THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.
NEW YORK CITY TIME, ON _________, 1997 (THE "INITIAL EXPIRATION DATE")
UNLESS OTHERWISE EXTENDED BY THE COMPANY IN ITS SOLE DISCRETION
(SUCH DATE, AS EXTENDED, the "EXPIRATION DATE")
- --------------------------------------------------------------------------------
LETTER OF TRANSMITTAL
FOR TENDER OF ALL OUTSTANDING
11 3/4% Series C Senior Secured Step-up Notes Due 2000
In Exchange For
11 3/4% Series D Senior Secured Step-up Notes Due 2000
OF
WRIGHT MEDICAL TECHNOLOGY, INC.
Pursuant to the Exchange Offer
----------------------------------------------------
The Exchange Agent for the Exchange Offer is:
To: State Street Bank and Trust Company
Exchange Agent
By Mail, Overnight Delivery or By Hand
Two International Place
Boston, MA 02110
Attention: Jacqueline Rivera
Corporate Trust Department
Telephone: (617) 664-5419
By Facsimile: (617) 664-5371
----------------------------------------------------
Delivery of this instrument to an address, or transmission via
facsimile, other than as set forth above, does not constitute a valid delivery.
The instructions contained herein should be read carefully before this Letter of
Transmittal is completed.
The undersigned acknowledges receipt and review of the Prospectus dated
_____, 1997, (the "Prospectus") containing the terms of the Exchange Offer of
Wright Medical Technology, Inc., a Delaware corporation (the "Company"), and
this Letter of Transmittal and instructions hereto (the "Letter"), in connection
with the Company's offer (the "Exchange Offer") to exchange $1,000 principal
amount of its 11 3/4% Series D Senior Secured Step-up Notes Due 2000 (the
"Registered Notes") for each $1,000 principal amount of its outstanding 11 3/4%
Series C Senior Secured Step-up Notes Due 2000 (the "Old Notes"). The terms of
the Registered Notes are identical in all material respects (including principal
amount, interest rate and maturity) to the terms of the Old Notes for which they
may be exchanged pursuant to the Exchange Offer, except that (i) the Registered
Notes will have been registered under the Securities Act of 1933, as amended
(the "Securities Act"), and, therefore, will not bear legends restricting the
transfer thereof and (ii) holders of the Registered Notes will not be entitled
to certain rights of holders of the Old Notes under a registration rights
agreement which will terminate upon consummation of the Exchange Offer.
Following the consummation of the Exchange Offer, holders of Old Notes and
Registered Notes will not have any further registration rights, and the Old
Notes will continue to be subject to certain restrictions on transfer.
Capitalized terms used but not defined herein have the meaning given
them in the Exchange Offer as set forth in the Prospectus.
455
The undersigned has completed, executed and delivered this Letter to
indicate the action he or she desires to take with respect to the Exchange
Offer.
PLEASE READ THIS ENTIRE LETTER CAREFULLY BEFORE CHECKING ANY BOX BELOW.
THIS LETTER OF TRANSMITTAL IS TO BE COMPLETED BY ALL TENDERING
HOLDERS OF OLD NOTES REGARDLESS OF WHETHER SUCH NOTES
ARE BEING PHYSICALLY DELIVERED HEREWITH.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED
"DESCRIPTION OF OLD NOTES TENDERED" BELOW AND
SIGNING THIS LETTER WILL BE DEEMED TO HAVE
TENDERED THE OLD NOTES AS SET FORTH
IN SUCH BOX BELOW.
This tender of Old Notes for Registered Notes, if effective, will be
binding upon the Holder of the Old Notes who gives such tender, subject only to
a valid revocation of the tender by the Holder by delivery to the Trustee of a
written notice of revocation prior to the Effective Date, completed, signed,
dated and delivered to the Trustee in the manner described in the Prospectus.
Tenders may not be revoked after the Effective Date.
List below the Old Notes to which this Letter relates. If the space
provided below is inadequate, list the certificate numbers and principal amounts
on a separately executed schedule and affix the schedule to this Letter. The
minimum permitted tender is $1,000 principal amount of Old Notes; all tenders
must be in integral multiples of $1,000.
DESCRIPTION OF OLD NOTES TENDERED
- --------------------------------------------------------------------------------
Aggregate
Name(s) and Address(es) Principal
of Registered Holder(s) Certificate Amount Principal Amount
(Please fill in, if or Cede & Co. Represented Tendered* (must be
blank, exactly as name(s) Account By an integral multiple
appear(s) on Old Note(s) Number(s) Certificate(s) of $1,000)
- --------------------------------------------------------------------------------
Total:
- --------------------------------------------------------------------------------
* Unless otherwise indicated in the last column, and subject to the terms and
conditions of the Prospectus, you will be deemed to have tendered the entire
aggregate principal amount represented by the Old Notes indicated in the column
labeled "Aggregate Principal Amount Represented by Certificate(s)." See
Instruction 2.
