CONSENT AND LETTER OF TRANSMITTAL
TO TENDER AND TO GIVE CONSENT IN RESPECT OF
11% SENIOR SUBORDINATED NOTES DUE 2007
PURSUANT TO THE OFFER TO PURCHASE AND CONSENT SOLICITATION STATEMENT
DATED MARCH 24, 2000
BY
THE DIALOG CORPORATION PLC
THE OFFER WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON APRIL 20,
2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). HOLDERS OF NOTES MUST TENDER
THEIR NOTES AND PROVIDE THEIR CONSENTS ON OR PRIOR TO THE EXPIRATION DATE IN
ORDER TO RECEIVE THE TENDER PAYMENT. TENDERED NOTES MAY BE WITHDRAWN AT ANY
TIME ON OR PRIOR TO THE EXPIRATION DATE, BUT NOT THEREAFTER. CONSENTS MAY BE
REVOKED AT ANY TIME PRIOR TO THE EXECUTION OF THE SUPPLEMENTAL INDENTURE (AS
DEFINED HEREIN).
THE DEPOSITARY FOR THE OFFER AND THE SOLICITATION IS:
THE BANK OF NEW YORK
BY OVERNIGHT COURIER
BY MAIL: AND BY HAND AFTER 4:30 PM: BY HAND BEFORE 4:30 PM:
The Bank of New York The Bank of New York The Bank of New York
101 Barclay Street 7E 101 Barclay Street 7E 101 Barclay Street 7E
New York, NY 10286 New York, NY 10286 New York, NY 10286
Attention: Carolle Montreuil Attention: Carolle Montreuil Attention: Carolle Montreuil
BY FACSIMILE:
(212) 815-6339
FOR ELIGIBLE INSTITUTIONS
ONLY
CONFIRM BY TELEPHONE:
(for Confirmation Only)
(212) 815-5788
DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL TO THE DEPOSITARY AT AN
ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA A
FACSIMILE TO A NUMBER OTHER THAN AS LISTED ABOVE, WILL NOT CONSTITUTE A VALID
DELIVERY.
THE INFORMATION AGENT IS:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll Free: (888) 242-8154
ONLY HOLDERS OF RECORD AT THE CLOSE OF BUSINESS ON MARCH 24, 2000 (EACH A
"RECORD HOLDER") WILL BE ENTITLED TO PROVIDE CONSENTS TO THE PROPOSED
AMENDMENTS.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE THE TENDER PAYMENT PURSUANT TO
THE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR NOTES AND PROVIDE THEIR
CONSENTS TO THE DEPOSITARY ON OR PRIOR TO THE EXPIRATION DATE. TENDERED NOTES
MAY NOT BE WITHDRAWN AFTER THE EXPIRATION DATE, AND CONSENTS MAY NOT BE REVOKED
AFTER THE EXECUTION OF THE SUPPLEMENTAL INDENTURE.
This Consent and Letter of Transmittal is to be used by holders (the
"Holders") of 11% Senior Subordinated Notes due 2007 (the "Notes") of The Dialog
Corporation plc, a company incorporated in England and Wales (the "Company"),
and, if: (i) certificates representing Notes are to be physically delivered to
the Depositary herewith by such Holders; (ii) tender of Notes is to be made by
book-entry transfer to the Depositary's account at The Depository Trust Company
("DTC") (the "Book-Entry Transfer Facility") pursuant to the procedures set
forth under the caption "Procedures for Tendering Notes and Delivering
Consents--Book-Entry Delivery Procedures" in Section 8 of the Offer to Purchase
and Consent Solicitation Statement dated March 24, 2000 (as it may be
supplemented and amended from time to time, the "Statement"); (iii) tender of
Notes is to be made according to the guaranteed delivery procedures set forth in
Section 8 of the Statement under the caption "Procedures for Tendering Notes and
Delivering Consents--Guaranteed Delivery"; or (iv) tender of Notes is to be made
according to the DTC Automated Tender Offer Program ("ATOP"), pursuant to the
procedures set forth in Section 8 of the Statement under the caption "Procedures
for Tendering Notes and Delivering Consents--Tender of Notes Held Through DTC."
If a registered Holder who desires to tender Notes pursuant to the Offer is
not the Record Holder, a Consent Proxy must be completed and properly executed
by the Record Holder and must be delivered with the Consent and Letter of
Transmittal of the registered Holder.
All capitalized terms used herein but not defined herein shall have the
meanings ascribed to them in the Statement.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
If a Holder desires to tender Notes pursuant to the Offer and deliver a
Consent to the Proposed Amendments pursuant to the Solicitation and time will
not permit this Consent and Letter of Transmittal, any Consent Proxy,
certificates representing such Notes and all other required documents to reach
the Depositary, or the procedure for book-entry transfer cannot be completed, on
or prior to the Consent Date or the Expiration Date, as the case may be, then
such Holder must tender such Notes and deliver such Consent and Consent Proxy,
if applicable, according to the guaranteed delivery procedures set forth in
Section 8 of the Statement under the caption "Procedures for Tendering Notes and
Delivering Consents--Guaranteed Delivery." See Instruction 2.
