case even rf the foreign person has a U.S. TIN. Line 2 ff you have a busines5 name. trade name, OBA nan-.e. or disregarded entity name, you may enter it on line 2. Line 3 Oieck the apP"Opriate box on line 3 fOf the U.S. federal tax classification of the pe('SOO whose name is entered oo line 1. Check ooty one box oo li ne 3. IF the entity/pe,rson on line 1 is a(n} •• . THEN check the box for . •• . Corporation Corporation . Individual Individual/sole proprietor or single• . Sole proprietorship, or member LLC . Single-member wnited liability company (LI.C) °"""" by an individual and disregarded fOf U.S. federal tax pu-poses. • U C treated as a pannership for U.S. federal lax purposes, Limited liability company and enter the 8PP'Opria';e tax d assification. • U C 0181 has filed Fonn 8832 or (P= Pannership; C= C oorporation; 2553 10 be taxed as a cotp01'81ioo, or S= S cotp0ration ) a • U C 0181 is disregarded as an entity separate from ics owner but dle owner is anolher U C 0181 is not disregarded for U.S. federal tax pu-poses. • Partnership Pertnership • Trust/estate Trust/estate Line 4, Exemptions 11 you are exempt from backup withhokling and/or F ATCA reporting, enter in dle appropriate space oo line 4 eny code(s) that may apply 1 0 you. Exempt payee code. • Geoeralty. individuals (lnclUO n g soJe P"Oprietors) are no1 exempt fr om backup withhokting. • Excepc as provided below, oorporations are exempt from backup withholding for certain payments, includi"lg interesi and dividends. • Cotporations are not exempc from backup withhola n g for payments made in settlement of pa~ card Of dlird party network transactions. • Cotporations are not exempc from backup withhola n g with respect to attorneys' fees°' g-oss proceeds paid 1 0 attomeys. and corporations that provide medical or health care services are not exempt with respect to payments reportable oo Form 1099..MISC. The following codes ideotify payees that are exempt from backup withholding. Enter the appropriate code in the space in li ne 4. 1-An organization exempt from tax under section 501(8), any IRA. or a custOO ial 8CCOU'lt under section 403(b)(7} if the account 681isfies the requiremen. ts of section 401(f){2) 2 - The lki ited Stal:es « any of ics ageocies or instn.r ne nt a[ities 3 -A state, the District of Columbia., a U.S. commonwealth or possession, or any of thei r political subdivisions or instrumentafllies 4-A fOfeign govemmoot Of any of its political subdivisions, agencies, or instnr nenta[ities 5-A corporation 6-A dealer in securities or commoarties requ:i'ed to regisler in the lki ited States, the District a Columbia.,°' a U.S. commonwealth or possession 7 -A futures conmission merchsrit regislered with the Commodity Futures Trading Commission 8-A real estate invesiment trusl 9 -An entity registered at all tines duri ng the tax 'feal under the lnvestmeni Company A.Cf: of 1940 10-A common trust fund operated by a bank under section 584(8) 11 -A f.nanc:ial institution 12-A middleman kna,;n in the investment community as a na"ri nee or custodian 13-A trust exempt from tax under section 664 or described in section 4947
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| The followng chart shows types of pa yments that may be exempt from backup withholding. The chan applies to the exempc payees listed above, 1 through 13 IF the payment is for. lrcerest and dividend payments B'Oker transactions Saner exchange uansactions and puronage dividends THEN the payment is exempt for . . . AH exempt payees excep1 fo,7 Exempt payees 1 througl 4 and 6 thrc>Ugl 11 and all C corporations.. S corporations must not enter an exempt payee code because they are exempt only f OJ sales oC noncovered securities acqui'ed prior 1 0 201 2. Exempt payees 1 thrc>Ugl 4 Payments over S600 requi'ed to be Generally. exen,pt payees rEpotted and direct sales over 1 ttwougi 51 ss. 0001 Payments made in settlement of Exempt payees 1 thrc>Ugl 4 payment card Of 1 hird party network transactions 1 See Fonn 1099-MlSC. Miscebsrieous Income, and its instrucCioos.. 2 However. the following payments made to a corporation and ,e,ponable on Form 1099-M ISC are not exempt from backup withholding: medical and health care paymeot:S-, anomeys' fees., goss proceeds paid 1 0 an attomey reportable under section 604S(1). end payments foe' services paid by a federal executive agency. E< emPUOn from FATCA reoortino code. The followino codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this fonn tor aooounts maintained outside ol the lklited Sta tes by certain foreign f.nsncial insaitutioos.. Therefore, if you are only submittng this form for an aooount you hokl in the lklited Sa t es., you may leave this field blank. Consult with the person requesting this form if you are uncertain it the f.nancial insaitution is subject to these requirements. A requesier may indicate that a code is no1 r~~ir~ by ??vicliOQ you with.a