- --------------------------------------------------------------------------------
This Letter must be used whether certificates for Old Notes are to be
forwarded herewith or whether guaranteed delivery procedures are to be used,
according to the procedures set forth in the Prospectus under the caption "The
Exchange Offer -- Guaranteed Delivery Procedures." Your bank or broker can
assist you in completing this form. The instructions included with this Letter
must be followed. Questions and requests for assistance or for additional copies
of the Prospectus, this Letter and the Notice of Guaranteed Delivery may be
directed to the Exchange Agent or the Company. See Instruction 10.
Holders of Old Notes who wish to tender and whose Old Notes are not
immediately available or who cannot deliver their Old Notes and all other
documents required hereby (other than this Letter) to the Exchange Agent on or
before the Expiration Date must tender Old Notes according to the guaranteed
delivery procedures set forth in the Prospectus under the caption "The Exchange
Offer -- Procedures for Tendering Old Notes" and "The Exchange Offer --
Guaranteed Delivery Procedures." See Instruction 1 below.
456
o CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND COMPLETE
THE FOLLOWING:
Name of Registered Holder(s): ____________________________________________
Name of Eligible Institution that Guaranteed Delivery: __________________
o 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 Copies Requested: ____________________
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
457
Ladies and Gentlemen:
Upon the terms of and subject to the conditions to the Exchange Offer,
the undersigned hereby tenders to the Company the principal amount of Old Notes
indicated above. Subject to, and effective upon, acceptance for exchange of the
Old Notes tendered herewith for Registered Notes, by executing this Letter the
undersigned hereby irrevocably sells, assigns and transfers to or upon the order
of the Company or its assignee all right, title and interest in and to all such
Old Notes tendered hereby, waives any and all rights with respect to the Old
Notes tendered hereby (including, without limitation, the undersigned's waiver
of any existing or past defaults and their consequences with respect to the Old
Notes) and releases and discharges any obligor or parent of any obligor of the
Old Notes from any and all claims the undersigned may have now, or may have in
the future, arising out of or related to the Old Notes, including, without
limitation, any claims that the undersigned is entitled to receive additional
principal or interest payments with respect to the Old Notes. The undersigned
hereby irrevocably constitutes and appoints the Exchange Agent the true and
lawful agent and attorney-in-fact of the undersigned with respect to such Old
Notes, with full power of substitution and resubstitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest) to
(a) deliver certificates representing such Old Notes, or transfer ownership of
such Old Notes on the account books maintained by the Depository, together, in
each such case, with all accompanying evidences of transfer and authenticity, to
or upon the order of the Company, (b) present such Old Notes for transfer on the
relevant security register and (c) receive all benefits or otherwise exercise
all rights of beneficial ownership of such Old Notes, all in accordance with the
terms of the Exchange Offer.
The undersigned acknowledges that this Exchange Offer is being made in
reliance on an interpretation by the staff of the Securities and Exchange
Commission (the "SEC") that the Registered Notes issued pursuant to the Exchange
Offer in exchange for the Old Notes may be offered for resale, resold and
otherwise transferred by holders thereof (other than broker-dealers, as set
forth below, and any such holder which is an "affiliate" of the Company within
the meaning of Rule 405 under the Securities Act) without compliance with the
registration and prospectus delivery provisions of the Securities Act provided
that such Registered Notes are acquired in the ordinary course of such holders'
business and such holders have no arrangement or understanding with any person
to participate in the distribution of such Registered Notes.
The undersigned understands that the tender of Old Notes for Registered
Notes provided hereby shall remain in full force and effect until such tender is
revoked in accordance with the procedures set forth in the Exchange Offer and
this Letter. The undersigned understands that a revocation of such tender will
not be effective following 5:00 p.m., New York City time, on the Expiration
Date. See Instruction No.3: "Withdrawal of Tenders."
By tendering, the undersigned hereby warrants that as a Holder, he, she
or it has full power and authority to tender, sell, assign and transfer the Old
Notes tendered hereby and when the same are accepted for exchange by the Company
or its assignee, the Company or its assignee will acquire good, marketable and
unencumbered title thereto, free and clear of all security interests, liens,
restrictions, claims, charges, encumbrances, conditional sales agreements or
other
458
obligations relating to the sale or transfer thereof, and will not be subject to
any adverse claim. The Holder further represents and warrants that he, she or it
owns the Old Notes being tendered hereby and is entitled to tender such Old
Notes.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent, the Depository or the Company, or its
assignee, to be necessary or desirable to complete the assignment, transfer and
purchase of the Old Notes tendered hereby pursuant to the Exchange Offer in
respect of such Old Notes. The undersigned has read and agrees to all of the
terms and conditions of the Exchange Offer. The tender of Old Notes by the
undersigned pursuant to this Letter will constitute a binding agreement between
the undersigned and the Company upon the terms and subject to the conditions of
the Exchange Offer.