HOLDERS WHO DESIRE TO TENDER THEIR NOTES PURSUANT TO THE OFFER AND RECEIVE
THE TENDER PAYMENT ARE REQUIRED TO PROVIDE CONSENTS TO THE PROPOSED AMENDMENTS
WITH RESPECT TO SUCH NOTES. ACCORDINGLY, THE PROPER TENDER BY A HOLDER OF NOTES
PURSUANT TO THE OFFER WILL CONSTITUTE THE DELIVERY OF A CONSENT OF SUCH HOLDER
TO THE PROPOSED AMENDMENTS WITH RESPECT TO THE PRINCIPAL AMOUNT OF THE NOTES SO
TENDERED.
The valid withdrawal of a Holder's Notes prior to the execution of the
Supplemental Indenture will constitute the concurrent valid revocation of such
Holder's Consent. A Holder who validly withdraws previously tendered Notes will
not receive the Tender Payment. A Holder may not validly revoke a Consent unless
such Holder validly withdraws such Holder's previously tendered Notes. Tendered
Notes may not be withdrawn after the Expiration Date, and Consents may not be
revoked after the execution of the Supplemental Indenture.
The undersigned should complete, execute and deliver this Consent and Letter
of Transmittal to indicate the action the undersigned desires to take with
respect to the Offer and the Solicitation.
2
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TENDER OF NOTES
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/ / CHECK HERE IF TENDERED NOTES ARE ENCLOSED HEREWITH.
/ / CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution: _____________________________________________
Name of Book-Entry Transfer Facility:
/ / DTC
Account Number: ____________________________________________________________
Transaction Code Number: ___________________________________________________
/ / CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE
THE FOLLOWING:
Name(s) of Registered Note Holder(s): ______________________________________
Window Ticket Number (if any): _____________________________________________
Date of Execution of Notice of Guaranteed Delivery: ________________________
Date of Eligible Institution that Guaranteed Delivery: _____________________
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3
List below the Notes to which this Consent and Letter of Transmittal
relates. If the space provided is inadequate, list the certificate numbers and
principal amounts on a separately executed schedule and affix the schedule to
this Consent and Letter of Transmittal. Tenders of Notes will be accepted only
in principal amounts equal to $1,000 or integral multiples thereof.
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DESCRIPTION OF 11% SENIOR SUBORDINATED NOTES
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PRINCIPAL AMOUNT
NAME(S) AND ADDRESS(ES) OF AGGREGATE TENDERED AND AS
REGISTERED HOLDER(S) CERTIFICATE PRINCIPAL AMOUNT TO WHICH CONSENTS
(PLEASE FILL IN, IF BLANK) NUMBER(S)(*) REPRESENTED** ARE GIVEN**
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Total Principal
Amount of Notes
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* Need not be completed by Holders tendering by book-entry transfer.
** Unless otherwise specified, it will be assumed that the entire aggregate principal amount
represented by the Notes described above is being tendered. See Instruction 4. Holders who desire
to tender their Notes pursuant to the Offer and receive the Tender Payment are required to consent
to the Proposed Amendments with respect to all Notes tendered by such Holders.
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The names and addresses of the registered Holders should be printed, if not
already printed above, exactly as they appear on the Notes tendered hereby. The
Notes and the principal amount of the Notes that the undersigned wishes to
tender should be indicated in the appropriate boxes.
4
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to The Dialog Corporation plc, a company
incorporated in England and Wales (the "Company"), upon the terms and subject to
the conditions set forth in its Offer to Purchase and Consent Solicitation
Statement dated March 24, 2000 (as it may be supplemented and amended from time
to time, the "Statement"), receipt of which is hereby acknowledged, and in
accordance with this Consent and Letter of Transmittal, and delivers Consents to
the Proposed Amendments with respect to the principal amount of Notes indicated
in the table above entitled "Description of 11% Senior Subordinated Notes" under
the column heading "Principal Amount Tendered and as to which Consents are
Given."
Subject to purchase by the Company, by acceptance for payment and payment
for the principal amount of Notes tendered herewith, in accordance with the
terms and subject to the conditions of the Offer and applicable law, including
the prior execution of the Supplemental Indenture, the undersigned hereby sells,
assigns and transfers to, or upon the order of, the Company, all right, title
and interest in and to all of the Notes tendered hereby. The undersigned also
hereby delivers Consents to the Proposed Amendments with respect to the entire
principal amount of Notes so tendered. The undersigned hereby irrevocably
constitutes and appoints the Depositary the true and lawful agent and
attorney-in-fact of the undersigned (with full knowledge that the Depositary
also acts as the agent of the Company) with respect to such Notes, with full
powers of substitution and revocation (such power of attorney being deemed to be
an irrevocable power coupled with an interest) to (i) present such Notes and all
evidences of transfer and authenticity to, or transfer ownership of, such Notes
on the account books maintained by any of the Book-Entry Transfer Facilities to,
or upon the order of, the Company, (ii) present such Notes for transfer of
ownership on the books of the relevant security register, (iii) receive all
benefits and otherwise of such Notes, and (iv) deliver to the Company and the
Trustee this Consent and Letter of Transmittal as evidence of the undersigned's
Consent to the Proposed Amendments and as certification that Requisite Consents
to the Proposed Amendments duly executed by Holders have been received, all in
accordance with the terms and conditions of the Offer and the Solicitation as
described in the Statement.