Fonn w.g with "NOi Applicable" (or any S1md ar f1dication) wnnen or pnnted on the line foe' a F ATCA exemption code. A-An organization exempt from tax under seccion S01{a ) or any in::fividual recirement plan as defined in section n o1(a)(37) 8-The United Sca~es or any of its agencies or insarumentalities C-A Slate, the District of Columbia, a U.S. commonwealth or posses.sion, or any of < heir political subdivisioos or instrumeotafllies 0-A corpora1ion the stock of v.tiic:h isregulatfy b'8ded on one or rrore es&abfrshed securities markets, as described in Regulations s«:1ion 1.1472•1{cK1 }(1} E -A corporation that is a member of the same e.xpanded affiliated group as a corporation described in Regulations seaion 1 .14 72• 1 {cK1 }(i} F-A dealer in securities, convnodities, or derivative f.nancial ir&t:n.Jneots (Including nc:ciooal principal contracts, futures, forwards, and options) that is regisaered as such under the laws of the lklited Sa t es. or any stal:e G-A real estate investment trust H-A regulated invesament oompany as def.ned in section 851 or an entity registered at all times duri"lg the tax year ooder the tlvestment O:,mpany Ace of 1940 1-A convnon 1 rust fund as def.ned in seccion S84(a ) J-A bank as defined in seccion 581 K-Abroker L-A trust exemp1 from tax under seccion 664 or described in section 4947(a)(1) Page 4 M-A tax exen,pt trust ooder a section 403(b) plan or secton 457(9) plan Note: You may wish to consult with the financial institution requesting this form 1 0 determine whe:tier the FATCA code and/or exenpt payee oode should be completed. Line 5 E nter your address ~ mber, street. and apenment or suite rumber). This is v.here the requester of this Fam W-9 will mail your in'onnation retixns. If this address d' rffers from the ooe the requester U&ady has on file, write NEW 81 lhe top. If a new address is provided. there is still a chance~ ol<:S address will be used until the payor changes your address ,n their reoords. Line 6 E nter your city, state, and ZIP code. Part I. Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. If you are a residentafien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification romber -OTIN}. Enter it in thf social security m.m ber box. If you do n01 have an ITTN, see How to get a TIN below. 11 you are a sole proprietor and you have an EIN, you may enter either ycuSSNorEIN. 11 you are a single-member LLC that is disregarded as an rotity separate from its owner , enter lhe owner's SSN (or EIN, if the owner has one). Do n01 eoter the disregarded eotity's EIN. 11 the LLC is dassified as a corpora1ion or partnership, enter the entity's EIN. Note: See Wha.r Name and Number To Gve rhe Requester, li ter, for further clarification oC name and TIN comtwlations. How to ge t a TIN. If you do not have a TIN, apply for one inmediately. To app,y ror an SSN, get Form ss.s. Appncauon 1 or a SOc:talsecun:ry Card, from your local SSA office or get this fonn onJne 81 w.vw.SSA.gov. You may also get this form by c.allng 1.80().772.1213. Use Form w. 7, Application for IRS Individual Tax.payer ldent fication Number, to apply for an ITIN, or Form SS..t, Application for E mployer Identification ~ mber, 1 0 apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/Bus.inesses· end clicking on Employer ldeotification Number (EIN) under Slaniig a Business. Go to w.vw.irs..gov/Fotms· to viE'N, dolNnload, or print Form W•7 and/or Fonn SS..t. Or, you can go towww .irs..gov/Ordt:tForms to place an order and have Fonn w.7 erid/or SS-4 mai.led to yru within 10 business days.. 11 you are asked to oomplete Fonn w.g but do not have a TIN, apply for a TIN and ...,..ite "Applied For" in the space for the TIN, sicn and date the form, and give it 1 0 the requester. For interest and divicle - nd payments. and certain payments made with roopea to readi~ tradable insarumenta, generally you win have 60 days 1 0 get a TIN and giv e it 1 0 the reqoosaer before you are subject to backup withhold' n g on payments. The 60-day rule does not apply 1 0 other types oC payments.. Y ou wiU be subjecl to backup withhdding on all such payments until you provide ycu TIN 1 0 the requester. Note: E ntering •Applied For" means that you have already applied for a TIN or thal you intend to apply for one soon. Caution: A disregarded U.S. entity that has a foreigl owner must use the appropriate Form w..a. Part II. Certification To esaabli sh to the wilhholding agent that you are a U.S. peoon, or resideot alien:., sigl Form W-9. You may be requested to sign by the withhold'ng agent even if item 1, 4, or 5 below indiaues othewise. For a joint account, only the person whose TIN is shown fl Pan I shoUld sign (when required}. .-. the case of a disregarded entity, the person identified on line 1 must sig,. Exempt payees, see &smpt payee code, earlier. Signature requiremeots. Complete the certification as indicated in it~ 1 through 5 below.
