EXHIBIT 99.1
LETTER OF TRANSMITTAL
IMPERIAL CAPITAL TRUST I
OFFER TO EXCHANGE ITS
9.98% SERIES B CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
9.98% SERIES A CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS
DATED _______________, 1997
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THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON ________ __, 1997
UNLESS THE OFFER IS EXTENDED.
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The Chase Manhattan Bank
(the "Exchange Agent")
By Mail, Hand or Overnight Delivery:
The Chase Manhattan Bank
55 Water Street
Room 234, North Building
New York, New York 10041
Attention: Carlos Esteves
By Facsimile Transmission:
(212) 638-7375
(212) 344-9367
CONFIRM BY TELEPHONE:
Carlos Esteves: (212) 638-0828
NYFS04...:\31\53831\0003\1703\EXH5217U.10B
Delivery of this Letter of Transmittal to an address other than as set
forth above or transmission of this Letter of Transmittal via a facsimile number
other than the ones listed above will not constitute a valid delivery. The
instructions accompanying this Letter of Transmittal (the "Letter of
Transmittal") should be read carefully before this Letter of Transmittal is
completed.
The undersigned hereby acknowledges receipt of the Prospectus dated
__________, 1997 (the "Prospectus") of Imperial Capital Trust I (the "Trust")
and this Letter of Transmittal, which together constitute the Trust's offer (the
"Exchange Offer") to exchange up to $75,000,000 aggregate liquidation amount of
its 9.98% Series B Capital Securities (liquidation amount $1,000 per Capital
Security) (the "New Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement on Form S-4 of Imperial Bancorp (the "Company") and the
Trust (File Nos. 333-27019 and 333-27019-01), of which the Prospectus is a part,
for a like liquidation amount of its outstanding 9.98% Series A Capital
Securities (liquidation amount $1,000 per Capital Security) (the "Old Capital
Securities"), of which $75,000,000 aggregate liquidation amount is outstanding.
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
__________, 1997, unless the Exchange Offer is extended, in which case the term
"Expiration Date" means the latest date and time to which the Exchange Offer is
extended. Capitalized terms used but not defined herein have the meaning given
to them in the Prospectus.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
This Letter of Transmittal is to be completed by holders of Old Capital
Securities either if (i) Old Capital Securities are to be forwarded herewith or
(ii) tenders of Old Capital Securities are to be made by book-entry transfer to
an account maintained by the Exchange Agent at The Depository Trust Company
("DTC") pursuant to the procedures set forth under "The Exchange Offer --
Procedures for Tendering Old Capital Securities" in the Prospectus and an
Agent's Message (as defined herein) is not delivered.
Holders of Old Capital Securities whose certificates (the
"Certificates") for such Old Capital Securities are not immediately available or
who cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date or who cannot complete the
procedures for book-entry transfer on or prior to the Expiration Date, must
tender their Old Capital Securities according to the guaranteed delivery
procedures set forth in "The Exchange Offer Procedures for Tendering Old Capital
Securities" in the Prospectus.
2
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
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DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
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CERTIFICATE AGGREGATE
NUMBER(S)* LIQUIDATION AMOUNT LIQUIDATION AMOUNT NUMBER OF
(ATTACH OF OLD CAPITAL OF OLD CAPITAL BENEFICIAL HOLDERS
NAME(S) AND ADDRESS(ES) OF ADDITIONAL SECURITIES (ATTACH SECURITIES (IF FOR WHOM OLD
REGISTERED HOLDER LIST IF ADDITIONAL LIST IF LESS THAN ALL)** CAPITAL SECURITIES
(PLEASE FILL IN, IF BLANK) NECESSARY) NECESSARY) ARE HELD
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$ $
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TOTAL AMOUNT TENDERED: $ $
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* Need not be completed by book-entry holders. Such holders should check
the appropriate box below and provide the requested information.
** Need not be completed if tendering for exchange all Old Capital Securities
held. Old Capital Securities may be tendered in whole or in part in
denominations of $100,000 and integral multiples of $1,000 in excess
thereof, provided that if any Old Capital Securities are tendered for
exchange in part, the untendered Liquidation Amount thereof must be
$100,000 or any integral multiple of $1,000 in excess thereof. All Old
Capital Securities held shall be deemed tendered unless a lesser number is
specified in this column.