The undersigned agrees and acknowledges that, by the execution and delivery
hereof, the undersigned makes and provides the written Consent to the Proposed
Amendments with respect to the principal amount of Notes tendered herewith, as
permitted by Section 9.02 of the Indenture. The undersigned understands that the
Consents provided hereby shall remain in full force and effect unless and until
such Consents are revoked in accordance with the procedures set forth in the
Statement and this Consent and Letter of Transmittal. The undersigned also
understands that the Proposed Amendments will be effected by the Supplemental
Indenture which will be executed by the Issuer and the Trustee following receipt
of the Requisite Consents. However, the Proposed Amendments, by their terms, do
not become effective or effect any change in the operating provisions of the
Indenture unless the Company purchases, by accepting for payment, all Notes
validly tendered (and not withdrawn) pursuant to the Offer, in which event the
Proposed Amendments shall be deemed effective as of immediately prior to such
acceptance for payment, and the Company shall thereafter be obligated to pay for
the Notes so accepted on the Payment Date. The undersigned also understands that
no revocation of Consents may be made after the execution of the Supplemental
Indenture, but if the Offer is terminated thereafter without any Notes having
been purchased, the Proposed Amendments will not become effective.
If the undersigned is not the registered Holder of the Notes tendered
herewith or such Holder's legal representative or attorney-in-fact, then, in
order to provide valid Consents (and to make a valid tender, since Notes may not
be tendered without also consenting to the Proposed Amendments), the undersigned
has obtained a properly completed irrevocable proxy dated the date hereof that
authorizes the undersigned to vote such Notes on behalf of the Holder thereof,
and such proxy is being delivered with this Consent and Letter of Transmittal.
5
The undersigned understands that tenders of Notes may be withdrawn and
Consents may be revoked at any time on or prior to the Expiration Date by
written notice of withdrawal or revocation, or a properly transmitted "Request
Message" through ATOP, received by the Depositary, in accordance with the
procedures set forth in Section 9 of the Statement under the caption "Withdrawal
of Tenders and Revocation of Consents." A valid withdrawal of tendered Notes on
or prior to the Expiration Date will be deemed a revocation of the related
Consents. Consents may be revoked at any time prior to the execution of the
Supplemental Indenture, but a valid revocation of Consents will result in a
withdrawal of a tender of the Notes. In the event of a termination of the Offer
without any Notes having been purchased thereunder, the Notes tendered pursuant
to the Offer will be returned to the tendering Holders promptly (or, in the case
of Notes tendered by book-entry transfer, such Notes will be credited to an
account maintained at the Book-Entry Transfer Facility from which such Notes
were delivered). If the Company makes a material change in the terms of the
Offer or the information concerning the Offer or waives a material condition of
the Offer, the Company will disseminate additional Offer materials and extend
the Offer, to the extent required by law. If the Solicitation is amended prior
to the execution of the Supplemental Indenture in a manner determined by the
Company to constitute a material adverse change to the Holders, the Company
promptly will disclose such amendment and, if necessary, extend the Solicitation
for a period deemed by the Company to be adequate to permit Holders to deliver
or revoke their Consents.
The undersigned understands that tenders of Notes pursuant to any of the
procedures described in the Statement and in the instructions hereto and
acceptance of such Notes by the Company will constitute a binding agreement
between the undersigned and the Company upon the terms and subject to the
conditions of the Offer and the Solicitation and this Consent and Letter of
Transmittal. For purposes of the Offer, the undersigned understands that validly
tendered Notes (or defectively tendered Notes with respect to which the Company
has waived, or has caused to be waived, such defect) will be deemed to have been
accepted for payment if, as and when the Company gives oral or written notice
thereof to the Depositary. The Company will pay for Notes so accepted as soon as
practicable following the acceptance of Notes validly tendered for purchase and
payment pursuant to the Offer by depositing the Tender Payment in immediately
available funds with the Depositary. For purposes of the Solicitation, Consents
received by the Depositary will be deemed to have been accepted if, as and when
the Company gives written notice to the Trustee of the receipt by the Depositary
of the Requisite Consents and the Supplemental Indenture is executed.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Notes tendered
hereby and to give the Consents contained herein, and that, when such tendered
Notes are accepted for payment and paid for by the Company, the Company will
acquire good title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claim or right. The undersigned,
upon request, will execute and deliver any additional documents deemed by the
Depositary or by the Company to be necessary or desirable to complete the sale,
assignment and transfer of the Notes tendered hereby, to perfect the
undersigned's Consents to the Proposed Amendments or to complete the execution
of the Supplemental Indenture.