Each Holder understands that the Registered Notes have been registered
under the Securities Act. The Holder further understands that any resale of the
Registered Notes absent compliance with the registration and Prospectus delivery
requirements of the Securities Act, depends in part upon, and the Registered
Notes are being issued in the Exchange Offer by the Company in reliance on, the
representations and warranties set forth below. Each Holder hereby represents,
warrants, and covenants to the Company, for himself, herself or itself, and for
any beneficial owner** As used herein, the term "beneficial owner" means the
person with investment power with respect to the Old Notes. of the Registered
Notes with respect to which such Holder is a registered holder, that:
(a) No Agreement to Participate in a Distribution. The Holder acknowledges
that neither the Holder of Old Notes nor any such other person is
participating in, intends to participate in or has an arrangement or
understanding with any person to participate in, the distribution of
such Registered Notes, and further, if the Holder is not a
broker-dealer or is a broker-dealer but will not receive Registered
Notes for its own account in exchange for Old Notes, neither the
Holder nor any such other person is engaged in or intends to
participate in a distribution of the Registered Notes; and
(b) Not an Affiliate. The Holder represents and warrants that neither the
Holder nor any such other person is an "affiliate" of the Company
within the meaning of Rule 405 under the Securities Act; or
(c) Participant in a Distribution or Affiliate. In the alternative, if the
tendering Holder tenders Old Notes with the intention of
participating, or for the purpose of participating, in the
distribution of the Registered Notes or if the tendering Holder is an
"affiliate" of the Company, such person acknowledges that he, she or
it may not rely upon certain interpretations by the staff of the
Securities and Exchange Commission described in the Prospectus, and
that, in the absence of an exemption therefrom, he, she or it must
comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any secondary resale
transaction, and any such secondary resale
- -----------------
* As used herein, the term "beneficial owner" means the person with
investment power with respect to the Old Notes.
459
transaction must be covered by an effective registration statement containing
the selling securityholder information required by Item 507 of Regulation S-K
under the Securities Act.
(d) Participating Broker-Dealers. If the tendering Holder is a broker-
dealer (whether or not it is also an "affiliate" of the Company within
the meaning of Rule 405 under the Securities Act) that will receive
Registered Notes for its own account in exchange for Old Notes, it (i)
represents that the Old Notes to be exchanged for the Registered Notes
were acquired by it as a result of market-making activities or other
trading activities, (ii) acknowledges that it will deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of such Registered Notes, and (iii)
acknowledges that such a secondary resale transaction should be
covered by an effective registration statement containing the selling
security holder information required by Item 507 of Regulation S- K.
By acknowledging that it will deliver and by delivering a prospectus
meeting the requirements of the Securities Act in connection with any
resale of such Registered Notes, the undersigned is not deemed to
admit that it is an "underwriter" within the meaning of the Securities
Act.
(e) Ordinary Course of Business. The Holder acknowledges that the
Registered Notes acquired pursuant to the Exchange Offer are being
obtained in the ordinary course of business of the person receiving
such Registered Notes, whether or not such person is such Holder.
(f) Reliance on Representations; Accuracy at Closing. The Holder
acknowledges that the Company and others will rely upon the truth and
accuracy of the foregoing acknowledgments, representations and
agreements and agrees that, if any of the acknowledgments,
representations or warranties deemed to have been made by it by its
tendering of the Old Notes pursuant to the Exchange Offer shall cease
to be accurate at any time prior to the consummation of the
transactions contemplated hereby, it shall promptly notify the
Company. If it is acquiring any Registered Notes as a fiduciary or
agent for one or more beneficial owners, it represents that it has
full power to make the foregoing acknowledgments, representations and
agreements on behalf of each such account.
(g) Authorization. The execution, delivery and performance of this Letter
of Transmittal has been duly authorized by all necessary corporate or
other action of each Holder. The acceptance of the terms of the
Exchange Offer constitute a valid and binding obligation of each
Holder, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
The undersigned understands that, upon acceptance by the Company of the
Old Notes tendered under the Exchange Offer, the undersigned will be deemed to
have accepted the Registered Notes and will not receive any cash payment of
interest on such Old Notes accrued from and after the date of issuance of the
Registered Notes as set forth in the Prospectus.
460
The undersigned understands that the Company may accept the
undersigned's tender at any time on or after the Expiration Date by delivering
oral or written notice of acceptance to the Exchange Agent. Tenders of Old Notes
may be withdrawn at any time prior to 5 p.m., New York City time, on the
Expiration Date.
The undersigned recognizes that, under certain circumstances and
subject to certain conditions to the Exchange Offer (which the Company may
waive) set forth in the Prospectus, the Company may not be required to accept
for exchange any of the Old Notes tendered or any Old Notes tendered after the
Expiration Date. The Old Notes not accepted for exchange will be returned to the
undersigned at the address set forth unless otherwise indicated under the
"Special Delivery Instructions" below.
All authority conferred or agreed by this Letter shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
under this Letter shall be binding upon his or her heirs, personal
representatives, successors and assigns. Tenders may be withdrawn only in
accordance with the procedures set forth in the Instructions contained in this
Letter and in the Prospectus.
The undersigned understands that the delivery and surrender of the Old
Notes is not effective, and the risk of loss of the Old Notes does not pass to
the Exchange Agent, until receipt by the Exchange Agent of this Letter, or a
facsimile hereof, duly completed and signed, together with all accompanying
evidences of authority in form satisfactory to the Company and any other
required documents. All questions as to validity, form and eligibility of any
surrender of Old Notes hereunder will be determined by the Company, in its sole
discretion, and such determination shall be final and binding on Holders.
