LETTER OF TRANSMITTAL
With Respect to
the Exchange of Ordinary Shares
of
MEDIS EL LTD.
for shares of Common Stock
of
MEDIS TECHNOLOGIES LTD.
PURSUANT TO THE PROSPECTUS DATED APRIL 24, 2000
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON MAY 22, 2000 UNLESS EXTENDED (THE "EXPIRATION DATE").
PLEASE READ CAREFULLY THE ATTACHED INSTRUCTIONS
If you desire to accept the Exchange Offer, this Letter of Transmittal should be
completed, signed, and submitted to the Exchange Agent:
American Stock Transfer & Trust Company
(the "Exchange Agent"):
IF BY OVERNIGHT COURIER: IF BY HAND:
American Stock Transfer & Trust Company American Stock Transfer & Trust Company
6201 15(th) Avenue, Floor 3L 40 Wall Street, 46(th) Floor
Brooklyn, New York 11219 New York, New York 10005
IF BY MAIL:
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
WILL NOT CONSTITUTE A VALID DELIVERY.
FOR ANY QUESTIONS REGARDING THIS LETTER OF TRANSMITTAL OR FOR ANY ADDITIONAL
INFORMATION, YOU MAY CONTACT THE EXCHANGE AGENT BY TELEPHONE AT (800) 937-5449,
EXT. 6820 (TOLL FREE).
The undersigned hereby acknowledges receipt of the prospectus dated
April 24, 2000 (the "Prospectus") of Medis Technologies Ltd., a Delaware
corporation (the "Issuer"), and this Letter of Transmittal (the "Letter of
Transmittal"), that together constitute the Issuer's offer (the "Exchange
Offer") to exchange 1.37 shares of common stock, par value $.01, of the Issuer
(the "Exchange Stock"), which have been registered under the Securities Act (as
hereinafter defined) pursuant to a Registration Statement, for each ordinary
share, par value 0.1 NIS (the "Shares"), of Medis El Ltd., an Israeli
Corporation ("Medis El"), outstanding. Capitalized terms used but not defined
herein have the meanings ascribed to them in the Prospectus.
The undersigned hereby tenders the Shares described in Box I below (the
"Tendered Shares") pursuant to the terms and conditions described in the
Prospectus and this Letter of Transmittal. The undersigned is the registered
owner of all the Tendered Shares and, if not also the beneficial owner thereof,
the undersigned represents that it has received from each beneficial owner of
the Tendered Shares ("Beneficial Owners") a duly completed and executed form of
"Instruction to Registered Holder and/or Book-Entry Transfer Facility
Participant from Beneficial Owner of Medis El Ltd.," a copy of which accompanies
this Letter of Transmittal, instructing the undersigned to take the action
described in this Letter of Transmittal.
Subject to, and effective upon, the acceptance for exchange of the Tendered
Shares, the undersigned hereby exchanges, assigns and transfers to, or upon the
order of, the Issuer, all right, title, and interest in, to and under the
Tendered Shares.
Please issue the Exchange Stock in exchange for Tendered Shares in the
name(s) of the undersigned. Similarly, unless otherwise indicated under "Special
Delivery Instructions" below (Box 3), please send or cause to be sent the
certificates for the Exchange Stock (and accompanying documents, as appropriate)
to the undersigned at the address shown below in Box 1.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent as the true and lawful agent and attorney-in-fact of the undersigned with
respect to the Tendered Shares, with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest), to
(i) deliver the Tendered Shares to the Issuer or cause ownership of the Tendered
Shares to be transferred to, or upon the order of, the Issuer, on the books of
the registrar for the Shares and deliver all accompanying evidences of transfer
and authenticity to, or upon the order of, the Issuer upon receipt by the
Exchange Agent, as the undersigned's agent, of the Exchange Stock to which the
undersigned is entitled upon acceptance by the Issuer of the Tendered Shares
pursuant to the Exchange Offer and (ii) receive all benefits and otherwise
exercise all rights of beneficial ownership of the Tendered Shares, all in
accordance with the terms of the Exchange Offer, except as set forth below.