All authority conferred or agreed to be conferred by this Consent and Letter
of Transmittal shall not be affected by and shall survive, the death or
incapacity of the undersigned, and any obligation of the undersigned hereunder
shall be binding upon the heirs, executors, administrators, trustees in
bankruptcy, personal and legal representatives, successors and assigns of the
undersigned.
The undersigned understands that, if the undersigned is not the Record
Holder of the Notes, the undersigned must deliver, with the Consents contained
herein, a completed and validly executed Consent Proxy from such Record Holder
of the Notes. Any delivery of a Consent without such consent proxy by the
undersigned who is not a Record Holder will constitute an invalid Consent (and
an invalid tender, since Notes may not be tendered without also consenting to
the Proposed Amendments).
6
The undersigned understands that the delivery and surrender of any Notes is
not effective, and the risk of loss of the Notes does not pass to the Company,
until receipt by the Depositary of this Consent and Letter of Transmittal, or a
facsimile hereof, properly completed and duly executed, together with all
accompanying evidences of authority and any other required documents in form
satisfactory to the Company. All questions as to form of all documents and the
validity (including time of receipt) and acceptance of tenders and withdrawals
of Notes and deliveries and revocations of Consents will be determined by the
Company, in its sole discretion, which determination shall be final and binding.
Unless otherwise indicated herein under "Special Payment or Issuance
Instructions," the undersigned hereby requests that any Notes representing
principal amounts not tendered or not accepted for payment be issued in the
name(s) of the undersigned, and checks for the Tender Payment to be made in
connection with the Offer be issued to the order of the undersigned. Similarly,
unless otherwise indicated herein under "Special Delivery Instructions," the
undersigned hereby requests that any Notes representing principal amounts not
tendered or not accepted for payment and checks for the Tender Payment to be
made in connection with the Offer be delivered to the undersigned at the address
shown below the undersigned's signature(s). In the event that the "Special
Payment or Issuance Instructions" box or the "Special Delivery Instructions" box
is, or both are, completed, the undersigned hereby requests that any Notes
representing principal amounts not tendered or not accepted for payment be
issued in the name(s) of, certificates for such Notes be delivered to, and
checks for the Tender Payment to be made in connection with the Offer be issued
in the name(s) of, and be delivered to, the person(s) at the address(es) so
indicated, and credit for Notes representing principal amounts not tendered or
not accepted for payment be made to the account of the Book-Entry Transfer
Facility so indicated, as applicable. The undersigned recognizes that the
Company has no obligation pursuant to the "Special Payment or Issuance
Instructions" box or the "Special Delivery Instructions" box to transfer any
Notes from the name of the registered holder(s) thereof if the Company does not
accept for purchase any of the principal amount of such Notes so tendered.
7
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SPECIAL PAYMENT OR
ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Notes in a principal amount not tendered or not
accepted for purchase are to be issued in the name of, or checks for the
Tender Payment are to be issued to the order of, someone other than the
person or persons whose signature(s) appear(s) within this Consent and
Letter of Transmittal or issued to an address different from that shown in
the box entitled "Description of 11% Senior Subordinated Notes" within this
Consent and Letter of Transmittal.
Issue: G Notes
G Checks
(check as applicable)
Name _______________________________________________________________________
(Please Print)
Address ____________________________________________________________________
Address ____________________________________________________________________
(Please Print)
____________________________________________________________________________
(Zip Code)
____________________________________________________________________________
(Tax Identification or Social Security Number)
(See Substitute Form W-9 herein)
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SPECIAL DELIVERY
INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Notes in a principal amount not tendered or not
accepted for payment or checks for the Tender Payment are to be sent to
someone other than the person or persons whose signature(s) appear(s) within
this Consent and Letter of Transmittal or to an address different from that
shown in the box entitled "Description of 11% Senior Subordinated Notes"
within this Consent and Letter of Transmittal.
Deliver: G Notes
G Checks
(check as applicable)
Name _______________________________________________________________________
(Please Print)
Address ____________________________________________________________________
Address ____________________________________________________________________
(Please Print)
__________________________________________________________________________
(Zip Code)
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8
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PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING AND CONSENTING HOLDERS OF NOTES REGARDLESS
OF WHETHER NOTES ARE BEING PHYSICALLY DELIVERED HEREWITH)
By completing, executing and delivering this Consent and Letter of
Transmittal, the undersigned hereby consents to the Proposed Amendments with
respect to the principal amount of the Notes tendered herewith.
This Consent and Letter of Transmittal must be signed by the registered
Holder(s) exactly as name(s) appear(s) on certificate(s) for Note(s) or, if
tendered by a participant in one of the Book-Entry Transfer Facilities,
exactly as such participant's name appears on a security position listing as
owner of Notes, or by person(s) authorized to become registered Holder(s) by
endorsements and documents transmitted herewith. If signature is by
trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
please set forth full title and see Instruction 5.