Unless otherwise indicated under "Special Exchange Instructions" or
"Special Delivery Instructions" below, the Exchange Agent will deliver
Registered Notes (and, if applicable, a certificate for any principal amount of
Old Notes not exchanged) in the name of and to the undersigned at the address
set forth below his or her signature. The undersigned recognizes that the
Company has no obligation pursuant to the Special Exchange Instructions to
transfer any Old Notes from the name of the registered holder thereof if the
Company does not accept for exchange any of the principal amount of such Old
Notes.
461
PLEASE SIGN HERE (TO BE COMPLETED BY ALL EXCHANGING HOLDERS OF OLD
NOTES REGARDLESS OF WHETHER OLD NOTES ARE BEING PHYSICALLY
DELIVERED HEREWITH)
IMPORTANT -- READ CAREFULLY
TENDERING HOLDER(S) SIGN HERE
- --------------------------------------------------------------------------------
This authorization of tender must be executed by the registered Holder(s), or
the DTC Participant(s), in exactly the same manner as the name(s) of such
Holder(s) appear(s) on the Notes or the position listing of Cede & Co. If Notes
to which this tender relates are held of record by two or more joint registered
Holders, all such Holders must sign this authorization form. If signature is by
a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation, or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing and must submit proper evidence
satisfactory to the Company of such person's authority so to act. Certain
signatures on this authorization form must be guaranteed by a firm that is a
member of the National Association of Securities Dealers, Inc., or a member of a
registered national securities exchange or by a commercial bank or trust company
having an office in the United States (See Instruction 1).
- --------------------------------------------------------------------------------
- -------------------------------------- -----------------------------------
- -------------------------------------- -----------------------------------
Signature(s) of Owner(s) Date
or Authorized Signatory
Area Code and Telephone Number:
Taxpayer Identification or Social Security Number
Certain Signature(s) Must Be
Guaranteed by an Eligible -----------------------------------
Institution: (See Instruction 1) (Authorized Signature)
-----------------------------------
(Name, Title):
(Please Print)
-----------------------------------
(Name of Firm)
Date:______________________________
462
PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW. IF A PERSON HAS BEEN
INDICATED UNDER "SPECIAL EXCHANGE INSTRUCTIONS" BELOW, SUCH PERSON
MUST COMPLETE A SUBSTITUTE FORM W-9.
Must be signed by the registered holder(s) of Old Notes as their
name(s) appear(s) on certificate(s) for Old Notes or on a security position
listing, or by a person(s) authorized to become registered holder(s) by
endorsements and documents transmitted with this Letter. If signature is by
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 below.
Name(s):
___________________________________
(Please Print)
Capacity:__________________________
Address:
___________________________________
(Including Zip Code)
Certain Signature(s) Must Be
Guaranteed by an Eligible ___________________________________
Institution: (See Instruction 1) (Authorized Signature)
___________________________________
(Title)
___________________________________
(Name of Firm)
Date:______________________________
SPECIAL EXCHANGE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6) (See Instruction 6)
To be completed ONLY if certificates To be completed ONLY if certificates for
for Old Notes in a principal amount Old Notes in a principal amount not
not exchanged, or Registered Notes, exchanged, or Registered Notes, are to
are to be issued in the name of be sent to someone other than the person
someone other than the person or or persons whose signature(s) appears on
persons whose signature(s) appears the face of this Letter or to an address
on the face of this Letter or other than that shown in the box
issued to a record address different entitled "Description of Old Notes
from than that shown in the box Tendered" on the face of this Letter.
entitled "Description of Old Notes
Tendered" on the face of this Letter.
Name:_______________________________ Name:___________________________________
(Please Print) (Please Print)
____________________________________ ________________________________________
(Please Print) (Please Print)
Address:____________________________ Address:________________________________
____________________________________ ________________________________________
Zip Code Zip Code
____________________________________ ________________________________________
Employer Identification or Employer Identification or
Social Security No. Social Security No.
463
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Guarantee of Signatures. Signatures on this Letter need not be
guaranteed if the Old Notes tendered hereby are tendered (a) by the registered
Holder(s) thereof, unless such Holder has completed the box entitled "Special
Delivery Instructions" above, or (b) for the account of a firm or other entity
identified in Rule 17Ad under the Exchange Act that is a member of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc. or a commercial bank or trust company having an office in the
United States or any other Eligible Institution. In all other cases, all
signatures on this Letter must be guaranteed by an Eligible Institution. Persons
who are beneficial owners of Old Notes but are not registered Holders and who
seek to tender Old Notes should contact the registered Holder of such Old Notes
and instruct such registered Holder to tender on his behalf pursuant to the
Exchange Offer. See Instruction 6.
