LETTER OF TRANSMITTAL AND CONSENT
To Tender and to Consent in Respect
of
Liquid Yield Option Notes Due 2004 (Zero Coupon - Subordinated)
CUSIP N0. 825039 AC 4
of
SHONEY'S, INC.
Pursuant to the Purchase Offer and Consent Solicitation Statement
dated March 27, 2000
THE DEPOSITARY FOR THE OFFER IS:
THE BANK OF NEW YORK
BY MAIL, OVERNIGHT COURIER OR HAND:
101 Barclay Street
Floor 7 East
New York, New York 10286
Attn: Reorganization Section, Kin Lau
By Facsimile for Eligible Institutions: (212) 815-6339
To Confirm by Telephone: (212) 815-3750
- -----------------------------------------------------------------------------
THIS OFFER WILL EXPIRE AT 11:59 P.M., NEW YORK CITY TIME, ON APRIL 24, 2000,
UNLESS EXTENDED (SUCH TIME AND DATE, AS IT MAY BE EXTENDED, THE "EXPIRATION
DATE"). HOLDERS OF LYONS MUST TENDER THEIR LYONS ON OR PRIOR TO THE
EXPIRATION DATE TO RECEIVE THE TENDER OFFER CONSIDERATION. THE CONSENT
SOLICITATION WITH RESPECT TO THE LYONS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON _________, 2000, UNLESS EXTENDED (SUCH TIME AND DATE, AS IT MAY
BE EXTENDED, THE "LYONS CONSENT DEADLINE"). TO RECEIVE A CONSENT PAYMENT,
HOLDERS OF LYONS MUST TENDER THEIR LYONS AND PROVIDE THEIR CONSENTS TO THE
PROPOSED AMENDMENTS (AND NOT HAVE REVOKED SUCH CONSENTS) AT OR PRIOR TO THE
LYONS CONSENT DEADLINE.
- -----------------------------------------------------------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL AND CONSENT TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA A FAX NUMBER
OTHER THAN AS LISTED ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
CAPITALIZED TERMS USED HEREIN AND NOT DEFINED SHALL HAVE THE MEANING
ASCRIBED TO THEM IN THE PURCHASE OFFER AND CONSENT SOLICITATION STATEMENT.
By execution hereof, the undersigned acknowledges receipt of the
Purchase Offer and Consent Solicitation Statement dated March 27, 2000 (as
the same may be amended from time to time, the "Purchase Offer") of Shoney's,
Inc., a Tennessee corporation (the "Company"), and this Letter of Transmittal
and Consent and instructions thereto (the "Letter of Transmittal and
Consent"), which together constitute (i) the offer to purchase (the "Offer")
by the Company for all of its outstanding Liquid Yield Option Notes due 2004
(Zero Coupon - Subordinated) (the "LYONs"), upon the terms and subject to the
conditions set forth in the Purchase Offer, and (ii) the Company's
solicitation (the "Solicitation") of consents (the
"Consents") from holders of the LYONs (each, a "Holder" and, collectively,
the "Holders") to certain proposed amendments described in the Purchase Offer
(the "Proposed Amendments") to the Indenture dated as of April 1, 1989,
between the Company and The Bank of New York, as successor to Sovran
Bank/Central South, as trustee (the "Trustee"), pursuant to which the LYONs
were issued (the "Indenture"). Holders who tender LYONs pursuant to the
Offer after the first distribution of definitive consent solicitation
material for the LYONs are obligated to consent to the Proposed Amendments.
The Offer is conditioned on, among other things, the receipt of the
requisite number of Consents at or prior to 11:59 P.M., New York City time,
on the Expiration Date and such Consents having not been revoked as more
fully described in the Purchase Offer under the caption "The Tender Offers
and Consent Solicitations -Terms and -Conditions." The Company reserves the
right to waive any one or more of the conditions to the Offer. A First
Supplemental Indenture will be executed upon the satisfaction of the Consent
Condition and, upon such execution, the First Supplemental Indenture will
become effective. The First Supplemental Indenture will provide that the
Proposed Amendments will not become operative unless and until validly
tendered LYONs are purchased pursuant to the Offer. If the Offer is
terminated or withdrawn, or if no LYONs are purchased pursuant to the Offer
for any reason, then the Proposed Amendments contained in the Supplemental
Indenture will not become operative. The Purchase Offer enclosed herewith
contains a more complete description of the Offer and related solicitation of
Consents and the conditions thereof.