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3
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS (DEFINED IN
INSTRUCTION 1) ONLY)
[ ] CHECK HERE IF TENDERED OLD CAPITAL SECURITIES 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:
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DTC Account Number:
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Transaction Code Number:
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By crediting the Old Capital Securities to the Exchange Agent's account
at DTC in accordance with DTC's Automated Tender Offer Program ("ATOP") and by
complying with applicable ATOP procedures with respect to the Exchange Offer,
including transmitting an Agent's Message to the Exchange Agent in which the
holder of the Old Capital Securities acknowledges and agrees to be bound by the
terms of this Letter of Transmittal, the participant in ATOP confirms on behalf
of itself and the beneficial owners of such Old Capital Securities all
provisions of this Letter of Transmittal applicable to it and such beneficial
owners as fully as if it had completed the information required herein and
executed and transmitted this Letter of Transmittal to the Exchange Agent.
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name of Registered Holder:
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Window Ticket Number (if any):
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Date of Execution of
Notice of Guaranteed Delivery:
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Name of Institution which
Guaranteed Delivery:
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If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution:
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DTC Account Number:
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Transaction Code Number:
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4
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD
CAPITAL SECURITIES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT
NUMBER SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING
ACTIVITIES (AN "EXCHANGING DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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Area Code and Telephone Number:
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Contact Person:
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5
Ladies and Gentlemen:
The undersigned hereby tenders to Imperial Capital Trust I, a Delaware
statutory business trust (the "Trust"), the above-described aggregate
liquidation amount of the Trust's 9.98% Series A Capital Trust Securities (the
"Old Capital Securities") in exchange for a like aggregate liquidation amount of
the Trust's 9.98% Series B Capital Securities (the "New Capital Securities")
which have been registered under the Securities Act of 1933 (the "Securities
Act"), upon the terms and subject to the conditions set forth in the Prospectus
dated _______________, 1997 (as the same may be amended or supplemented from
time to time, the "Prospectus"), receipt of which is acknowledged, and in this
Letter of Transmittal (which, together with the Prospectus, constitutes the
"Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Capital Securities tendered herewith in accordance with the
terms and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Trust all right, title and interest in and to such Old Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company and the Trust in connection with the Exchange Offer) with respect to the
tendered Old Capital Securities, with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest),
subject only to the right of withdrawal described in the Prospectus to (i)
deliver Certificates for Old Capital Securities to the Trust together with all
accompanying evidences of transfer and authenticity to, or upon the order of,
the Trust, upon receipt by the Exchange Agent, as the undersigned's agent, of
the New Capital Securities to be issued in exchange for such Old Capital
Securities, (ii) present Certificates for such Old Capital Securities for
registration of transfer, and to transfer the Old Capital Securities on the
books of the Trust, and (iii) receive for the account of the Trust all benefits
and otherwise exercise all rights of beneficial ownership of such Old Capital
Securities, all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD
CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR
EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR, EXCEPT AS DESCRIBED ABOVE, PROXIES. THE UNDERSIGNED WILL,
UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE
COMPANY, THE TRUST OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO
COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE OLD CAPITAL SECURITIES
TENDERED HEREBY, AND THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE
REGISTRATION RIGHTS AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE
TERMS OF THE EXCHANGE OFFER.
6
The name and address of the registered holder of the Old Capital
Securities tendered hereby should be printed above, if they are not already set
forth above, as they appear on the Certificates representing such Old Capital
Securities. The Certificate numbers and the Old Capital Securities that the
undersigned wishes to tender should be indicated in the appropriate boxes above.
If any tendered Old Capital Securities are not exchanged pursuant to
the Exchange Offer for any reason, or if Certificates are submitted for more Old
Capital Securities than are tendered or accepted for exchange, Certificates for
such nonexchanged or nontendered Old Capital Securities will be returned (or, in
the case of Old Capital Securities tendered by book-entry transfer, such Old
Capital Securities will be credited to an account maintained at DTC), without
expense to the tendering holder, promptly following the expiration or
termination of the Exchange Offer.