2. Requirements of Tender. This Letter is to be completed by Holders
either if certificates are to be forwarded herewith or if delivery of Old Notes
is to be made pursuant to the procedures for book-entry transfer set forth in
the Prospectus under the caption "The Exchange Offer -- Procedures for Tendering
Old Notes." For a registered Holder to properly tender Old Notes pursuant to the
Exchange Offer, a properly completed and duly executed Letter (or a facsimile
thereof), together with any signature guarantees and any other documents
required by these Instructions, must be received by the Exchange Agent at the
address set forth herein prior to 5:00 p.m., New York City time, on the
Expiration Date (to receive the Registered Notes), and either (i) certificates
representing such Old Notes must be received by the Depository at such address
or (ii) such Old Notes must be transferred pursuant to the procedures for
book-entry transfer described in the Exchange Offer under the caption, "The
Exchange Offer -- Procedures for Tendering Old Notes" and a book-entry
confirmation must be received by the Exchange Agent, in each case prior to 5:00
p.m., New York City time, on the Expiration Date (to receive the Registered
Notes). A Holder who desires to tender Old Notes and who cannot comply with
procedures set forth herein for tender on a timely basis or whose Old Notes are
not immediately available must comply with the guaranteed delivery procedures
described below.
In all cases, notwithstanding any other provision hereof, the exchange
of Registered Notes for Old Notes tendered and accepted for exchange pursuant to
the Exchange Offer will be made only after timely receipt by the Exchange Agent
of (i) certificates representing such Old Notes in proper form for transfer or a
book-entry confirmation with respect to such Old Notes and any other required
documentation, (ii) this Letter properly completed and duly executed, (iii) any
required signature guarantees and (iv) other documents required by this Letter.
Holders whose certificates representing Old Notes are not immediately
available or who cannot deliver their certificates and all other required
documents to the Exchange Agent or complete the procedures for book-entry
transfer prior to the Expiration Date, may tender their Old Notes by properly
completing and duly executing the Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedure set forth in the Prospectus under the caption "The
Exchange Offer -- Procedures for Tendering Old Notes." Pursuant to such
procedures, (a) the
464
tender must be made by or through an Eligible Institution; (b) a Notice of
Guaranteed Delivery, substantially in the form provided by the Company herewith,
properly completed and duly executed, must be received by the Exchange Agent as
provided below prior to 5:00 p.m., New York City time, on the Expiration Date,
and (c) the certificates representing all tendered Old Notes, or a book-entry
confirmation with respect to all tendered Old Notes, together with this Letter,
properly completed and duly executed, and any required signature guarantees, and
all other documents required by the Letter, are received by the Exchange Agent
within three New York Stock Exchange trading days after the date of execution of
the Notice of Guaranteed Delivery.
The method of delivery of certificates representing Old Notes, this
Letter, any required signature guarantees and any other required documents,
including delivery through the Depository, is at the option and risk of the
tendering Holder and delivery will be deemed made only when actually received by
the Exchange Agent. If delivery is by mail, registered mail with return receipt
requested, properly insured, is recommended and the mailing should be
sufficiently in advance of the Expiration Date to ensure timely delivery.
All tendering registered Holders, by execution of this Letter, waive
any right to receive any notice of the acceptance of their Old Notes for
purchase.
Any financial institution in the Depository may make a book-entry
delivery of Old Notes by causing the Depository to transfer Old Notes to the
Exchange Agent's account. However, although delivery of Old Notes may be
effected through book-entry transfer at the Depository, a properly completed and
executed Letter of Transmittal, and any other documents required by this Letter
of Transmittal, must, in any case, be transmitted to, and received by, the
Exchange Agent, at its address set forth on the front cover, prior to the
Expiration date. Old Notes will not be deemed surrendered until the Letter of
Transmittal is received by the Exchange Agent. DELIVERY OF A LETTER OF
TRANSMITTAL TO THE DEPOSITORY WILL NOT CONSTITUTE VALID DELIVERY TO THE EXCHANGE
AGENT.
3. Withdrawal of Tenders. Old Notes tendered in the Exchange Offer may
be withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date by the registered Holder thereof as of the Record Date. Old
Notes may not be withdrawn at any time after the Expiration Date. In addition,
tenders of Old Notes may be validly withdrawn if the Exchange Offer is
terminated without any Old Notes being purchased thereunder. In the event of a
termination of the Exchange Offer, the Old Notes tendered pursuant to the
Exchange Offer will be promptly returned to the tendering Holder.
Any registered Holder of Old Notes who has tendered Old Notes pursuant
to the Exchange Offer or who succeeds to the record ownership of Old Notes in
respect of which such tenders have previously been given may (i) withdraw such
Old Notes prior to 5:00 p.m., New York City time, on the Expiration Date. To be
effective, a registered Holder of Old Notes held in physical form must provide a
written or facsimile transmission notice of withdrawal of a tender which notice
must contain (i) the name of the registered Holder of the Old Notes to be
withdrawn, (ii) a description of the Old Notes to be withdrawn, (iii) the
certificate numbers shown on the particular certificates representing such Old
Notes, (iv) the aggregate principal
465
amount represented by such Old Notes, (v) the signature of such registered
Holder of the Old Notes executed in the same manner as the original signature on
the Letter (including any signature guarantee (if such original signature was
guaranteed)); and (vi) if such Old Notes were tendered by book-entry transfer,
the registered Holder's book-entry confirmation. For a withdrawal to be
effective, a registered Holder of Old Notes held with the Depository must (i)
call such registered Holder's broker and instruct such broker to withdraw such
tender of Old Notes by debiting the Exchange Agent's account at the Depository
of all Old Notes to be withdrawn; and (ii) instruct such broker to provide a
written telegraphic or facsimile transmission notice of withdrawal to the
Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date.