THE INSTRUCTIONS CONTAINED HEREIN AND IN THE PURCHASE OFFER (AS DEFINED
BELOW) SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL AND CONSENT
IS COMPLETED.
This Letter of Transmittal and Consent is to be completed by a Holder if
(i) certificates representing LYONs are to be physically delivered to the
Depositary herewith by such Holder or (ii) tender of LYONs is to be made by
book-entry transfer to the Depositary's account at DTC pursuant to the
procedures set forth under the caption "The Tender Offers and Consent
Solicitations-Book-Entry Delivery of the Notes" and instructions are not
being transmitted through the DTC Automated Tender Offer Program ("ATOP").
Holders of LYONs who are tendering by book-entry transfer to the
Depositary's account at DTC can execute their tender through ATOP. DTC
participants that are accepting the Offer may transmit their acceptance to
DTC, which will verify the acceptance and execute a book-entry delivery to
the Depositary's account at DTC. DTC will then send an Agent's Message to the
Depositary for its acceptance. Delivery of the Agent's Message by DTC will
satisfy the terms of the Offer in lieu of execution and delivery of a Letter
of Transmittal and Consent by the participant identified in the Agent's
Message. Accordingly, this Letter of Transmittal and Consent need not be
completed by a Holder tendering through ATOP.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
Your bank or broker can assist you in completing this form. The
instructions included with this Letter of Transmittal and Consent must be
followed. Questions and requests for assistance or for additional copies of
the Purchase Offer, this Letter of Transmittal and Consent and the Notice of
Guaranteed Delivery and Consent may be directed to the Information Agent.
See Instruction 12 below.
2
- ----------------------------------------------------------------------------
TENDER OF LYONs AND CONSENT TO AMENDMENTS
- -----------------------------------------------------------------------------
[ ] CHECK HERE IF CERTIFICATES REPRESENTING TENDERED LYONs ARE ENCLOSED
HEREWITH.
[ ] CHECK HERE IF TENDERED LYONs ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY WITH DTC
AND COMPLETE THE
FOLLOWING:
Name of Tendering Institution:______________________________________________
Account Number:_____________________________________________________________
Transaction Code Number:____________________________________________________
[ ] CHECK HERE IF TENDERED LYONS ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY AND CONSENT PREVIOUSLY DELIVERED TO THE
DEPOSITARY AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s):_______________________________________________
Window Ticket No. (if any):_________________________________________________
Date of Execution of Notice of Guaranteed Delivery and Consent:_____________
Name of Eligible Institution that Guaranteed Delivery:______________________
If Delivered by Book-Entry Transfer:
Name of Tendering Institution:_________________________________________
Account Number with DTC:_______________________________________________
Transaction Code Number:_______________________________________________
- -----------------------------------------------------------------------------
HOLDERS WHO TENDER LYONS IN THE OFFER AFTER THE FIRST DISTRIBUTION OF
DEFINITIVE CONSENT SOLICITATION MATERIAL FOR THE LYONS ARE OBLIGATED TO
CONSENT TO THE PROPOSED AMENDMENTS. DELIVERY OF LYONS BY BOOK-ENTRY TRANSFER
OR PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND CONSENT WILL BE DEEMED TO
CONSTITUTE A CONSENT TO THE PROPOSED AMENDMENTS WITH RESPECT TO SUCH LYONS
TENDERED.
3
List below the LYONs to which this Letter of Transmittal and Consent
relates. If the space provided is inadequate, list the certificate numbers
and principal amounts at maturity on a separately executed schedule and affix
the schedule to this Letter of Transmittal and Consent. Tenders of LYONs
will be accepted only in principal amounts at maturity equal to $1,000 or
integral multiples thereof. No alternative, conditional or contingent tenders
will be accepted.