The undersigned hereby irrevocably appoints the designees of the Issuer, and
each of them, the attorneys-in-fact and proxies of the undersigned, each with
full power of substitution, to vote in such manner as each such attorney and
proxy or any substitute thereof shall deem proper in the sole discretion of such
attorney-in-fact and proxy or such substitute, and otherwise act (including
pursuant to written consent) with respect to all the Tendered Shares which have
been accepted by the Issuer prior to the time of such vote or action, which the
undersigned is entitled to vote at any meeting of shareholders (whether annual
or special and whether or not an adjourned meeting), of Medis El or otherwise.
This proxy and power of attorney is coupled with an interest in the Tendered
Shares and is irrevocable and is granted in consideration of, and is effective
upon, the acceptance of such Tendered Shares by the Issuer in accordance with
the terms of the Offer. Such acceptance for exchange shall revoke any other
proxy granted by the undersigned at any time with respect to such Tendered
Shares and no subsequent proxies will be given (or, if given, will not be deemed
effective) with respect thereto by the undersigned. The undersigned understands
that in order for Tendered Shares to be deemed validly tendered, immediately
upon the Issuer's acceptance of such Tendered Shares for exchange, the Issuer or
its designee must be able to exercise full voting rights with respect to such
Tendered Shares.
The undersigned understands that tenders of Shares pursuant to the
procedures described in the caption "The Exchange Offer" in the Prospectus and
in the instructions hereto will constitute a binding agreement between the
undersigned and the Issuer upon the terms and subject to the conditions of the
Exchange Offer, subject only to withdrawal of such tenders on the terms set
forth in the Prospectus under the caption "The Exchange Offer--Withdrawal
Rights." All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the undersigned and any Beneficial Owner(s), and
every obligation of the undersigned or any Beneficial Owners hereunder shall be
binding upon the heirs, representatives, successors and assigns of the
undersigned and such Beneficial Owner(s).
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, exchange, assign and transfer the Tendered Shares
and that the Issuer will acquire good and unencumbered title thereto, free and
clear of all liens, restrictions, charges, encumbrances and adverse claims when
the Tendered Shares are acquired by the Issuer as contemplated herein. The
undersigned and each Beneficial Owner will, upon request, execute and deliver
any additional documents reasonably requested by the Issuer or the Exchange
Agent as necessary or desirable to complete and give effect to the transactions
contemplated hereby.
2
The undersigned hereby represents and warrants that the information set
forth in Box 2 is true and correct.
By accepting the Exchange Offer, the undersigned hereby represents and
warrants that (i) the Exchange Stock to be acquired by the undersigned and any
Beneficial Owner(s) in connection with the Exchange Offer are being acquired by
the undersigned and any Beneficial Owner(s) in the ordinary course of business
of the undersigned and any Beneficial Owner(s), (ii) the undersigned and each
Beneficial Owner are not participating, do not intend to participate, and have
no arrangement or understanding with any person to participate, in the
distribution of the Exchange Stock, (iii) except as otherwise disclosed in
writing herewith or in the Prospectus, neither the undersigned nor any
Beneficial Owner is an "affiliate," as defined in Rule 405 under the Securities
Act, of the Issuer or any of its subsidiaries and (iv) the undersigned and each
Beneficial Owner acknowledge and agree that any participating in the Exchange
Offer with the intention or for the purpose of distributing the Exchange Stock
must comply with the registration and prospectus delivery requirements of the
Securities Act of 1933, as amended (together with the rules and regulations
promulgated thereunder, "Securities Act"), in connection with a secondary resale
of the Exchange Stock acquired by such person. Each broker-dealer that will
receive Exchange Stock for its own account in exchange for Shares that were
acquired as a result of market-making activities or other trading activities
hereby acknowledges that it will deliver a Prospectus in connection with any
resale of such Exchange Shares; however, by so acknowledging and by delivering a
Prospectus, such broker-dealer is not deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED HEREWITH.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE EXCHANGE AGENT AND COMPLETE
"USE OF GUARANTEED DELIVERY" BELOW (Box 4).
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE "USE OF BOOK-ENTRY TRANSFER" BELOW (Box 5).