The undersigned understands that tenders of Old Capital Securities
pursuant to any one of the procedures described under "The Exchange Offer -
Procedures for Tendering Old Capital Securities" in the Prospectus and in the
instructions herein will, upon the Company's and the Trust's acceptance for
exchange of such tendered Old Capital Securities, constitute a binding agreement
between the undersigned, the Company and the Trust upon the terms and subject to
the conditions of the Exchange Offer. The undersigned recognizes that, under
certain circumstances set forth in the Prospectus, the Company and the Trust may
not be required to accept for exchange any of the Old Capital Securities
tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Capital
Securities be issued in the name of the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, that such New Capital Securities
be credited to the account indicated above maintained at DTC. If applicable,
substitute Certificates representing Old Capital Securities not exchanged or not
accepted for exchange will be issued to the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, will be credited to the account
indicated above maintained at DTC. Similarly, unless otherwise indicated under
"Special Delivery Instructions" below, please deliver New Capital Securities to
the undersigned at the address shown below the undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (i) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF THE COMPANY OR THE TRUST WITHIN THE MEANING
OF RULE 405 UNDER THE SECURITIES ACT, (ii) ANY NEW CAPITAL SECURITIES TO BE
RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS
BUSINESS, AND (iii) THE UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY
PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES
ACT) OF NEW CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER. IF THE
UNDERSIGNED IS A BROKER-DEALER THAT WILL RECEIVE NEW CAPITAL SECURITIES FOR ITS
OWN ACCOUNT IN EXCHANGE FOR OLD CAPITAL SECURITIES THAT WERE ACQUIRED AS A
RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, IT ACKNOWLEDGES
THAT IT WILL DELIVER A PROSPECTUS MEETING THE REQUIREMENTS OF THE SECURITIES ACT
IN CONNECTION WITH ANY RESALES OF SUCH NEW CAPITAL
7
SECURITIES; HOWEVER, BY SO ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS,
THE UNDERSIGNED WILL NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER"
WITHIN THE MEANING OF THE SECURITIES ACT.
THE COMPANY AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVISIONS
OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY AN EXCHANGING DEALER IN
CONNECTION WITH RESALES OF NEW CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR OLD
CAPITAL SECURITIES, WHERE SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH
EXCHANGING DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR
OTHER TRADING ACTIVITIES, FOR A PERIOD ENDING NINETY DAYS AFTER THE EXPIRATION
DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE
PROSPECTUS). IN THAT REGARD, EACH EXCHANGING DEALER WHO ACQUIRED OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING
ACTIVITIES, BY TENDERING SUCH OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER
OF TRANSMITTAL, AGREES THAT, UPON RECEIPT OF NOTICE FROM THE COMPANY OR THE
TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES
ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN
ANY MATERIAL RESPECT OR WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL
FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY
REFERENCE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING, OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE
REGISTRATION RIGHTS AGREEMENT, SUCH EXCHANGING DEALER WILL SUSPEND THE SALE OF
NEW CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL THE COMPANY OR THE TRUST
HAS AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR
OMISSION AND HAS FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED PROSPECTUS TO
THE EXCHANGING DEALER, OR THE COMPANY OR THE TRUST HAS GIVEN NOTICE THAT THE
SALE OF THE NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE. IF THE
COMPANY OR THE TRUST GIVES SUCH NOTICE TO SUSPEND THE SALE OF THE NEW CAPITAL
SECURITIES, IT SHALL EXTEND THE NINETY DAYS PERIOD REFERRED TO ABOVE DURING
WHICH EXCHANGING DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN CONNECTION WITH
THE RESALE OF NEW CAPITAL SECURITIES BY THE NUMBER OF DAYS DURING THE PERIOD
FROM AND INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO AND INCLUDING THE
DATE WHEN EXCHANGING DEALERS SHALL HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR
AMENDED PROSPECTUS NECESSARY TO PERMIT RESALES OF THE NEW CAPITAL SECURITIES OR
TO AND INCLUDING THE DATE ON WHICH THE COMPANY OR THE TRUST HAS GIVEN NOTICE
THAT THE SALE OF NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated distributions on such Old
Capital Securities for any period from and after the last Distribution Payment
Date to which distributions have been paid or duly provided for on such Old
8
Capital Securities prior to the original issue date of the New Capital
Securities or, if no such distributions have been paid or duly provided for,
will not receive any accrued distributions on such Old Capital Securities, and
the undersigned waives the right to receive any interest on such Old Capital
Securities accrued from and after such Distribution Payment Date or, if no such
distributions have been paid or duly provided for, from and after April 23,
1997.