- -------------------------------------------------------------------------------------------------------
DESCRIPTION OF LYONs
- -------------------------------------------------------------------------------------------------------
PRINCIPAL AMOUNT
AT MATURITY
TENDERED PRIOR TO
THE FIRST
DISTRIBUTION OF
NAME(S) AND ADDRESS(ES) OF DEFINITIVE CONSENT
REGISTERED HOLDER(S) OR NAME PRINCIPAL AMOUNT SOLICITATION
OF DTC PARTICIPANT AND AGGREGATE AT MATURITY MATERIAL FOR
PARTICIPANT'S DTC ACCOUNT PRINCIPAL TENDERED AND AS TO LYONS FOR WHICH
NUMBER IN WHICH LYONS ARE HELD CERTIFICATE AMOUNT AT MATURITY WHICH CONSENTS ARE CONSENTS ARE TO BE
(PLEASE FILL IN BLANK) NUMBER(S)* REPRESENTED GIVEN** GIVEN
- ------------------------------ ----------- ------------------ ------------------- ------------------
- -------------------------------------------------------------------------------------------------
TOTAL PRINCIPAL AMOUNT AT MATURITY OF LYONs
- -------------------------------------------------------------------------------------------------
* Need not be completed by Holders tendering by book-entry transfer.
- -------------------------------------------------------------------------------------------------
** Unless otherwise specified, it will be assumed that the entire aggregate principal amount at
maturity represented by the LYONs described above is being tendered and a Consent with respect
thereto will be given. A Holder tendering LYONs after the first distribution of definitive
consent solicitation material for the LYONs is required to Consent to the Proposed Amendments
with respect to all LYONs tendered by such Holder except for LYONs tendered prior to the first
distribution of definitive consent solicitation material for the LYONs
- -------------------------------------------------------------------------------------------------
The names and addresses of the registered Holders should be printed, if
not already printed above, exactly as they appear on the certificates
representing LYONs tendered hereby.
4
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to Shoney's, Inc. (the "Company"), upon the
terms and subject to the conditions set forth in its Purchase Offer and Consent
Solicitation Statement dated March 27, 2000 (the "Purchase Offer"), receipt of
which is hereby acknowledged, and in accordance with this Letter of Transmittal
and Consent, the principal amount at maturity of LYONs indicated in the table
above entitled "Description of LYONs" under the column heading "Principal
Amount at Maturity Tendered and as to which Consents are Given" or delivers
consents with respect to the principal amount at maturity of LYONs indicated
in the table above entitled "Description of LYONs" under the column heading
"Principal Amount at Maturity Tendered Prior to the First Distribution of
Definitive Consent Solicitation Material For LYONs and as to which Consents
are Given" (or, if nothing is indicated therein, tenders and delivers consents
with respect to the entire aggregate principal amount at maturity represented
by the LYONs described in such table) and consents to the Proposed Amendments
with respect thereto. The undersigned acknowledges and agrees that the tender
of LYONs made hereby may not be withdrawn, nor may the Consent made hereby be
revoked, except in accordance with the procedures set forth in the Purchase
Offer. Terms used herein and not defined herein shall have the meanings
ascribed to them in the Purchase Offer.
Subject to, and effective upon, the acceptance for purchase of, and
payment for, the principal amount at maturity of LYONs tendered herewith in
accordance with the terms and subject to the conditions of the Offer, 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 LYONs tendered
hereby. 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 LYONs, 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 LYONs and all evidences of transfer and
authenticity to, or transfer ownership of such LYONs on the account books
maintained by DTC to, or upon the order of, the Company, (ii) present such
LYONs for transfer of ownership on the books of the Company, (iii) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
LYONs, and (iv) deliver to the Company and the Trustee this Letter of
Transmittal and Consent as evidence of the undersigned's consent to the
Proposed Amendments and as certification that the Consent Condition has been
satisfied, all in accordance with the terms and conditions of the Offer as
described in the Purchase Offer.
The undersigned acknowledges and agrees that, by the execution and
delivery hereof, the undersigned is consenting to the Proposed Amendments
(with respect to the principal amount at maturity of LYONs tendered hereby or
tendered prior to the first distribution of definitive consent solicitation
material for the LYONs and for which consents are being given hereby) as
permitted by the Indenture relating to the LYONs and hereby also consents to
the execution of the Supplemental Indenture effecting such Proposed
Amendments. The undersigned acknowledges and agrees that the Consent provided
hereby shall remain in full force and effect unless and until such Consent is
revoked in accordance with the procedures set forth in the Purchase Offer and
that after the Trustee receives notice from the Company of satisfaction of
the Consent Condition in accordance with the Indenture and the Supplemental
Indenture is executed, such Consent may not be revoked (and agrees that it
will not attempt to do so).