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE ADDITIONAL COPIES
OF THE PROSPECTUS AND COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ______________________________________________________________________
Address: ___________________________________________________________________
Number of Additional Copies: _______________________________________________
3
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING THE BOXES
BOX 1
- ---------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
(ATTACH ADDITIONAL SIGNED PAGES, IF NECESSARY)
- ---------------------------------------------------------------------------------------------------------------------
AGGREGATE
NAME(S) AND ADDRESS(ES) OF REGISTERED SHARE HOLDER(S), CERTIFICATE NUMBER OF SHARES AGGREGATE
EXACTLY AS NAME(S) APPEAR(S) ON SHARE CERTIFICATE(S) (PLEASE NUMBER OF REPRESENTED BY NUMBER OF SHARES
FILL IN, IF BLANK) SHARES* CERTIFICATE(S) TENDERED
- ---------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
TOTAL
- ---------------------------------------------------------------------------------------------------------------------
* Need not be completed by persons tendering by book-entry transfer.
- ---------------------------------------------------------------------------------------------------------------------
BOX 2
- --------------------------------------------------------------------------------------------
BENEFICIAL OWNER(S)
- --------------------------------------------------------------------------------------------
STATE OF PRINCIPAL RESIDENCE OF EACH PRINCIPAL AMOUNT OF TENDERED SHARES
BENEFICIAL OWNER OF TENDERED SHARES HELD FOR ACCOUNT OF BENEFICIAL OWNER
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
4
BOX 3
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
TO BE COMPLETED ONLY IF EXCHANGE STOCK EXCHANGED FOR TENDERED SHARES ARE
TO BE SENT TO SOMEONE OTHER THAN THE UNDERSIGNED, OR TO THE UNDERSIGNED AT
AN ADDRESS OTHER THAN THAT SHOWN ABOVE.
Mail Exchange Stock to:
Name(s):
____________________________________________________________________________
____________________________________________________________________________
(PLEASE PRINT)
Address: ___________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
____________________________________________________________________________
TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER:
- --------------------------------------------------------------------------------
BOX 4
----------------------------------------------------------------------------USE
OF GUARANTEED DELIVERY
(SEE INSTRUCTION 2)
TO BE COMPLETED ONLY IF SHARES ARE BEING TENDERED BY MEANS OF A NOTICE OF
GUARANTEED DELIVERY.
Name(s) of Registered Holder(s): ___________________________________________
____________________________________________________________________________
Date of Execution of Notice of Guaranteed Delivery: ________________________
Name of Institution which Guaranteed Delivery: _____________________________
----------------------------------------------------------------------------
BOX 5
----------------------------------------------------------------------------USE
OF BOOK-ENTRY TRANSFER
(SEE INSTRUCTION 1)
5
TO BE COMPLETED ONLY IF DELIVERY OF TENDERED SHARES IS TO BE MADE BY
BOOK-ENTRY TRANSFER
Name of Tendering Institution: _____________________________________________
Account Number: ____________________________________________________________
Transaction Code Number: ___________________________________________________
----------------------------------------------------------------------------
BOX 6
- --------------------------------------------------------------------------------
TENDERING HOLDER SIGNATURE
(SEE INSTRUCTIONS 1 AND 5)
IN ADDITION, COMPLETE SUBSTITUTE FORM W-9
- --------------------------------------------------------------------------------
6
- -------------------------------------------
X
_______________________________________________________________________________
X
_______________________________________________________________________________
(SIGNATURE OF REGISTERED HOLDER(S) OR
AUTHORIZED SIGNATORY)
Note: The above lines must be signed by the registered holder(s) of Shares as
their name(s) appear(s) on the Shares or on a security position listing or by
person(s) authorized to become registered holder(s) (evidence of which
authorization must be transmitted with this Letter of Transmittal). If
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer or other person acting in a fiduciary or representative capacity, such
person must set forth his or her full title below. See Instruction 5.
Name(s): ______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Capacity: _____________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Street
Address: ______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(INCLUDE ZIP CODE)
Area code and Telephone Number:
_______________________________________________________________________________
Tax Identification or Social Security Number:
_______________________________________________________________________________
Signature Guarantee
(IF REQUIRED BY INSTRUCTION 5)
Authorized Signature
X
_______________________________________________________________________________
Name: _________________________________________________________________________
_______________________________________________________________________________
(PLEASE PRINT)
Title: ________________________________________________________________________
_______________________________________________________________________________
Name of
Firm: _________________________________________________________________________
(MUST BE AN ELIGIBLE INSTITUTION
AS DEFINED IN INSTRUCTION 2)
Address: ______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
_______________________________________________________________________________
_______________________________________________________________________________
Dated: ________________________________________________________________________
6
PAYOR'S NAME: MEDIS TECHNOLOGIES LTD.