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| 1. Interest, dividend. and barter exchange accounts opened before 1984 and broke,,- accounts considered active during 1983. You must gve ycu correct TIN, but you do not have to sign the certification. 2. Interest, dividend. broker, and barter ex change accounts opened aft:e,r 1983 and broker accounts considered inactive during 1963. You rnusi sig H he certification or backup withholding will apply . If you are subjea to backup withholding and you are merely prcwiding your correct TIN to the requester, you musa cross out item 2 in the certification before sigling lhe torm. 3. Real estate transactions. You m.J~ sigl the certif,c.ation. You may cross out item 2 of the cenification. 4. Other payments. You must gve yr:u correct TIN, but you do not ha ve 10 sign the certification unless yoo have been nocified lhat you tun ,.,. rm .,M 1j;,ly oiv,:,n l'ln inO"ll"ll'f'tOIN TIN "0.tv>r p:aym.,,nt K inr:lt ,tvo payments made in the ccuse of the requester's trade or business for ren1 s, royalties, goods (other 1 han bi11 s for merchandise), medical and health care seMCeS (including pe ymeots to oorpaations). paymen1 s 1 0 a nonemp)oyee for services, payments made in settlemenl of paymenl card and third party network transacciooS-, payments 1 0 cenain fishing boat crew members and fishermen. and gross proceeds paid 10 attorneys [nciuding payments 1 0 corpora1ioos ). S. Mortgage interest paid by you. acquisition or abandonment of secured property, canceOation of debt, qualified tuition program payments (under wc6on 529), ABLE accounts (t.rider section 529A). IRA, Cove<dell ESA. Archef" MSA or HSA contributions or cistributions. and pension distributions. You musa give your correc1 TIN. but you do not have to sign the certificalion. What Name and Number To Give the Requester For this type of account 1. lr.:IMO!Jal 2.. Two« l1'ICX8 r'JCIM(luaJS !jCfnt aocotlTIJ ou.. tnan an ac:00U'l manta nea Dy an ~R Give name and SSN ot. Tne lr.:IMO!Jal Tne actual OWf'8' or tne acoo1.11t or. n oom01reo nn::,s, tne nrst lf'CNCluaJ on tne ac:oounl 1 3. Two ex mcxe u.s. pnons E ac:n noiaec or tne acoo1.111 OOlnl aocotrrt ma1rta1neo D)' an m) 4. 0isr.oa1a1 aocotm or a minor Tne m1 no? (Urcorm Gm IO W1Cn ,tel) s. a. tne uSUil teYocaDIE! saw,gs lrUs1 Tne g"artcr-uustee1 (grartcr Is al90 trustee) D. so-calleo trus1 acoo1.111 tnat 1 s no1 me actual 0Wf'8'1 a legal ex '4ICI trust t.n0er stale iaw 6. SCte proprte!Mfllp or <11 sregaroeo Tne <Mr«' entity O'la're.1 oy an r'ICIMc:luaJ 7. Granto, trust llllr"9 L110Er Opttonal Tne g'artCr' ~ 1099 Ring MetnO<I 1 (gee Re!1J!a:orts section 1.671~(b)(2)(1) !I'l l For this type of account Give name and EIN of: a asregaroea enmy no1 o-,..reo oy an me <Mre: lr.:IMO!Jal 9. A '4ICI trust. e5ta:e. or penSIOn trust Legal Ef'lllty ◄ 10. C0rporatlon or uc eiecmg Tne oorporattOn corpora::e starus on ~ ea.32 or ,o,m2553 11. Associatron. CILO. re1g10uS. Tne crganrzallon cnantatlle. ee1uca.10na1. or otner laX· exempl or:gan1Zal1on 12. Partnersttp or m~ LLC ll>e partne<s/Vp 13. A DrOltef or regtslffllcl non1f'lee Tne DrOk« or nominee Page b For this type of account Give name and EIN of: 14. Ac:oounl 'Attn me DepartrnM1 ot Agl'ICl..thn In tne n.rne Of a puDIIC erv:tty (gUCh as a sta:.e or IOCaJ goverrmoot. scnooi atst11et. or p11SCl'I) tnal fecelYe6 aglCIJ.tlnl program P8)Tl'IMIS 15. Gr.rrt« trust ftlllQ U'IOOC tne Rm! 1041 Rrrg Mil!U'OCI or the Opllor\;II ~ 1099 1=11 1'19 thl!tf'IOCl2 (9E!e ~sectroo 1.671·4{tl}(21(1)( Blt me pua1 c entrty ll>e llUS< 1 Lisi firsa and circle the name of the person \\hose number you fumish. If only one person on a joint account has an SSN. that person's nunber musl be hmished. 