____________________________________________________________________________
____________________________________________________________________________
SIGNATURE(S) OF REGISTERED HOLDER(S) OR AUTHORIZED SIGNATORY
(SEE GUARANTEE REQUIREMENT BELOW)
Dated: ______________________________________________________________ , 2000
Name(s) ____________________________________________________________________
(PLEASE PRINT)
Capacity ___________________________________________________________________
Address ____________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Tel. No. _____________________________________________________
Tax Identification or
Social Security No. ________________________________________________________
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
Authorized Signature _______________________________________________________
Name of Firm _______________________________________________________________
Address ____________________________________________________________________
Area Code & Tel. No. _______________________________________________________
Dated: ______________________________________________________________ , 2000
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CONSENT PROXY
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL RECORD HOLDERS
OF NOTES WHO ARE NO LONGER
REGISTERED HOLDERS OF NOTES)
By completing, executing and delivering this Consent proxy, the
undersigned hereby appoints the Current Holder, with full power of
substitution, to provide the Consent and Notice of Transmittal to the
Proposed Amendments with respect to the principal amount of the Notes
registered in the name of the undersigned on the Record Date.
This Consent proxy must be signed by the Record Holder(s) exactly as
name(s) appear(s) on certificates(s) for Note(s), or by person(s) authorized
to become registered Holder(s) by endorsements and documents transmitted
herewith. If signature is by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary
or representative capacity, please set forth full title and see Instruction
5.
____________________________________________________________________________
____________________________________________________________________________
SIGNATURE(S) OF REGISTERED HOLDER(S) OR AUTHORIZED SIGNATORY
(SEE GUARANTEE REQUIREMENT BELOW)
Dated: ______________________________________________________________ , 2000
Name(s) ____________________________________________________________________
(PLEASE PRINT)
Capacity ___________________________________________________________________
Address ____________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
Authorized Signature _______________________________________________________
Name of Firm _______________________________________________________________
Address ____________________________________________________________________
Area Code & Tel. No. _______________________________________________________
Dated: ______________________________________________________________ , 2000
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9
INSTRUCTIONS
THESE INSTRUCTIONS FORM PART OF THE TERMS AND CONDITIONS OF THE OFFER AND THE
SOLICITATION.
1. SIGNATURE GUARANTEES. All signatures on this Consent and Letter of
Transmittal must be guaranteed by a bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing of the Securities
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Guarantee Program or the Stock Exchange Medallion Program, or a bank,
broker, dealer, credit union, savings association or other entity which is an
"eligible guarantor institution," as such term is defined in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended (each of the foregoing being
referred to as an "Eligible Institution"), unless the Notes tendered hereby are
tendered (i) by a registered Holder of the Notes (or by a participant in one of
the Book-Entry Transfer Facilities whose name appears on a security position
listing as the owner of such Notes) who has not completed either the box
entitled "Special Delivery Instruction" or the box entitled "Special Payment or
Issuance Instructions" on this Consent and Letter of Transmittal, or (ii) for
the account of an Eligible Institution. If the Notes are registered in the name
of a person other than the signer of this Consent and Letter of Transmittal or
if Notes not accepted for payment or not tendered are to be returned to a person
other than the registered Holder, then the signatures on this Consent and Letter
of Transmittal must be guaranteed by an Eligible Institution as described above.
See Instruction 5.
2. DELIVERY OF CONSENT AND LETTER OF TRANSMITTAL AND NOTES. This Consent
and Letter of Transmittal is to be completed by Holders if (i) certificates
representing Notes are to be physically delivered to the Depositary herewith by
such Holders; (ii) tender of Notes is to be made by book-entry transfer to the
Depositary's account at a Book-Entry Transfer Facility pursuant to the
procedures set forth in Section 8 of the Statement under the caption "Procedures
for Tendering Notes and Delivering Consents--Book-Entry Delivery Procedures";
(iii) tender of Notes is to be made according to the guaranteed delivery
procedures set forth in Section 8 of the Statement under the caption "Procedures
for Tendering Notes and Delivering Consents--Guaranteed Delivery"; or
(iv) tender of Notes and delivery of Consents is to be made through ATOP,
pursuant to the procedures set forth in Section 8 of the Statements under the
caption "Procedures for Tendering Notes and Delivering Consents--Tender of Notes
Held Through DTC."