SUBSTITUTE Name (if joint names, list first and circle the name of the person or
FORM W-9 entity whose number you enter in Part 1 below. See instructions if your
DEPARTMENT OF THE TREASURY name has changed.)
INTERNAL REVENUE SERVICE
Address
City, State and ZIP Code
List account number(s) here (optional)
PART 1--PLEASE PROVIDE YOUR TAXPAYER Social Security Number
IDENTIFICATION NUMBER ("TIN") IN THE BOX AT or TIN
RIGHT AND CERTIFY BY SIGNING AND DATING
BELOW.
PART 2--Check the box if you are NOT subject to backup withholding
under the provisions of section 3406(a)(1)(C) of the Internal Revenue
Code because (1) you have not been notified that you are subject to
backup withholding as a result of failure to report all interest or
dividends or (2) the Internal Revenue Service has notified you that you
are no longer subject to backup withholding. / /
CERTIFICATION--UNDER THE PENALTIES OF PART 3--
PERJURY, I CERTIFY THAT THE INFORMATION Awaiting TIN / /
PROVIDED ON THIS FORM IS TRUE, CORRECT AND
COMPLETE.
SIGNATURE DATE
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE W-9 FOR ADDITIONAL DETAILS.
7
INSTRUCTIONS TO LETTER OF TRANSMITTAL
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND SHARES. A properly completed
and duly executed copy of this Letter of Transmittal, including Substitute
Form W-9, and any other documents required by this Letter of Transmittal must be
received by the Exchange Agent at its address set forth herein, and either
certificates for Tendered Shares must be received by the Exchange Agent at its
address set forth herein or such Tendered Shares must be transferred pursuant to
the procedures for book-entry transfer described in the Prospectus under the
caption "Exchange Offer--Procedures for Tendering Medis El Shares" (and a
confirmation of such transfer received by the Exchange Agent), in each case
prior to 5:00 p.m., New York City time, on the Expiration Date. The method of
delivery of certificates for Tendered Shares, this Letter of Transmittal and all
other required documents to the Exchange Agent is at the election and 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 with
return receipt requested, property insured, is recommended. Instead of delivery
by mail, it is recommended that the holder use an overnight or hand delivery
service. In all cases, sufficient time should be allowed to assure timely
delivery. No Letter of Transmittal or Shares should be sent to the Issuer. The
Issuer is not under any obligation to notify any tendering holder of the
Issuer's acceptance of Tendered Shares prior to the closing of the Exchange
Offer.
2. GUARANTEED DELIVERY PROCEDURES. Holders who wish to tender their Shares
but whose Shares are not immediately available, and who cannot deliver their
Shares, this Letter of Transmittal or any other documents required hereby to the
Exchange Agent prior to the Expiration Date must tender their Shares according
to the delivery procedures set forth below, including completion of Box 4.
Pursuant to such procedures: (i) such tender must be made by or through a firm
which is a member of a recognized Medallion Program approved by the Securities
Transfer Association Inc. (an "Eligible Institution") and the Notice of
Guaranteed Delivery must be signed by the holder; (ii) prior to the Expiration
Date, the Exchange Agent must have received from the holder and the Eligible
Institution a properly completed and duly executed Notice of Guaranteed Delivery
(by mail or hand delivery) setting forth the name and address of the holder, the
certificate number(s) of the Tendered Shares and the principal amount of
Tendered Shares, stating that the tender is being made hereby and guaranteeing
that, within three New York Stock Exchange trading days after the Expiration
Date, this Letter of Transmittal together with the certificate(s) representing
the Shares and any other required documents will be deposited by the Eligible
Institution with the Exchange Agent; and (iii) such properly completed and
executed Letter of Transmittal, as well as all other documents required by this
Letter of Transmittal and the certificate(s) representing all Tendered Shares in
proper form for transfer, must be received by the Exchange Agent within three
New York Stock Exchange trading days after the Expiration Date. Any holder who
wishes to tender Shares pursuant to the delivery procedures described above must
ensure that the Exchange Agent receives the Notice of Guaranteed Delivery
relating to such Shares prior to 5:00 p.m., New York City time, on the
Expiration Date. Failure to complete the guaranteed delivery procedures outlined
above will not, of itself, affect the validity or effect a revocation of any
Letter of Transmittal form properly completed and executed by an Eligible Holder
who attempted to use the guaranteed delivery process.