All authority herein conferred or agreed to be conferred in this Letter
of Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
9
HOLDERS SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 CONTAINED HEREIN)
(NOTE: SIGNATURES MUST BE GUARANTEED IF REQUIRED BY
INSTRUCTION 2)
Must be signed by registered holder exactly as name appears on
Certificate for the Old Capital Securities hereby tendered or on a security
position listing, or by any person authorized to become the registered holder by
endorsements and documents transmitted herewith (including such opinions of
counsel, certifications and other information as may be required by the Trust or
the Administrative Trustees for the Old Capital Securities to comply with the
restrictions on transfer applicable to the Old Capital Securities). If signature
is by an attorney-in-fact, executor, administrator, trustee, guardian, officer
of a corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
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(Signature of Holder(s) or
Authorized Signatory)
Date: _______________________________, 1997
Name(s):
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(Please Print)
Capacity (full title):
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Address:
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(Include Zip Code)
Area Code and Telephone Number:
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Tax Identification or Social Security Number:
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10
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SIGNATURE GUARANTEE
(IF REQUIRED -- SEE INSTRUCTIONS 2 AND 5)
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(Authorized Signature)
Date: , 1997
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Name of Eligible Institution Guaranteeing Signatures:
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Capacity (full title):
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(Please Print)
Address:
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(Include Zip Code)
Area Code and Telephone Number:
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11
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SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the New Capital Securities or any Old Capital Securities
that are not tendered are to be issued in the name of someone other than the
registered holder of the Old Capital Securities whose name appears above.
Issue
[ ] New Capital Securities and/or
[ ] Old Capital Securities not tendered
to:
Name:
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Address:
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(Include Zip Code)
Area Code and Telephone Number:
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Tax Identification or Social Security Number:
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12
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SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the New Capital Securities or any Old Capital Securities
that are not tendered are to be sent to someone other than the registered holder
of the Old Capital Securities whose name appears above, or to such registered
holder at an address other than that shown above.
Issue
[ ] New Capital Securities and/or
[ ] Old Capital Securities not tendered
to:
Name:
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Address:
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(Include Zip Code)
Area Code and Telephone Number:
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Tax Identification or Social Security Number:
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13
INSTRUCTIONS
FORMING PART OF THE TERMS AND
CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES;
GUARANTEED DELIVERY PROCEDURES. This Letter of Transmittal is to be completed
either if (a) Certificates are to be forwarded herewith or (b) tenders are to be
made pursuant to the procedures for tender by book-entry transfer set forth
under "The Exchange Offer - Procedures for Tendering Old Capital Securities" in
the Prospectus and an Agent's Message is not delivered. Certificates, or
book-entry confirmation of a book-entry transfer of such Old Capital Securities
into the Exchange Agent's account at DTC, as well as this Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at its address set forth
herein on or prior to the Expiration Date. Tenders by book-entry transfer may
also be made by delivering an Agent's Message in lieu of this Letter of
Transmittal. The term "book-entry confirmation" means a timely confirmation of
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from the tendering
Participant, which acknowledgment states that such Participant has received and
agrees to be bound by the Letter of Transmittal and that the Trust and the
Company may enforce the Letter of Transmittal against such Participant. Old
Capital Securities may be tendered in whole or in part in the liquidation amount
of $100,000 (100 Capital Securities) and integral multiples of $1,000 in excess
thereof, provided that, if any Old Capital Securities are tendered for exchange
in part, the untendered liquidation amount thereof must be $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) whose
Old Capital Securities are not immediately available or (ii) who cannot deliver
their Old Capital Securities, this Letter of Transmittal and all other required
documents to the Exchange Agent on or prior to the Expiration Date or (iii) who
cannot complete the procedures for delivery by book-entry transfer on or prior
to the Expiration Date, may tender their Old Capital Securities by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth under "The Exchange Offer - Procedures
for Tendering Old Capital Securities" in the Prospectus. Pursuant to such
procedures: (i) such tender must be made by or through an Eligible Institution
(as defined below); (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form made available by the Company and
the Trust, must be received by the Exchange Agent on or prior to the Expiration
Date; and (iii) the Certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with a
Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof),
properly completed and duly executed, with any required signature guarantees and
any other documents required by this Letter of Transmittal, must be received by
the Exchange Agent within three New York Stock Exchange trading days after the
date of execution of such Notice of Guaranteed Delivery, all as provided in "The
Exchange Offer - Procedures for Tendering Old Capital Securities" in the
Prospectus.