If the undersigned is not the registered Holder of the LYONs listed in
the box above labeled "Description of LYONS" under the column heading
"Principal Amount at Maturity Tendered and as to which Consents are Given" or
under the column heading "Principal Amount at Maturity Tendered Prior to the
First Distribution of Definitive Consent Solicitation Material for LYONs and
as to which Consents are Given" (or, if nothing is indicated in such columns,
with respect to the entire aggregate principal amount at maturity represented
by the LYONs described in such table), such registered Holder's legal
representative or attorney-in-fact, then in order to validly consent, the
undersigned has obtained a properly completed irrevocable proxy that
authorizes the undersigned (or the undersigned's legal representative or
attorney-in-fact) to deliver a Consent in respect of such LYONs on behalf of
the Holder thereof, and such proxy is being delivered with this Letter of
Transmittal and Consent.
The undersigned acknowledges and agrees that a tender of LYONs pursuant
to any of the procedures described in the Purchase Offer and in the
instructions hereto and an acceptance of such LYONs by the Company will
constitute a binding
5
agreement between the undersigned and the Company upon the terms and subject
to the conditions of the Offer. For purposes of the Offer, the undersigned
understands that validly tendered LYONs (or defectively tendered LYONs with
respect to which the Company has, or has caused to be, waived such defect)
will be deemed to have been accepted if, as and when the Company gives oral
or written notice thereof to 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 at least a majority in aggregate principal
amount at Maturity of the LYONs and a 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 LYONs
tendered hereby and that when such tendered LYONs are accepted for purchase
and payment 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 will, upon request,
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 LYONs tendered hereby, to perfect the undersigned's Consent
to the Proposed Amendments or to complete the execution of the Supplemental
Indenture.
All authority conferred or agreed to be conferred by this Letter of
Transmittal and Consent 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, under certain circumstances and
subject to the certain conditions of the Offer (each of which the Company may
waive) set forth in the Purchase Offer, the Company may not be required to
accept for purchase any of the LYONs tendered (including any LYONs tendered
after the Expiration Date). Any LYONs not accepted for purchase will be
returned promptly to the undersigned at the address set forth above unless
otherwise indicated under "A. Special Issuance/Delivery Instructions" below.
The undersigned understands that the delivery and surrender of the LYONs
is not effective, and the risk of loss of the LYONs does not pass to the
Depositary, until receipt by the Depositary of this Letter of Transmittal and
Consent, 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 the form
of all documents and the validity (including time of receipt) and acceptance
of tenders and withdrawals of LYONs 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 "A. Special Issuance/Delivery
Instructions," the undersigned hereby request(s) that any LYONs representing
principal amounts at maturity not tendered or not accepted for purchase be
issued in the name(s) of, and delivered to, the undersigned (and in the case
of LYONs tendered by book-entry transfer, by credit to the account of DTC).
Unless otherwise indicated herein under "B. Special Payment Instructions,"
the undersigned hereby request(s) that any checks for payment to be made in
respect of the LYONs tendered hereby in connection with the Offer be issued
to the order of, and delivered to, the undersigned.
In the event that the "A. Special Issuance/Delivery Instructions" box is
completed, the undersigned hereby request(s) that any LYONs representing
principal amounts at maturity not tendered or not accepted for purchase be
issued in the name(s) of, and be delivered to, the person(s) at the
address(es) therein indicated. The undersigned recognizes that the Company
has no obligation pursuant to the "A. Special Issuance/Delivery Instructions"
box to transfer any LYONs from the names of the registered holder(s) thereof
if the Company does not accept for purchase any of the principal amount at
maturity of such LYONs so tendered. In the event that the "B. Special Payment
Instructions" box is completed, the undersigned hereby request(s) that
payment to be made in respect of the LYONs tendered hereby be issued in the
name(s) of, and be delivered to, the person(s) at the address(es) therein
indicated.
6
- ------------------------------------------------- -----------------------------------------------
[ A. SPECIAL ISSUANCE/DELIVERY ] [ B. SPECIAL PAYMENT ]
[ INSTRUCTIONS ] [ INSTRUCTIONS ]
[ (See Instructions 3, 4, 7 and 9) ] [ (See Instruction 9) ]
[_____________________________________________ ] [____________________________________________ ]
[ To be completed ONLY if LYONs in a principal ] [To be completed ONLY if payment is to be ]
[ amount at maturity not tendered or not ] [made in the name of someone other than the ]
[ accepted for purchase are to be issued in the ] [person(s) whose signature(s) appears within ]
[ name of someone other than the person(s) whose] [this Letter of Transmittal and Consent or ]
[ signature(s) appear(s) within this Letter of ] [sent to an address different from that shown ]
[ Transmittal and Consent or sent to an address ] [in the box entitled "Description of LYONs" ]
[ different from that shown in the box entitled ] [within this Letter of Transmittal and Consent.]