'Circle lhe minor's name and fumish the minor's SSN. ~ You m.Jst show your individual name and you may also enter your business or OBA name on the "Business name/disregarded entity• name li ne. You may use either your SSN or EIN (rfyou have one ). bU1 lhe IRS encourages you to use your SSN. ~ Lisi firsa and circle the name of the trust. estate. or pension trust. {Do OOI furnish the TIN of the personal representative or trustee unless the legal entity itself is no1 designa~ed in the 8CCOU"'II title.) Also see Special rules· for partne rships, earfier. •Note: The grantor also must provide a Form W- 910 trustee of trust. Note: If no name is circled when more lhan one name is listed, the number will be oonsidered to be lhat of the first name listed. Secure Your Tax Records From Identity Theft Identity theft occurs v.hen someone uses your personal infonnation such as your name. SSN, or other identifying information, without your permission, to oommit fraud or other crimes. An identity thief may use ycu SSN to get a job or may file a tax retum usng your SSN 10 receive a refund. To reduce your risk: • Protect your SSN. • Ensure your employer is proteccing your SSN. and • Be carefuJ when choosing a tax preparer. If ycu lax reoiYds are affected by identity theft and you receive a notice from the IRS, respond rig'lt away to lhe name and phone runber pri nted on « he IRS notice or letter. If ycu tax reoiYds are not curr ently affected by identity lheft but you think you are at risk due to a losl or saolen pwse or wallet. questionable «edit card activity or cred' rt report, con. tacl the &RS Identity Theft Hotline at 1-800-908-4490 or 61.J bmit Form 14039. For more infonnation., see Pub. 5027. Identity Theft Information for Taxpayers.. VIC't:i'm of identity lheft who are e.xperieocing eoonofric harm « a systemic problem. or are seeking help in resolving tax problems that have no1 been resolved through normal channels. may be eligible tor Taxpayer Advocate Service (r AS) assistance. You can reach TAS by caffing the TAS 1 oH-free case intake Irie at 1-an -m -4n a or lTY /fOD 1-SX>-829-4059. Protect yOtrSe-lf from suspicious emai1s or phjshing schemes. Phishng is the creeiion and use of email and websites designed 10 nwnic legitima~e business emails and websites. The mosa oommon act is sending an emai 10 a user falsely claiming 10 be an es&abfrshed legitimate enterprise in an anempc to scam the user into surrendering private information lh8J will be used tor identity theft
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| The IRS does not initim:e oontacts with taxpayers via emails.. Also, lhe inc doe& not req~ pcr,,onol decailod infomiotion through ~ or a:i.k taxpayers for the PIN rombers, passwords, Of srnilar . secret access intonnation for the• creart card. bank. Of other financial aooounts. If yoo receive an unsolicited email claimf'lg to be from the IRS, . forward this message 10 phishing@jrs.gov . You may also report misuse oC the IRS name, logo, °' other IRS property to the Treasury Inspector General fof Tax Administration (TIGT ~ 81 1-8()().366-4484. You csn forward suspicious emails to lhe Federal Tracie Coomission at spam@uc,e ➔gov or report them at www .hc.gov /oomplaint You can con1ac1 the FTC at www .hc .gov/idtheft or 877-IOTHE FT (877-4384338 ). If you ha ve been the victm oC identity lheft, see wwwJdemiryTheft.gov and Pub. 5027. Visit www.irs.gov/ldemiryTheft