14
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent and must include a
guarantee by an Eligible Institution in the form set forth in such Notice. For
Old Capital Securities to be properly tendered pursuant to the guaranteed
delivery procedure, the Exchange Agent must receive a Notice of Guaranteed
Delivery on or prior to the Expiration Date. As used herein and in the
Prospectus, "Eligible Institution" means a financial institution (including most
banks, savings and loan associations and brokerage houses) that is a participant
in the Securities Transfer Agent Medallion Program, the New York Stock Exchange
Medallion Program or the Stock Exchange Medallion Program.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE
TENDERING HOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN
RECEIPT REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY ON OR PRIOR TO THE EXPIRATION DATE. NO DOCUMENTS SHOULD BE SENT TO THE
COMPANY OR THE TRUST. DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY
TO THE EXCHANGE AGENT.
Neither the Company nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof),
waives any right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered
holder (which term, for purposes of this document, shall include any
Participant in DTC whose name appears on a security position listing
as the owner of the Old Capital Securities) of Old Capital Securities
tendered herewith, unless such holder has completed either the box
entitled "Special Issuance Instructions" or the box entitled "Special
Delivery Instructions" above, or
(ii) such Old Capital Securities are tendered for the account
of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities Tendered" is inadequate, the Certificate
numbers and/or the liquidation amount of Old Capital Securities and any other
required information should be listed on a separate signed schedule which is
attached to this Letter of Transmittal.
15
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the liquidation amount of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof, provided
that if any Old Capital Securities are tendered for exchange in part, the
untendered liquidation amount thereof must be $100,000 (100 Capital Securities)
or any integral multiple of $1,000 in excess thereof. If less than all of the
Old Capital Securities evidenced by any Certificate submitted are to be
tendered, fill in the liquidation amount of Old Capital Securities which are to
be tendered in the box entitled "Liquidation Amount of Old Capital Securities
(If Less than All)." In such case, a new Certificate for the remainder of the
Old Capital Securities that were evidenced by your Old Certificate will be sent
to the holder of the Old Capital Securities, promptly after the Expiration Date
unless the appropriate boxes on this Letter of Transmittal are completed. All
Old Capital Securities represented by Certificates delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Capital
Securities may be withdrawn at any time on or prior to the Expiration Date. In
order for a withdrawal to be effective, a written or facsimile transmission of
such notice of withdrawal must be timely received by the Exchange Agent at its
address set forth above or in the Prospectus on or prior to the Expiration Date.