[ "Description of LYONs " within this Letter of ] [ ]
[ Transmittal and Consent, or if LYONs tendered ] [ Name_______________________________________ ]
[ by book-entry transfer that are not accepted ] [ (Please Print) ]
[ for purchase are to be credited to an account ] [ ]
[ maintained at DTC other than the one ] [ Address____________________________________ ]
[ designated above. ] [ ]
[ ] [ ]
[ ] [ ___________________________________________ ]
[ Name________________________________________ ] [ (Zip Code) ]
[ (Please Print) ] [ ]
[ ] [ ___________________________________________ ]
[ Address_____________________________________ ] [ (Tax Identification or Social ]
[ ] [ Security Number) ]
[ ____________________________________________ ] [ ]
[ (Zip Code) ] [ ___________________________________________ ]
[ ] [ (See Substitute Form W-9 herein ]
[ ____________________________________________ ] [ ]
[(Tax Identification or Social Security Number) ] [ ]
[ (See Substitute Form W-9 herein) ] ------------------------------------------------
[ ]
[ Credit unpurchased LYONs by book-entry ]
[ transfer to the DTC account set forth below: ]
[ ]
[ ____________________________________________ ]
[ PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN ]
[ ]
[ ]
[ SIGNATURE GUARANTEE (See Instruction 3 below) ]
[ Certain Signatures Must be Guaranteed by a ]
[ Medallion Signature Guarantor. ]
[ ]
[ ]
[ ____________________________________________ ]
[ (Name of Medallion Signature Guarantor) ]
[ ]
[ ____________________________________________ ]
[ ]
[ ____________________________________________ ]
[ ]
[ ____________________________________________ ]
[ (Address, including Zip Code, and Telephone ]
[ Number, including Area Code, of Firm) ]
[ ]
[ ____________________________________________ ]
[ (Authorized Signature) ]
[ ]
[ ____________________________________________ ]
[ (Printed Name) ]
- ------------------------------------------------
7
- -----------------------------------------------------------------------------
PLEASE SIGN HERE
(To be completed by all tendering Holders of LYONs regardless of whether
LYONs are being physically delivered herewith, unless an Agent's
Message is delivered in connection with a book-entry transfer of such LYONs)
By completing, executing and delivering this Letter of Transmittal and
Consent, the undersigned hereby tenders, and consents to the Proposed
Amendments (and to execution of the Supplemental Indenture effecting the
Proposed Amendments) with respect to the principal amount at maturity of the
LYONs listed in the box above labeled "Description of LYONs " under the
column heading "Principal Amount at Maturity Tendered and as to which
Consents are Given" or under the column heading "Principal Amount at Maturity
Tendered Prior to the First Distribution of Definitive Consent Solicitation
Material for LYONs and as to which Consents are Given" (or, if nothing is
indicated in such columns, with respect to the entire aggregate principal
amount at maturity represented by the LYONs described in such box).
This Letter of Transmittal and Consent must be signed by the registered
Holder(s) exactly as the name(s) appear(s) on certificate(s) representing
LYONs or, if tendered by a participant in DTC, exactly as such participant's
name appears on a security position listing as the owner of such LYONs. If
signature is by trustees, executors, administrators, guardians, attorneys-in-
fact, officers of corporations or other acting in a fiduciary or
representative capacity, please set forth the full title and see Instruction
4.