to learn more about identity theft and how to reduce your risk. Page 6 Privacy Act Notice Section 6109 of lhe Internal Revenue Code requires you to provide your oorrec1 TIN to persons (111ciuding federal agencies) vmo are required to file infonnation returns with the IRS to report interest, dividends, or oertan other incane paid toy~ mortgage intere~ yoo paid; t.t1e aoquisition or abandonment of secured property: the cancellation of debt: or oontributions you made to an IRA. Archer MSA. or HSA.. The person collecting this torm uses the inf?"'191ion on•~ form I? file inf ormation retums with the IRS, reporting the above infonnabon. Routne uses of this information include giving it to the Departmeot of .bsaice for civil and a iminal flligation and to cities.. states, < he ~rict of Columbia, and U.S. commonwealths and possessions tor use in administering their laws.. The information also may f?e disclosed to ~~er oountries oocler a 1reary. to federal and state~ to ~oroe CNd end criminal laws, CK 10 federal law enforcement end 1 ntelhgenoe agencies 10 combat terrorism. You must provide YCfO' TIN whether or no1 you are requ:i'ed to file aw recum. Under secnon 3406, payers mua generally withhold a percentage of taxable in!erest. dividend, and certail other payments 10 a payee who does noc gNe a TIN to the payer. Certain penalties may also apply tor providing false or fraoclulent information.
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Exhibit 99.2
JACKSON FINANCIAL INC.
OFFER TO EXCHANGE
$600,000,000 aggregate
principal amount of its 1.125% Senior Notes due 2023 that have been
registered under the Securities Act of 1933 (the “New 2023 Notes”)
for any and all of its
outstanding 1.125% Senior Notes due 2023 (the “Old 2023 Notes”)
$500,000,000 aggregate
principal amount of its 3.125% Senior Notes due 2031 that have been
registered under the Securities Act of 1933 (the “New 2031 Notes”)
for any and all of its
outstanding 3.125% Senior Notes due 2031 (the “Old 2031 Notes”)
$500,000,000 aggregate
principal amount of its 4.000% Senior Notes due 2051 that have been
registered under the Securities Act of 1933 (the “New 2051 Notes”
and, together with the New
2023 Notes and the New 2031 Notes, the “New Notes”) for any and all of its outstanding 4.000%
Senior
Notes due 2051 (the “Old 2051 Notes” and, together with the Old 2023 Notes and the Old
2031 Notes, the “Old Notes”)
Pursuant to Prospectus dated , 2022
, 2022
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Jackson Financial Inc., a Delaware corporation (the “Company”), is offering, upon the terms and subject to the conditions set forth in the prospectus dated , 2022 (the “Prospectus”) and the enclosed letter of transmittal (the “Letter of Transmittal”), to exchange (the “Exchange Offer”) up to $600,000,000 aggregate principal amount of 1.125% Senior Notes due 2023, up to $500,000,000 aggregate principal amount of 3.125% Senior Notes due 2031 and up to $500,000,000 aggregate principal amount of 4.000% Senior Notes due 2051, which have been registered under the Securities Act of 1933, as amended, in each case in exchange for a like aggregate principal amount of Old Notes of the corresponding series. The Exchange Offer is being made in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement dated November 23, 2021 between the Company and the representatives of the initial purchasers of the Old Notes referred to therein. Capitalized terms not defined herein shall have the respective meanings ascribed to them in the Prospectus and the Letter of Transmittal.