Such notice of withdrawal shall contain (i) the name of the person who tendered
the Old Notes; (ii) a description of the Old Notes to be withdrawn; and (iii)
the aggregate principal amount represented by such Old Notes. A purported notice
of withdrawal which lacks any of the required information will not be an
effective withdrawal of a tender previously made. If the Old Notes to be
withdrawn have been delivered or otherwise identified to the Exchange Agent, a
signed notice of withdrawal is effective immediately upon receipt by the
Exchange Agent of written or facsimile transmission of the notice of withdrawal
even if physical release is not yet effected.
The Company or its assignee will have the right, which may be waived,
to reject a defective tender of Old Notes as invalid and ineffective. If the
Company, or its assignee, waives its right to reject a defective tender of Old
Notes, the registered Holder will be entitled to receive Registered Notes if
such Old Notes were delivered prior to 5:00 p.m., New York City time, on the
Expiration Date. Any Old Notes that have been tendered pursuant to the Exchange
Offer but that are not purchased thereby will be returned to the registered
Holder thereof without cost to such registered Holder as soon as practicable
following the Expiration Date.
If the Company is delayed in its acceptance for exchange of any Old
Notes (whether before or after the Company's acceptance for payment of such Old
Notes), or the Company extends the Exchange Offer or is unable to accept for
payment or pay for Old Notes pursuant to the Exchange Offer for any reason then,
without prejudice to the Company's rights hereunder, tendered Old Notes may be
retained by the Exchange Agent on behalf of the Company and may not be withdrawn
except to the extent that tendering Holders of such Old Notes are entitled to
withdrawal rights as set forth herein.
A valid withdrawal of a tender of Old Notes tendered pursuant to the
Exchange Offer may not be rescinded and any Old Notes properly withdrawn will
not be deemed to be validly tendered for purposes of the Exchange Offer.
However, Old Notes withdrawn from the Exchange Offer may be re-tendered by
repeating one of the procedures described in Instruction 2 above at any time
prior to 5:00 p.m., New York City time, on the Expiration Date. Any registered
Holder who properly withdraws Old Notes tendered pursuant to the Exchange Offer
and does not properly re-tender such Notes pursuant to the Exchange Offer prior
to 5:00 p.m., New York City time, on the Expiration Date will not receive the
Registered Notes.
All questions as to the validity (including time of receipt) of notices
of withdrawal will be determined by the Company, in its sole discretion, whose
determination will be final and binding. None of the Company, the Exchange
Agent, the Trustee, or any other person is under
466
any duty to give notification of any defects or irregularities in any notice of
withdrawal or incur any liability for failure to give any such notification.
4. Partial Tenders. If less than the entire principal amount of any Old
Notes evidenced by a submitted certificate is tendered, the tendering Holder
must fill in the principal amount tendered in the fourth column of the box
entitled "Description of Old Notes Tendered" above. The entire principal amount
of all Old Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated. If the entire principal amount of all Old
Notes is not tendered, certificates for the principal amount of Old Notes not
tendered and for the Registered Notes will be sent to the Holder, unless
otherwise provided in the appropriate box on this Letter, promptly after the Old
Notes are accepted for exchange.
5. Signatures on This Letter; Bond Powers and Endorsements. If this
Letter is signed by the registered Holder(s) of the Old Notes tendered hereby,
the signature(s) must correspond exactly with the name(s) as written on the face
of the certificate(s) without alteration, enlargement or any change whatsoever.
If this Letter is signed by a DTC Participant, the signature must correspond
with the names indicated in the position listing of Cede & Co.
If any of the Old Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter. If any tendered Old
Notes are registered in different names on several certificates, it will be
necessary to complete, sign and submit as many separate Letters as there are
names in which certificates are held.
If this Letter 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 proper evidence satisfactory to the
Company or its assignee of their authority so to act must be submitted, unless
waived by the Company or its assignee.
If this Letter is signed by the registered Holder(s) of the Old Notes
listed and tendered hereby, no endorsements of certificates or separate bond
powers are required unless certificates for Registered Notes offered in exchange
or for Old Notes not tendered or not accepted for purchase are to be issued to,
a person other than the registered Holder(s). Signatures on such certificates
must be guaranteed by an Eligible Institution (unless signed by an Eligible
Institution).
If this Letter is signed by a person other than the registered
Holder(s) of the Old Notes listed, the certificates representing such Old Notes
must be properly endorsed for transfer by the registered Holder or be
accompanied by a properly completed bond power from the registered Holder in
form satisfactory to the Company, if such Old Notes are being tendered into the
Exchange Offer, with signatures on the endorsement or bond power guaranteed by
an Eligible Institution.
6. Special Delivery Instructions. If certificates for the Registered
Notes are to be returned to a person other than the person(s) signing this
Letter or to an address other than that shown above, the appropriate boxes on
this Letter entitled "Special Delivery Instructions" should
467
be completed. olders of Old Notes delivering Old Notes by book-entry transfer
may request that Old Notes not accepted for payment be credited to such account
maintained at the Depository as such registered Holder(s) may designate hereon.