In order to validly tender Notes pursuant to the Offer and validly deliver
Consents pursuant to the Solicitation, all physically delivered Notes, or a
Book-Entry Confirmation, including by means of an Agent's Message, of the
transfer into the Depositary's account at a Book-Entry Transfer Facility of all
Notes delivered electronically, as well as a properly completed and duly
executed Consent and Letter of Transmittal (or a facsimile thereof) and any
other documents required by this Consent and Letter of Transmittal, must be
received by the Depositary at its address set forth herein on or prior to the
Expiration Date, or the tendering Holder must comply with the guaranteed
delivery procedures set forth below. DELIVERY OF DOCUMENTS TO A BOOK-ENTRY
TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
If a Holder desires to tender Notes pursuant to the Offer and deliver a
Consent to the Proposed Amendments pursuant to the Solicitation and time will
not permit this Consent and Letter of Transmittal, certificates representing
such Notes and all other required documents to reach the Depositary, or the
procedures for book-entry transfer cannot be completed on or prior to the
Expiration Date, such Holder must tender such Notes and deliver such Consent
pursuant to the guaranteed delivery procedures set forth in Section 8 of the
Statement under the caption "Procedures for Tendering Notes and Delivering
Consents--Guaranteed Delivery." Pursuant to such procedures, (i) such tender
must be made by or through an Eligible Institution, (ii) a properly completed
and duly executed Notice of Guaranteed Delivery, substantially in the form of
the Notice of Guaranteed Delivery provided by the Company, or an Agent's Message
with respect to guaranteed delivery that is acceptable to the Company, must be
received by the Depositary, either by hand delivery, mail, telegram, or
facsimile transmission, on or prior to the Expiration Date and (iii) the
certificates for all tendered Notes, in proper form for transfer (or a
Book-Entry Confirmation, including by means of an Agent's Message, of the
transfer of such Notes into
10
the Depositary's account at one of the Book-Entry Transfer Facilities pursuant
to the procedures for such transfer set forth in Section 8 of the Statement
under the caption "Procedures of Tendering Notes and Delivering
Consents--Book-Entry Delivery Procedures"), together with a properly completed
and duly executed Consent and Letter of Transmittal (or a facsimile thereof)
with any required signature guarantees and any other documents required by this
Consent and Letter of Transmittal must be received by the Depositary within
three New York Stock Exchange trading days after the date of the execution of
the Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL, THE NOTES
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH A BOOK-ENTRY
TRANSFER FACILITY AND ANY ACCEPTANCE OR AGENT'S MESSAGE TRANSMITTED THROUGH
ATOP, IS AT THE OPTION AND RISK OF THE TENDERING HOLDER. If delivery is by mail,
registered mail with return receipt requested, properly insured, is recommended.
In all cases, sufficient time should be allowed for such documents to reach the
Depositary on or prior to the Expiration Date. Except as otherwise provided in
this Instruction 2, delivery will be deemed made only when actually received by
the Depositary.
No alternative, conditional or contingent tenders will be accepted. All
tendering Holders, by execution of this Consent and Letter of Transmittal (or a
facsimile thereof), waive any right to receive any notice of the acceptance of
their Notes for payment.
If the registered holder of the Notes is not the Record Holder of such
Notes, a Consent Proxy must be properly completed and executed by the Record
Holder of the Notes. A Consent Proxy must be delivered together with the Consent
and Letter of Transmittal by the registered holder in accordance with the
permitted methods of delivery provided for herein.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the principal amounts represented by Notes should be
listed on a separate, signed schedule attached hereto.
4. PARTIAL TENDERS. Tenders of Notes will be accepted only in principal
amounts equal to $1,000 or integral multiples thereof. If Holders wish to tender
and deliver Consents with respect to less than the entire principal amount
evidenced by any Notes submitted, such Holders must fill in the principal amount
that is to be tendered in the column entitled "Principal Amount Tendered and as
to which Consents are Given" in the table entitled "Description of 11% Senior
Subordinated Notes." In the case of a partial tender of Notes, as soon as
practicable after the Expiration Date, new certificates for the remainder of the
Notes that were evidenced by such Holder's old certificates will be issued in
the name of and sent to such Holder, unless otherwise provided in the
appropriate "special instruction" box or boxes on this Consent and Letter of
Transmittal. Unless otherwise indicated in the table entitled "Description of
11% Senior Subordinated Notes" under the column heading "Principal Amount
Tendered and as to which Consents are Given," the entire principal amount that
is represented by Notes delivered to the Depositary will be deemed to have been
tendered, and the tendering Holder will be deemed to have delivered a Consent to
the Proposed Amendments with respect to the entire principal amount of Notes so
tendered.
5. SIGNATURES ON CONSENT AND LETTER OF TRANSMITTAL, INSTRUMENTS OF TRANSFER
AND ENDORSEMENTS. If this Consent and Letter of Transmittal is signed by the
registered Holder(s) of the Notes tendered hereby, the signatures must
correspond with the name(s) as written on the face of the certificate(s) without
alteration, enlargement or any change whatsoever. If this Consent and Letter of
Transmittal is signed by a participant in one of the Book-Entry Transfer
Facilities whose name is shown as the owner of the Notes tendered hereby, the
signature must correspond with the name shown on the security position listing
as the owner of the Notes.
If any of the Notes tendered hereby are registered in the name of two or
more Holders, all such Holders must sign this Consent and Letter of Transmittal.
If any of the Notes tendered hereby are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Consents and Letters of Transmittal as there are different registrations of
certificates.
11
If this Consent and Letter of Transmittal or instrument of transfer is or
any Notes are signed by a trustee, executor, administrator, guardian,
attorney-in-fact, agent, officer of a corporation or other person acting in a
fiduciary or representative capacity, such person should so indicate when
signing, and proper evidence satisfactory to the Company of such person's
authority to so act must be submitted.
When this Consent and Letter of Transmittal is signed by the registered
Holder(s) of the Notes listed and transmitted hereby, no endorsements of Notes
or separate instruments of transfer are required unless payment is to be made,
or Notes not tendered or purchased are to be issued, to a person other than the
registered Holder(s), in which case signatures on such Notes or instruments of
transfer must be guaranteed by an Eligible Institution.