___________________________________________________________________________
___________________________________________________________________________
Signature(s) of Registered Holder(s) or Authorized Signatory
(See guarantee requirement below)
Dated______________________________________________________________________
Name(s)____________________________________________________________________
(Please Print)
Capacity___________________________________________________________________
Address____________________________________________________________________
(Zip Code)
Area Code and
Telephone
Number_____________________________________________________________________
Tax Identification or
Social Security
No.________________________________________________________________________
COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9
Medallion Signature Guarantee
(If Required--See Instructions 1 and 3)
Authorized
Signature__________________________________________________________________
Print Name and Title_______________________________________________________
Name of
Firm ______________________________________________________________________
[Place Seal Here]
Address (including zip code) and
Telephone Number (including area code)_____________________________________
Dated______________________________________________________________________
- -----------------------------------------------------------------------------
8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CONSENT AND LYONS OR
BOOK-ENTRY CONFIRMATIONS; GUARANTEED DELIVERY PROCEDURES; WITHDRAWAL OF
TENDER. To tender LYONs in the Offer and to deliver Consents in the
Solicitation, physical delivery of the LYONs or a confirmation of any book-
entry transfer into the Depositary's account with DTC of LYONs tendered
electronically, as well as a properly completed and duly executed copy (or
facsimile) of this Letter of Transmittal and Consent with any required
signature guarantees (or Agent's Message (as defined below) in connection
with a book-entry transfer), and any other documents required by this Letter
of Transmittal and Consent, must be received by the Depositary at its address
set forth herein at or prior to 11:59 P.M., New York City time, on the
Expiration Date; provided, however, that no Consent Payment will be paid to
Holders who deliver their Consents after the LYONs Consent Deadline. The
method of delivery of this Letter of Transmittal and Consent, LYONs and all
other required documents to the Depositary is at the election and risk of the
tendering Holders. If such delivery is by mail, it is suggested that Holders
use properly insured registered mail, return receipt requested, and that the
mailing be made sufficiently in advance of the Expiration Date or the LYONs
Consent Deadline, as the case may be, to permit delivery to the Depositary at
or prior to such time. Except as otherwise provided below, the delivery will
be deemed made when actually received or confirmed by the Depositary. This
Letter of Transmittal and Consent and LYONs should be sent only to the
Depositary and not to the Company, the Trustee, the Dealer Manager or the
Information Agent.
The term "Agent's Message" means a message transmitted by DTC to, and
received by, the Depositary and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgement from the
participant in DTC tendering the LYONs, that such participant has received
and agrees to be bound by the terms of this Letter of Transmittal and Consent
and the Company may enforce such agreement against the participant.
If, after the LYONs Consent Deadline and prior to the Expiration Date,
Holders desire to tender LYONs pursuant to the Offer and (i) such LYONs are
not lost, but are not immediately available, (ii) time will not permit this
Letter of Transmittal and Consent, such LYONs or other required documents to
reach the Depositary at or prior to 11:59 P.M., New York City time, on the
Expiration Date or (iii) the procedures for book-entry transfer cannot be
completed at or prior to 11:59 P.M., New York City time, on the Expiration
Date, such Holders may effect a tender of such LYONs and delivery of Consents
to the Proposed Amendments in accordance with the guaranteed delivery
procedures set forth in the Purchase Offer under the caption "The Tender
Offers and the Consent Solicitations--Guaranteed Delivery."
Pursuant to the guaranteed delivery procedures:
(a) such tender must be made by or through an Eligible Institution
(defined as an institution that is a member of a national securities exchange
or the National Association of Securities Dealers, Inc. or is a commercial
bank or trust company having an office in the United States);
(b) at or prior to 11:59 P.M., New York City time, on the Expiration
Date, the Depositary must have received from such Eligible Institution, at
the address of the Depositary set forth herein, a properly completed and duly
executed Notice of Guaranteed Delivery and Consent (by mail, hand delivery or
facsimile), substantially in the form provided by the Company, setting forth
the name(s) and address(es) of the Holder(s), a description of the LYONs and
the principal amount of LYONs being tendered and with respect to which a
Consent is being delivered and stating that the tender is being made thereby
and guaranteeing that, within three New York Stock Exchange trading days
after the date of the Notice of Guaranteed Delivery and Consent, a properly
completed and duly executed Letter of Transmittal and Consent, or a facsimile
thereof, with any required signature guarantees, or an Agent's Message,
together with the LYONs (or confirmation of book-entry transfer of such LYONs
into the Depositary's account with DTC as described above) and any other
documents required by this Letter of Transmittal and Consent and the
instructions hereto will be deposited by such Eligible Institution with the
Depositary; and
(c) this Letter of Transmittal and Consent, or facsimile hereof,
properly completed and duly executed, with any required signature guarantees,
or an Agent's Message, and all physically delivered LYONs in proper form (or
confirmation of book-entry transfer of such LYONs into the Depositary's
account with DTC as described above, including an Agent's Message in
connection therewith) and all other required documents must be received by
the Depositary within three New York Stock Exchange trading days after the
date of the Notice of Guaranteed Delivery and Consent.