If no such instructions are given, such Old Notes not accepted for payment will
be returned by crediting the account at the Book-Entry Transfer Facility. 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. Waiver of Conditions to the Exchange Offer. The Company, in its sole
discretion, reserves the right to waive any and all conditions to the Exchange
Offer described in the Prospectus under "The Exchange Offer -- Conditions to the
Exchange Offer" in the case of any Old Notes tendered, in whole or in part from
time to time.
8. Mutilated, Lost, Stolen or Destroyed Notes. Any Holder of Old Notes
whose Old Notes have been mutilated, lost, stolen or destroyed should contact
the Trustee or the Exchange Agent at the addresses indicated above for further
instructions. CONFIDENTIAL DRAFT
9. Copies. Questions relating to the procedure for tendering and
requests for additional copies of the Prospectus, this Letter and Notice of
Guaranteed Delivery may be directed to the Exchange Agent, attention: Jacqueline
Rivera; or to the Dealer Manager, Jefferies & Company, Inc., attention: Leo
Chang, (212) 903-2722. Requests for assistance may also be delivered to the
tendering Holder's broker, dealer, commercial bank or trust company.
10. Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of tendered Old Notes
will be resolved by the Company, in its sole discretion, whose determination
will be final and binding. The Company reserves the absolute right to reject any
or all tenders that are not in proper form or the acceptance of which may, in
the opinion of counsel for the Company, be unlawful. Conditional, irregular or
contingent tenders will be considered defective. The Company also reserves the
absolute right to waive the conditions of the Exchange Offer as set forth in the
Exchange Offer under "The Exchange Offer -- Conditions to the Exchange Offer"
and any irregularities or conditions of tender as to particular Old Notes. The
Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in this Letter) will be, in its sole discretion,
final and binding. Unless waived, any irregularities in connection with tenders
of Old Notes must be cured within such time as the Company shall determine. The
Company and Exchange Agent shall not be under any duty to give notification of
defects in such tenders and shall not incur liabilities for failure to give such
notification. Tenders of Old Notes will not be deemed to have been made until
such irregularities have been cured or waived by the Company. Any Old Notes
received by the Exchange Agent that are not properly tendered and as to which
the irregularities have not been cured or waived by the Company will be returned
by the Exchange Agent to the tendering Holder, unless otherwise provided in the
Letter, as soon as practicable following the Expiration Date or termination of
the Exchange Offer.
11. Inadequate Space. If the space provided herein is inadequate, the
aggregate principal amount of the Old Notes being tendered and the security
numbers (if available) should be listed on a separate schedule.
468
12. 31% Backup Withholding; Substitute Form W-9. Under U.S. federal
income tax law, a Holder whose tendered Old Notes are accepted for exchange is
required, unless an exemption applies, to provide the Exchange Agent with such
Holder's correct taxpayer identification number ("TIN") on Substitute Form W-9
of this Letter and certify, under penalties of perjury, that such number is
correct and he or she is not subject to backup withholding. If the Exchange
Agent is not provided with the correct TIN, the Internal Revenue Service (the
"IRS") may subject the Holder or other payee to a $50 penalty. In addition,
payments, if any, to such Holders or other payees with respect to the Old Notes
may be subject to 31% backup withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering Holder 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 2 is checked, the
Holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below Substitute Form W-9 in order to avoid backup
withholding. Notwithstanding that the box in Part 2 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the
Exchange Agent will withhold 31% of all payments made prior to the time a
properly certified TIN is provided to the Exchange Agent.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Old Notes or of the last transferee appearing on the transfers attached to,
or endorsed on, the Old Notes. If the Old Notes are registered in more than one
name or are 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.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below and check the box in Part 3 of
Substitute Form W-9 for "exempt," to avoid possible erroneous backup
withholding. A foreign person may qualify as an exempt recipient by submitting a
properly completed IRS Form W-8, signed under penalties of perjury, attesting to
that Holder's exempt status. Please consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which Holders are exempt from backup withholding.
Backup withholding is not an additional U.S. federal income tax. Rather,
the U.S. federal income tax liability of a person 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.
469
TO BE COMPLETED BY ALL EXCHANGING HOLDERS OF OLD NOTES
If a person has been indicated under "Special Exchange Instructions,"
such person must complete a substitute Form W-9 (See Instruction 13 and the
enclosed Guidelines for Certificates of Taxpayer Identification Number on
Substitute Form W-9.)
- --------------------------------------------------------------------------------
Part 1--PLEASE PROVIDE YOUR TIN TIN:_____________________
IN THE BOX AT RIGHT AND Social Security Number
CERTIFY BY SIGNING AND or
DATING BELOW Employer Identification
Number
Part 2--TIN Applied For o (SIGN THIS FORM AND THE
SUBSTITUTE CERTIFICATION OF AWAITING
TAXPAYER IDENTIFICATION
NUMBER BELOW)
Form W-9 Part 3--Exempt o (See enclosed Guidelines for additional
information and SIGN THIS FORM)
Department of
the Treasury
Internal Revenue
Service CERTIFICATION:
UNDER THE PENALTIES OF PERJURY,
I CERTIFY THAT:
Payor's Request
(1) the number shown on this form is my correct Taxpayer
for Taxpayer Identificatin Number (or I am waiting for a number to
Identification be issued to me),
Number ("TIN")
and Certification (2) I am not subject to backup withholding either because:
(a) I am exempt from backup withholding, or
(b) 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
(c) the IRS has notified me that I am no longer
subject to backup withholding, and
(3) any other information provided on this form is true
and correct.