We are requesting that you contact your clients for whom you hold Old Notes regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Old Notes or who hold Old Notes registered in their own names, we are enclosing the following documents:
| 1. | Prospectus dated , 2022; |
| 2. | The Letter of Transmittal for your use and for the information of your clients; and |
| 3. | A form of letter which may be sent to your clients for whose account you hold Old Notes, with space provided for obtaining such clients’ instructions with regard to the Exchange Offer. |
Your prompt action is requested. The Exchange Offer will expire at 5:00 p.m., New York City time, on , 2022, unless extended by the Company (the “Expiration Date”). Any Old Notes tendered pursuant to the Exchange Offer may be withdrawn (subject to compliance with the procedures set forth in the Prospectus and the Letter of Transmittal) no later than 5:00 p.m., New York City time, on the Expiration Date.
To participate in the Exchange Offer, you must deliver to The Bank of New York Mellon, as exchange agent (the “Exchange Agent”) for the Exchange Offer, prior to 5:00 p.m., New York City Time, on the Expiration Date (a) either a properly completed and duly executed Letter of Transmittal with any required signatures guarantees or a computer-generated message transmitted by The Depository Trust Company (“DTC”) to and received by the Exchange Agent and forming a part of the Book-Entry Confirmation (as defined below) stating that the holder of the Old Notes acknowledges and agrees to be bound by the terms of the Letter of Transmittal, (b) certificates evidencing the Old Notes you are tendering in the Exchange Offer or an electronic confirmation from DTC of the book-entry transfer of the Old Notes you are tendering into the Exchange Agent’s account at DTC (a “Book-Entry Confirmation”), and (c) all other required documentation, all in accordance with the instructions and procedures set forth in the Prospectus and Letter of Transmittal.
The Company will not pay any discounts, fees or commissions, or make any other payments, to brokers, dealers or other persons for soliciting the exchange of Old Notes pursuant to the Exchange Offer. The Company will pay all transfer taxes incident to the transfer of Old Notes by the holder to the Company pursuant to the Exchange Offer, except as otherwise set forth in Instruction 5 of the Letter of Transmittal.
Any inquiry you may have with respect to the Exchange Offer, or requests for additional copies of the enclosed materials, should be directed to The Bank of New York Mellon, the Exchange Agent for the Exchange Offer, at its address and telephone number set forth on the first page of the Letter of Transmittal and in the Prospectus under the caption “The Exchange Offer—Exchange Agent.”
| Very truly yours, | |
| JACKSON FINANCIAL INC. |
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN THE PROSPECTUS.
Enclosures
2
Exhibit 99.3
JACKSON FINANCIAL INC.
OFFER TO EXCHANGE
$600,000,000
aggregate principal amount of its 1.125% Senior Notes due 2023 that have been registered
under the Securities Act of 1933 (the “New 2023 Notes”) for any and all of its outstanding 1.125% Senior
Notes due 2023 (the “Old 2023 Notes”)
$500,000,000
aggregate principal amount of its 3.125% Senior Notes due 2031 that have been registered
under the Securities Act of 1933 (the “New 2031 Notes”) for any and all of its outstanding 3.125% Senior
Notes due 2031 (the “Old 2031 Notes”)
$500,000,000
aggregate principal amount of its 4.000% Senior Notes due 2051 that have been registered under
the Securities Act of 1933 (the “New 2051 Notes” and, together with the New 2023 Notes and the New 2031
Notes, the “New Notes”) for any and all of its outstanding 4.000% Senior Notes due 2051 (the “Old 2051 Notes”
and, together with the Old 2023 Notes and the Old 2031 Notes, the “Old Notes”)
Pursuant to Prospectus dated , 2022
, 2022
To our Clients:
Enclosed for your consideration is a prospectus dated , 2022 (the “Prospectus”) and the related letter of transmittal (the “Letter of Transmittal”) relating to the offer (the “Exchange Offer”) of Jackson Financial Inc., a Delaware corporation (the “Company”), to exchange up to $600,000,000 aggregate principal amount of 1.125% Senior Notes due 2023, up to $500,000,000 aggregate principal amount of 3.125% Senior Notes due 2031 and up to $500,000,000 aggregate principal amount of 4.000% Senior Notes due 2051, which have been registered under the Securities Act of 1933, as amended, in each case in exchange for a like aggregate principal amount of Old Notes of the corresponding series upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal. The Exchange Offer is being made in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement dated November 23, 2021 between the Company and the representatives of the initial purchasers of the Old Notes referred to therein. Capitalized terms not defined herein shall have the respective meanings ascribed to them in the Prospectus and the Letter of Transmittal.