Any such notice of withdrawal must specify the name of the person who tendered
the Old Capital Securities to be withdrawn, the aggregate liquidation amount of
Old Capital Securities to be withdrawn, and (if Certificates for Old Capital
Securities have been tendered) the name of the registered holder of the Old
Capital Securities as set forth on the Certificate for the Old Capital
Securities, if different from that of the person who tendered such Old Capital
Securities. If Certificates for the Old Capital Securities have been delivered
or otherwise identified to the Exchange Agent, then prior to the physical
release of such Certificates for the Old Capital Securities, the tendering
holder must submit the serial numbers shown on the particular Certificates for
the Old Capital Securities to be withdrawn and the signature on the notice of
withdrawal must be guaranteed by an Eligible Institution, except in the case of
Old Capital Securities tendered for the account of an Eligible Institution. If
Old Capital Securities have been tendered pursuant to the procedures for
book-entry transfer set forth under "The Exchange Offer -- Procedures for
Tendering Old Capital Securities," the notice of withdrawal must specify the
name and number of the account at DTC to be credited with the withdrawal of Old
Capital Securities, in which case a notice of withdrawal will be effective if
delivered to the Exchange Agent by written or facsimile transmission on or prior
to the Expiration Date. Withdrawals of tenders of Old Capital Securities may not
be rescinded. Old Capital Securities properly withdrawn will not be deemed
validly tendered for purposes of the Exchange Offer, but may be retendered at
any subsequent time on or prior to the Expiration Date by following any of the
procedures described in the Prospectus under "The Exchange Offer - Procedures
for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including
time of receipt) of such withdrawal notices will be determined by the Company or
the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. Neither the Company or the Trust, any affiliates or
assigns of the Company or the Trust, the Exchange Agent nor any other person
shall be under any duty to give any notification of any irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification. Any Old Capital Securities which have been tendered but which are
withdrawn on or prior to the Expiration Date will be returned to the holder
thereof without cost to such holder promptly after withdrawal.
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5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the registered holder
of the Old Capital Securities tendered hereby, the signature must correspond
exactly with the name as written on the face of the Certificates or on a
security position listing without alteration, enlargement or any change
whatsoever.
If any of the Old Capital Securities tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If any tendered Old Capital Securities are registered in different
names on several Certificates, it will be necessary to complete, sign and submit
as many separate Letters of Transmittal (or facsimiles thereof or Agent's
Messages in lieu thereof) as there are different registrations of Certificates.
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 must submit proper
evidence satisfactory to the Company and the Trust, in their sole discretion, of
such persons' authority to so act.
When this Letter of Transmittal is signed by the registered owner of
the Old Capital Securities listed and transmitted hereby, no endorsement of
Certificates or separate bond powers are required unless New Capital Securities
are to be issued in the name of a person other than the registered holder.
Signatures on such Certificates or bond powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner of the Old Capital Securities listed, the Certificates must be
endorsed or accompanied by appropriate bond powers, signed exactly as the name
of the registered owner appears on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Company, the Trust or the Exchange Agent may require in accordance with the
restrictions on transfer applicable to the Old Capital Securities. Signatures on
such Certificates or bond powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Capital
Securities are to be issued in the name of a person other than the signer of
this Letter of Transmittal, or if New Capital Securities are to be sent to
someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed. Certificates for Old Capital Securities not exchanged will
be returned by mail or, if tendered by book-entry transfer, by crediting the
account indicated above maintained at DTC unless the appropriate boxes on this
Letter of Transmittal are completed. See Instruction 4.
7. IRREGULARITIES. The Company and the Trust will determine, in their
sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Old Capital Securities, which determination shall be final and binding
on all parties. The Company and the Trust reserve the absolute right to reject
any and all tenders determined by either of them not to be in proper form or the
acceptance of which, or exchange for,
17
may, in the view of counsel to the Company or the Trust, be unlawful. The
Company and the Trust also reserve the absolute right, subject to applicable
law, to waive any of the conditions of the Exchange Offer set forth in the
Prospectus under "The Exchange Offer - Conditions to the Exchange Offer," or any
conditions or irregularities in any tender of Old Capital Securities of any
particular holder whether or not similar conditions or irregularities are waived
in the case of other holders. The Company and the Trust's interpretation of the
terms and conditions of the Exchange Offer (including this Letter of Transmittal
and the instructions hereto) will be final and binding. No tender of Old Capital
Securities will be deemed to have been validly made until all irregularities
with respect to such tender have been cured or waived. The Company, the Trust,
any affiliates or assigns of the Company, the Trust, the Exchange Agent, or any
other person shall not be under a duty to give notification of any
irregularities in tenders or incur any liability for failure to give such
notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Exchange Agent at
its address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and the Letter of Transmittal may be obtained from the Exchange Agent
or from your broker, dealer, commercial bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificates
representing Old Capital Securities have been lost, destroyed or stolen, the
holder should promptly notify the Exchange Agent. The holder will then be
instructed as to the steps that must be taken in order to replace the
Certificates. This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificates have been followed.
10. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Capital Securities are to be delivered
to, or are to be issued in the name of, any person other than the registered
holder of the Old Capital Securities tendered, or if a transfer tax is imposed
for any reason other than the exchange of Old Capital Securities in connection
with the Exchange Offer, then the amount of any such transfer tax (whether
imposed on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
11. INCORPORATION OF LETTER OF TRANSMITTAL. This Letter of
Transmittal shall be deemed to be incorporated in and acknowledged and accepted
by any tender through the DTC's ATOP procedures by any participant in DTC on
behalf of itself and the beneficial owners of any Old Capital Securities so
tendered.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF OR AN
AGENT'S MESSAGE IN LIEU HEREOF) AND ALL OTHER REQUIRED DOCUMENTS MUST BE
RECEIVED BY THE EXCHANGE AGENT AT OR PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON
THE EXPIRATION DATE.
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IMPORTANT TAX INFORMATION
Under federal income tax law, a holder whose tendered Old Capital
Securities are accepted for exchange is required by law to provide the Exchange
Agent with such holder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 included herein or otherwise establish a basis for exemption
from backup withholding. If such holder is an individual, the TIN is his social
security number. If the Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service may subject the holder or transferee to a $50 penalty.
In addition, delivery of such holder's New Capital Securities may be subject to
backup withholding. Failure to comply truthfully with the backup withholding
requirements also may result in the imposition of severe criminal and/or civil
fines and penalties.
Certain holders (including, among others, all corporations and
certain foreign persons) are not subject to these backup withholding and
reporting requirements. Exempt holders should write "Exempt" on the face of the
Substitute Form W-9, and sign, date and return the Substitute Form W-9 to the
Exchange Agent. A foreign person, including entities, may qualify as an exempt
recipient by submitting to the Exchange Agent a properly completed Internal
Revenue Service Form W-8, signed under penalties of perjury, attesting to that
holder's foreign status. See the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional
instructions.
If backup withholding applies, the Exchange Agent is required to
withhold 31% of any payments made to the holder or other transferee. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of persons subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to Old
Capital Securities exchanged in the Exchange Offer, the holder is required to
provide the Exchange Agent with either: (i) the holder's correct TIN by
completing the form included herein, certifying that the TIN provided on
Substitute Form W-9 is correct (or that such holder is awaiting a TIN) and that
(A) the holder has not been notified by the Internal Revenue Service that the
holder is subject to backup withholding as a result of failure to report all
interest or dividends or (B) the Internal Revenue Service has notified the
holder that the holder is no longer subject to backup withholding; or (ii) an
adequate basis for exemption.
NUMBER TO GIVE THE DEPOSITARY
The holder is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the registered
holder of the Old Capital Securities. If the Old Capital Securities are held in
more than one name or are held not in the name of the actual owner, consult the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which number to report.
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EXCHANGE AGENT'S NAME: THE CHASE MANHATTAN BANK
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SUBSTITUTE PART 1-PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY Social Security
FORM W-9 SIGNING AND DATING BELOW. Number or
Employer
Identification
Number
................
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Department of the Treasury PART 2-CERTIFICATION-UNDER PENALTIES OF PERJURY, I CERTIFY THAT:
Internal Revenue Service (1) The number shown on this form is my correct Taxpayer Identification Number (or I am
waiting for a number to be issued to me) and
(2) I am not subject to backup withholding either because I have not been notified by
the Internal Revenue Service (the "IRS") that I am subject to backup withholding as
a result of a failure to report all interest or dividends, or the IRS has notified me
PAYER'S REQUEST FOR that I am no longer subject to backup withholding. CERTIFICATION INSTRUCTIONS-You must
TAXPAYER IDENTIFICATION cross out item (2) above if you have been notified by the IRS that you are currently
NUMBER ("TIN") subject to backup withholding because of underreporting interest or dividends on your
tax return. However, if after being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS that you are no longer subject
to backup withholding, do not cross out such item (2).
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PART 3
SIGNATURE......................................... DATE..................... Awaiting TIN [ ]
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NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE
IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9.
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CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all reportable payments made to me will be withheld, but that such amounts
will be refunded to me if I then provide a Taxpayer Identification Number within
60 days.
................................................ ..................., 1997
Signature Date
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