3. BENEFICIAL OWNER INSTRUCTIONS TO REGISTERED HOLDERS. Only a holder in
whose name Tendered Shares are registered on the books of the registrar (or the
legal representative or attorney-in-fact of such registered holder) may execute
and deliver this Letter of Transmittal. Any Beneficial Owner of Tendered Shares
who is not the registered holder must arrange promptly with the registered
holder to execute and deliver this Letter of Transmittal on his or her behalf
through the execution and delivery to the registered holder of the Instructions
to Registered Holder and/or Book Entry Transfer Facility Participant from
Beneficial Owner form accompanying this Letter of Transmittal.
8
4. PARTIAL TENDERS. If less than all the Tendered Shares evidenced by any
certificate submitted are tendered, the tendering holder should fill in the
number of Medis El Shares to be tendered in the column labeled "Aggregate Number
of Shares Tendered" of the box entitled "Description of Shares Tendered" (Box
1) above. All Tendered Shares represented by certificates delivered to the
Exchange Agent will be deemed to have been tendered unless otherwise indicated.
If less than all of the Tendered Shares held by the holder are tendered, new
certificate(s) for the remainder of the Tendered Shares that were evidenced by
the Holder's old certificate(s) will be sent to the Holder at his or her
registered address unless otherwise provided in the box entitled "Special
Delivery Instructions" (Box 3) above as soon as practicable following the
Expiration Date.
5. SIGNATURES ON THE LETTER OF TRANSMITTAL: STOCK POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES. If this Letter of Transmittal is signed by the
registered holder(s) of the Tendered Shares, the signature must correspond with
the name(s) as written on the face of the Tendered Shares without alteration,
enlargement or any change, whatsoever.
If any of the Tendered Shares are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal. If any Tendered
Shares are held in different names, it will be necessary to complete, sign and
submit as many separate copies of the Letter of Transmittal as there are
different names in which Tendered Shares are held.
If this Letter of Transmittal is signed by the registered holder(s) of
Tendered Shares, and Exchange Stock issued in exchange therefor are to be issued
(and any untendered Shares are to be reissued) in the name of the registered
holder(s), then such registered holder(s) need not and should not endorse any
Tendered Shares, nor provide a separate stock power. In any other case, such
registered holder(s) must either properly endorse the Tendered Shares or
transmit a properly completed stock power with this Letter of Transmittal, with
the signature(s) on the endorsement or stock power guaranteed by an Eligible
Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of any Tendered Shares, such Tendered Shares must be
endorsed or accompanied by appropriate stock powers, in each case, signed as the
name(s) of the registered holder(s) appear(s) on the Tendered Shares, with the
signature(s) on the endorsement or stock power guaranteed by an Eligible
Institution.
If this Letter of Transmittal or any Tendered Shares or stock powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations, or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and, unless waived by the
Issuer, evidence satisfactory to the Issuer of their authority to so act must be
submitted with this Letter of Transmittal.
Endorsements on Tendered Shares or signatures on stock powers required by
this Instruction 5 must be guaranteed by an Eligible Institution.
Signatures on this Letter of Transmittal must be guaranteed by an Eligible
Institution unless the Tendered Shares are tendered (i) by a registered holder
who has not completed the box set forth herein entitled "Special Delivery
Instructions" (Box 3) or (ii) by an Eligible Institution.
6. SPECIAL DELIVERY INSTRUCTIONS. Tendering holders should indicate, in
the applicable box (Box 3), the name and address to which the Exchange Stock for
principal amounts not tendered or not accepted for exchange are to be sent, if
different from the name and address of the person signing this Letter of
Transmittal. In the case of issuance in a different name, the taxpayer
identification or social security number of the person named must also be
indicated
7. TRANSFER TAXES. The Issuer will pay or cause to be paid all transfer
taxes, if any, applicable to the exchange of Tendered Shares pursuant to the
Exchange Offer. If, however, a transfer tax is imposed for any reason other than
the transfer and exchange of Tendered Shares pursuant to the Exchange Offer,
then the
9
amount of any such transfer taxes (whether imposed on the registered holder or
on any other person) will be payable by the tendering holder. If satisfactory
evidence of payment of such taxes or exemption therefrom is not submitted with
this Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering holder.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Tendered Shares listed in this Letter
of Transmittal.