SIGNATURE ____________________________ DATE _______________
- --------------------------------------------------------------------------------
You must cross out item (2) of the above certification if you have been notified
by the IRS that you are subject to backup withholding because of underreporting
of interest or dividends on your tax return and you have not been notified by
the IRS that you are no longer subject to backup withholding.
- --------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administrative 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 the exchange, 31 percent
of all reportable payments made to me thereafter will be withheld until I
provide the number and that, if I do not provide my taxpayer identification
number within 60 days, such retained amounts shall be remitted to the Internal
Revenue Service as backup withholding and 31 percent and all reportable payments
made to me thereafter will be withheld and remitted to the Internal Revenue
Service until I provide a taxpayer identification number.
SIGNATURE _________________________________________ DATE _____________________
- ----------
IMPORTANT: This Letter or a facsimile hereof (together with Old Notes and
all other required documents) or a Notice of Guaranteed Delivery
must be received on or prior to the Expiration Date (as defined
in the Prospectus).
470
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
A. TIN--The Taxpayer Identification Number for most individuals is your social
security number. Refer to the following chart to determine the appropriate
number:
- ----------------------------------- ----------------------------------------
For this type Give the SOCIAL For this type Give The EMPLOYER
of account SECURITY number of account: IDENTIFICAION
of (179) number of ____
- ----------------------------------- ----------------------------------------
1. Individual The individual 6. Sole The owner(3)
proprietorship
2. Two or more The actual owner 7. A valid trust, Legal entity (4)
individuals of the account or, estate, or
(joint if combined funds, pension trust
account) any one of the
individuals (1)
3. Custodian The minor (2) 8. Corporate The corporation
account of
a minor
(Uniform
Gift to
Minors Act)
4. a. The usual The grantor- 9. Association, The organization
revocable trustee (1) club, religious,
savings trust charitable,
(grantor is educational or
also trustee) other tax-exempt
organization
b. So-called The actual
trust account owner (1)
that is not a
legal or valid
trust under
state law
5. Sole
proprietorship The owner (3) 10. Partnership The partnership
11. A broker or The broker
registered or nominee
nominee
12. Account with The public entity
the Department
of Agriculture
in the name of
a public entity
(such as a
state or local
government,
school district
or prison) that
receives
agricultural
program payments
- ----------------------------------- ----------------------------------------
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security number, that person's
number must be furnished.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Show the individual's name. You may also enter your business name or "doing
business as" name. You may use either your Social Security number or your
employer identification number (if you have one).
(4) List first and circle the name of the legal trust, estate, or pension trust.
(Do not furnish the taxpayer identification number of the personal
representative or trustee unless the legal entity itself is not designated in
the account title.)
Note: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
471
B. Exempt Payees --Payees specifically exempted from backup withholding on ALL
payments include the following:
A corporation.
A financial institution.
An organization exempt from tax under section 501(a), or an individual
retirement plan.
The United States or any agency or instrumentality thereof.
A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
An international organization or any agency or instrumentality thereof.
A registered dealer in securities or commodities registered in the U.S. or
a possession of the U.S.
A real estate investment trust.
A common trust fund operated by a bank under section 584(a).
An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
An entity registered at all times under the Investment Company Act of 1940.
A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
Payments to nonresident aliens subject to withholding under section 1441.
Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
Payments of patronage dividends where the amount received is not paid in
money.
Payments made by certain foreign organizations.
Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
Payments described in section 6049(b)(5) to non-resident aliens.
Payments on tax-free covenant bonds under section 1451.
Payments made by certain foreign organizations.
Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding.
FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER,
WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO THE PAYER. IF THE
PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE
FORM.
Certain payments other than interest, dividend, and patronage
dividends, that are not subject to information reporting are also not subject to
backup withholding. For details, see the regulations under sections 6041,
6041(a), 6045 and 6050A.
C. Obtaining a Number -- If you do not have a taxpayer identification number
or you do not know your number, obtain Form SS- 5, application for a Social
Security Number, or Form SS-4, Application for Employer Identification
Number, at the local office of the Social Security Administration or the
Internal Revenue Service and apply for a number.
D. Privacy Act Notice -- Section 6109 requires most recipients of dividend,
interest or other payments to give taxpayer identification numbers to
payers who must report the payments to IRS. IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Payers must generally withhold
31% of taxable-interest, dividend, and certain other payments to a payee
who does not furnish a taxpayer identification number. Certain penalties
may also apply.
472
E. Penalties.
(1) Penalty for failure to furnish taxpayer identification number. If you
fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure
is due to reasonable cause and not to willful neglect.
(2) Civil penalty for false information with respect to withholding. If you
make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) Criminal penalty for falsifying information. Falsifying certifications
or affirmations may subject you to criminal penalties including fines
and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.