IF THIS CONSENT AND LETTER OF TRANSMITTAL IS SIGNED OTHER THAN BY THE
REGISTERED HOLDER(S) OF THE NOTES LISTED, THE NOTES MUST BE ENDORSED OR
ACCOMPANIED BY APPROPRIATE WRITTEN INSTRUMENT OR INSTRUMENTS OF TRANSFER, IN
EITHER CASE SIGNED EXACTLY AS THE NAME OR NAMES OF THE REGISTERED HOLDER(S)
APPEAR ON THE NOTES AND SIGNATURE(S) ON SUCH NOTES OR INSTRUMENTS OF TRANSFER
ARE REQUIRED AND MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION, UNLESS THE
SIGNATURE IS THAT OF AN ELIGIBLE INSTITUTION. IN ADDITION, SUCH TENDER MUST BE
ACCOMPANIED BY A VALID CONSENT OR PROXY OF SUCH REGISTERED HOLDER(S), SINCE
NOTES MAY NOT BE TENDERED WITHOUT A CONSENT TO THE PROPOSED AMENDMENTS BEING
PROVIDED THEREWITH AND ONLY REGISTERED HOLDERS ARE ENTITLED TO PROVIDE CONSENTS
TO THE PROPOSED AMENDMENTS. SIGNATURES ON SUCH CONSENT OR PROXY MUST BE
GUARANTEED BY AN ELIGIBLE INSTITUTION, UNLESS THE SIGNATURE IS THAT OF AN
ELIGIBLE INSTITUTION.
Pursuant to authority granted by DTC, any DTC participant which has Notes
credited to its DTC account at any time (and thereby held of record by DTC's
nominee) may directly provide a Consent to the Proposed Amendments as though it
were the registered Holder by so completing, executing and delivering this
Consent and Letter of Transmittal.
6. SPECIAL PAYMENT OR ISSUANCE AND DELIVERY INSTRUCTIONS. If a check
and/or certificates for unpurchased or untendered Notes are to be issued in the
name of a person other than the signer of this Consent and Letter of
Transmittal, or if a check is to be sent and/or such Notes are to be returned to
someone other than the signer of this Consent and Letter of Transmittal or to an
address other than that shown above, the appropriate boxes on this Consent and
Letter of Transmittal should be completed. All Notes tendered by book-entry
transfer and not accepted for payment will be returned by crediting the account
at the Book-Entry Transfer Facility designated above as the account from which
such Notes were delivered, unless the appropriate box on this Consent and Letter
of Transmittal is checked, in which case the Notes will be returned by crediting
the account indicated in such box.
7. TRANSFER TAXES. Except as set forth in this Instruction 7, the Company
will pay or cause to be paid any transfer taxes with respect to the transfer and
sale of Notes to it, or to its order, pursuant to the Offer. If payment of the
Tender Payment is to be made to, or if Notes not tendered or purchased are to be
registered in the name of, any persons other than the registered owners, or if
tendered Notes are registered in the name of any persons other than the persons
signing this Consent and Letter of Transmittal, the amount of any transfer taxes
(whether imposed on the registered Holder or such other person) payable on
account of the transfer to such other person will be deducted from the Tender
Payment unless satisfactory evidence of the payment of such taxes or exemption
therefrom is submitted.
8. WAIVER OF CONDITIONS. The conditions of the Offer and the Solicitation
may be amended or waived by the Company, in whole or in part, at any time and
from time to time in the Company's sole discretion, in the case of any Notes
tendered or Consents delivered.
9. SUBSTITUTE FORM W-9. Each tendering Holder (or other payee) is required
to provide the Depositary with a correct taxpayer identification number ("TIN"),
generally the Holder's social security or federal employer identification
number, together with certain other information, on Substitute Form W-9, which
is provided under "Important Tax Information" below, and is required to certify
that the Holder (or other payee) is not subject to backup withholding. Failure
to provide such holder's taxpayer identification
12
number on the Substitute Form W-9 may subject the tendering Holder (or other
payee) to a $50 penalty imposed by the Internal Revenue Service and 31% federal
income tax withholding on the payment of the Tender Payment. More serious
penalties may be imposed for providing false information which, if willfully
done, may result in fines and/or imprisonment. The box in part 3 of the
Substitute Form W-9 may be checked if the tendering Holder (or other payee) has
not been issued a TIN and has applied for a TIN or intends to apply for a TIN in
the near future. If the box in Part 3 is checked and the Depositary is not
provided with a TIN by the time of payment, the Depositary will withhold 31% on
all such payments of the Tender Payment until a TIN is provided to the
Depositary.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to
the procedures for tendering Notes and providing Consents to the Proposed
Amendments and requests for assistance may be directed to the Dealer Manager at
its address and telephone number set forth below. Additional copies of the
Statement, this Consent and Letter of Transmittal, the Notice of Guaranteed
Delivery and the Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9 may be obtained from the Information Agent at the address
and telephone number set forth below or from your broker, dealer, commercial
bank, trust company or other nominee.