This material is being forwarded to you as the beneficial owner of the Old Notes carried by us for your account but not registered in your name. A tender of such Old Notes may only be made by us as the holder of record and pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to tender on your behalf the Old Notes held by us for your account, pursuant to the terms and subject to conditions set forth in the enclosed Prospectus and Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Old Notes on your behalf in accordance with the provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 p.m., New York City time, on , 2022, unless extended by the Company (the “Expiration Date”). Any Old Notes tendered pursuant to the Exchange Offer may be withdrawn (subject to compliance with the procedures set forth in the Prospectus and the Letter of Transmittal) no later than 5:00 p.m., New York City time, on the Expiration Date.
Your attention is directed to the following:
| 1. | The Exchange Offer is for any and all Old Notes. |
| 2. | The Exchange Offer is subject to certain conditions set forth in the Prospectus in the section captioned “The Exchange Offer—Conditions to the Exchange Offer.” |
| 3. | Any transfer taxes incident to the transfer of Old Notes from the holder to the Company pursuant to the Exchange Offer will be paid by the Company, except as otherwise provided in Instruction 5 of the Letter of Transmittal. |
| 4. | The Exchange Offer expires at 5:00 p.m., New York City time, on , 2022, unless extended by the Company. |
If you wish to have us tender your Old Notes, please so instruct us by completing, executing and returning to us the instruction form on page 2 of this letter. The Letter of Transmittal is furnished to you for information only and may not be used directly by you to tender Old Notes.
Please carefully read the Prospectus, the Letter of Transmittal and any other materials that accompany this letter.
INSTRUCTIONS WITH RESPECT
TO THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed Prospectus and Letter of Transmittal relating to the Exchange Offer made by the Company with respect to the Old Notes.
By completing, executing and delivering these instructions, the undersigned hereby represent(s), warrant(s) and agree(s), for your benefit and the benefit of the Company, that the undersigned has (have) full right, power and authority to tender, sell, assign and transfer all right, title and interest in and to the Old Notes and to acquire the New Notes issuable upon the exchange of such Old Notes, and that, if and when such Old Notes are validly tendered and accepted by the Company for exchange, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim.
By completing, executing and delivering these instructions, the undersigned hereby instruct(s) you (check appropriate box):
| ¨ | To TENDER, on the terms and subject to the conditions set forth in the Prospectus and Letter of Transmittal, Old Notes held by you for the account of the undersigned in the principal amount indicated below (by completing, executing and delivering these instructions, the undersigned agree(s) that, if the foregoing box is checked but the dollar amount below is left blank, it means that the undersigned is (are) tendering all of the Old Notes held by you for the account of the undersigned): |
CHECK ONE:
| ¨ 1.125% Senior Notes due 2023 |
| ¨ 3.125% Senior Notes due 2031 |
| ¨ 4.000% Senior Notes due 2051 |
$______________________________________________ of Old Notes
| ¨ | NOT to TENDER any Old Notes held by you for the account of the undersigned. |
If the undersigned instructs you to tender Old Notes held by you for the account of the undersigned, it means that the undersigned authorize(s) you to make, on behalf of the undersigned (and, by completing, signing and delivering these instructions, the undersigned hereby make(s) to you and for the benefit of the Company), the acknowledgements, representations, warranties and agreements contained in the Letter of Transmittal that are to be made by or with respect to the undersigned as beneficial owner(s) of Old Notes.
The undersigned acknowledge(s) and agree(s) that none of the Old Notes held by you for the account of the undersigned will be tendered unless you receive these written instructions from the undersigned to do so.
PLEASE SIGN HERE
| Signature(s): | |
| Name(s) (Please Print): | |
| Capacity (Full Title) if Signing in a Representative or Fiduciary Capacity: | |
| Address: | |
| Zip Code: | |
| Area Code and Telephone No.: | |
| Taxpayer Identification or Social Security No(s).: | |
| Account Number with You: | |
| Date: |
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