8. TAX IDENTIFICATION NUMBER. Federal income tax law requires that the
holder(s) of any Tendered Shares which are accepted for exchange must provide
the Issuer (as payor) with its correct taxpayer identification number ("TIN"),
which, in the case of a holder who is an individual, is his or her social
security number. If the Issuer is not provided with the correct TIN, the holder
may be subject to backup withholding and a $50 penalty imposed by the Internal
Revenue Service. (If withholding results in an over-payment of taxes, a refund
may be obtained). 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 shareholder must file 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 Exchange Agent. See the enclosed Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9 for additional
instructions.
To prevent backup withholding, each holder of Tendered Shares must provide
such holder's correct TIN by completing the Substitute Form W-9 set forth
herein, certifying that the TIN provided is correct (or that such holder is
awaiting a TIN), and that (i) the holder has not been notified by the Internal
Revenue Service that such holder is subject to backup withholding as a result of
failure to report all interest or dividends or (ii) the Internal Revenue Service
has notified the holder that such holder is no longer subject to backup
withholding.
Backup withholding is not an additional tax. Rather, the tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
The Issuer reserves the right in its sole discretion to take whatever steps
are necessary to comply with the Issuer's obligations regarding backup
withholding.
9. VALIDITY OF TENDERS. All questions as to the validity, form,
eligibility (including time of receipt), acceptance and withdrawal of Tendered
Shares will be determined by the Issuer in its sole discretion, which
determination will be final and binding. The Issuer reserves the right to reject
any and all Shares not validly tendered or any Shares the Issuer's acceptance of
which would, in the opinion of the Issuer or its counsel, be unlawful. The
Issuer also reserves the right to waive any conditions of the Exchange Offer or
defects or irregularities in tenders of Shares as to any ineligibility of any
holder who seeks to tender Shares in the Exchange Offer. The interpretation of
the terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) by the Issuer shall be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Shares must be cured within such time as the Issuer
shall determine. Neither the Issuer, the Exchange Agent nor any other person
shall be under any duty to give notification of defects or irregularities with
respect to tenders of Shares, nor shall any of them incur any liability for
failure to give such notification. Tenders of Shares will not be deemed to have
been made until such defects or irregularities have been cured or waived. Any
Shares received by the Exchange Agent that are not properly tendered and as to
which the defects or irregularities have not been cured or waved will be
returned by the Exchange Agent to the tendering holders, unless otherwise
provided in this Letter of Transmittal as soon as practicable following the
Expiration Date.
10. WAIVER OF CONDITIONS. The Issuer reserves the absolute right to amend,
waive or modify any of the conditions in the Exchange Offer in the case of any
Tendered Shares.
10
11. NO CONDITIONAL TENDER. No alternative, conditional, irregular or
contingent tender of Shares or transmittal of this Letter of Transmittal will be
accepted.
12. MUTILATED, LOST, STOLEN OR DESTROYED SHARES. Any tendering holder
whose Shares have been mutilated, lost, stolen or destroyed should contact the
Exchange Agent at the address indicated herein for further instructions.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance and requests for additional copies of the Prospectus or this
Letter of Transmittal may be directed to the Exchange Agent at the address
indicated herein. Holders may also contact their broker, dealer, commercial
bank, trust company or other nominee for assistance concerning the Exchange
Offer.
14. ACCEPTANCE OF TENDERED SHARES AND ISSUANCE OF SHARES; RETURN OF
SHARES. Subject to the terms and conditions of the Exchange Offer, the Issuer
will accept for exchange all validly tendered Shares as soon as practicable
after the Expiration Date and will issue Exchange Shares therefor as soon as
practicable thereafter. For purposes of the Exchange Offer, the Issuer shall be
deemed to have accepted tendered Shares when, as and if the Issuer has given
written or oral notice (immediately followed in writing) thereof to the Exchange
Agent. If any Tendered Shares are not exchanged pursuant to the Exchange Offer
for any reason, such unexchanged Shares will be returned, without expense, to
the undersigned at the address shown in Box 1 or at a different address as may
be indicated herein under "Special Delivery Instructions" (Box 3).
15. WITHDRAWAL. Tenders may be withdrawn only pursuant to the procedures
set forth in the Prospectus under the caption "The Exchange Offer--Withdrawal
Rights."
11