IMPORTANT: IN ORDER TO VALIDLY TENDER NOTES PURSUANT TO THE OFFER AND
VALIDLY DELIVER CONSENTS PURSUANT TO THE SOLICITATION, THIS CONSENT AND LETTER
OF TRANSMITTAL (OR A FACSIMILE HEREOF), TOGETHER WITH CERTIFICATES REPRESENTING
NOTES (OR A BOOK-ENTRY CONFIRMATION, INCLUDING BY MEANS OF AN AGENT'S MESSAGE)
AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY, MUST BE
RECEIVED BY THE DEPOSITARY ON OR PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under federal income tax law, certain Holders whose Notes are tendered and
accepted for payment or exchange are required to provide the Depositary with
such Holder's current TIN on Substitute Form W-9 below. If such Holder is an
individual, the TIN is his or her Social Security number. If the Depositary is
not provided with the correct TIN, the Holder or other payee may be subject to a
$50 or greater penalty imposed by the Internal Revenue Service. In addition, any
Tender Payment paid to such Holder or other payee with respect to Notes
purchased pursuant to the Offer may be subject to 31% backup withholding tax.
Certain Holders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that Holder must submit to the Depositary a properly completed
Internal Revenue Service Form W-8 (a "Form W-8"), signed under penalties of
perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the Depositary. See the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional
instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any Tender Payment paid to the Holder or other payee. Backup withholding is not
an additional 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 any Tender Payment paid to a Holder or
other payee with respect to Notes purchased pursuant to the Offer, the Holder is
required to notify the Depositary of the Holder's current TIN (or the TIN of any
other payee) by completing the form below, certifying that the TIN provided on
Substitute Form W-9 is correct (or that such Holder is awaiting a TIN), and that
(1) the Holder has not been notified by the Internal Revenue Service that the
Holder is subject to backup
13
withholding as a result of failure to report all interest or dividends or
(2) the Internal Revenue Service has notified the Holder that the Holder is no
longer subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The Holder is required to give the depositary the TIN (e.g., social security
number or employer identification number) of the record owner of the Notes. If
the Notes are registered in more than one name or are not registered 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.
14
- --------------------------------------------------------------------------------------------------------------
PAYER'S NAME: THE BANK OF NEW YORK
- --------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1--PLEASE PROVIDE Social Security Number(s) or Employer
FORM W-9 YOUR TIN IN THE BOX AT Identification Number(s)
DEPARTMENT OF THE TREASURY RIGHT AND CERTIFY BY ------------------------
INTERNAL REVENUE SERVICE SIGNING AND DATING
BELOW.
-------------------------------------------------------------------
PART 2--Certification--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct taxpayer
identification number (or I am waiting for a number to be issued
for me), and
(2) I am not subject to backup withholding because: (a) I am exempt
PAYER'S REQUEST FOR TAXPAYER
IDENTIFICATION NUMBER ("TIN") from backup withholding, or (b) I have not been notified by the
Internal Revenue Service (IRS) that I am subject to backup
withholding as a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer
subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if
you have been notified by the IRS that you are currently subject to
backup withholding because of under reporting interest or dividends
on your tax return.
---------------------------------------------------------------
SIGNATURE PART 3
---------------
DATE ------------------- Awaiting TIN / /
- --------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 OR GREATER
PENALTY IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF
31% OF ANY CASH PAYMENTS MADE TO YOU PURSUANT TO THE OFFER AND THE
SOLICITATION. 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 THE SUBSTITUTE FORM W-9.
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) 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
(2) 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 cash payments made to me thereafter
will be withheld until I provide a taxpayer identification number.
Signature
---------------------------------------------------- Date
---------------------
- --------------------------------------------------------------------------------
15
THE DEPOSITARY FOR THE OFFER AND THE SOLICITATION IS:
THE BANK OF NEW YORK
BY MAIL: BY OVERNIGHT COURIER AND BY BY HAND BEFORE 4:30 P.M.:
The Bank of New York HAND AFTER 4:30 PM: The Bank of New York
101 Barclay Street 7E The Bank of New York 101 Barclay Street 7E
New York, NY 10286 101 Barclay Street 7E New York, NY 10286
Attention: Carolle Montreuil New York, NY 10286 Attention: Carolle Montreuil
Attention: Carolle Montreuil
BY FACSIMILE:
(212) 815-6339
FOR ELIGIBLE INSTITUTIONS
ONLY
CONFIRM BY TELEPHONE:
(for Confirmation Only)
(212) 815-5788
THE INFORMATION AGENT FOR THE OFFER AND FOR THE SOLICITATION IS:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll Free: (888) 242-8154
THE DEALER MANAGER FOR THE OFFER AND SOLICITATION AGENT FOR THE SOLICITATION IS:
WASSERSTEIN PERELLA & CO., INC.
31 West 52nd Street
New York, NY 10019
Attention: Mark Hootnick
Samuel Greene
Phone: (212) 969-2700
Fax: (212) 969-7836