9
HOLDERS SHOULD NOTE THAT THE FOREGOING PROCEDURES ARE NOT AVAILABLE
UNTIL AFTER THE LYONS CONSENT DEADLINE AND THAT TENDERS PURSUANT TO THE
GUARANTEED DELIVERY PROCEDURES WILL NOT BE ACCEPTED PRIOR TO THAT TIME OR
ENTITLE A HOLDER TO RECEIVE A CONSENT PAYMENT.
Tenders of LYONs may be withdrawn at any time prior to the Expiration
Date and unless accepted by the Company, any time after 40 business days
after the date of the Purchase Offer, by written notice of withdrawal
received by the Depositary, delivery by mail or facsimile, which notice must
be received by the Depositary at its address set forth herein at or prior to
11:59 P.M., New York City time, on the Expiration Date. To be effective,
notice of withdrawal of tendered LYONs must (i) be received by the Depositary
at or prior to 11:59 P.M., New York City time, on the Expiration Date at its
address set forth herein, (ii) describe the LYONs to be withdrawn, (iii)
specify the name of the person who deposited the LYONs to be withdrawn (the
"Depositor"), the name in which the LYONs are registered (or, if tendered by
book entry transfer, the name of the participant in DTC whose name appears on
a security position listing as the owner of such LYONs) if different from
that of the Depositor, (iv) state the principal amount of LYONs to be
withdrawn, (v) contain the certificate numbers shown on the LYONs, and (vi)
be signed by the Holder in the same manner as the original signature on this
Letter of Transmittal and Consent (including any required signature
guarantee(s)) or be accompanied by evidence satisfactory to the Company that
the person withdrawing the tender has succeeded to be beneficial ownership of
the LYONs. If LYONs have been delivered or otherwise identified (through
confirmation of book-entry transfer of such LYONs) to the Depositary, the
name of the Holder and the LYONs withdrawn must also be furnished to the
Depositary as aforesaid prior to the physical release of the withdrawn LYONs
(or, in the case of LYONs transferred by book-entry transfer, the name and
number of the account at DTC to be credited with withdrawn LYONs).
2. CONSENT TO PROPOSED AMENDMENTS; REVOCATION OF CONSENTS. In
accordance with the Purchase Offer, all properly completed and executed
Letters of Transmittal and Consents consenting to the Proposed Amendments
that are received by the Depositary at or prior to 5:00 P.M., New York City
time, on the LYONs Consent Deadline will be counted as Consents with respect
to the Proposed Amendments unless the Depositary receives, prior to execution
of the Supplemental Indenture, a written notice of revocation of such
Consents as described in the Purchase Offer. To revoke a consent, a Holder
must withdraw the corresponding tendered LYONs in the manner set forth above.
3. SIGNATURE GUARANTEES. No signature guarantee is required if: (i)
this Letter of Transmittal and Consent is signed by the registered holder(s)
of the LYONs tendered herewith (or by a participant in DTC whose name appears
on a security position listing as the owner of LYONs) and the payments for
the LYONs to be purchased and Consent Payments to be made, or any LYONs for
principal amounts not tendered or not accepted for purchase are to be issued,
directly to such registered holder(s), (or, if signed by a participant in
DTC, and LYONs for principal amounts not tendered or not accepted for
purchase are to be credited to such participant's account at DTC) and the
"Special Issuance/Delivery Instructions" box of this Letter of Transmittal
and Consent has not been completed; or (ii) such LYONs are tendered for the
account of an Eligible Institution. In all other cases, all signatures on
Letters of Transmittal and Consents accompanying LYONs must be guaranteed by
a Medallion Signature Guarantor (defined as a recognized participant in the
Securities Transfer Agents Medallion Program).
4. SIGNATURES ON LETTER OF TRANSMITTAL AND CONSENT, INSTRUMENTS OF
TRANSFER AND ENDORSEMENTS. If this Letter of Transmittal and Consent is
signed by the registered Holders of the LYONs 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 Letter of
Transmittal and Consent is signed by a participant in DTC whose name is shown
on a security position listing as the owner of the LYONs tendered hereby, the
signature must correspond with the name shown on the security position
listing as the owner of such LYONs.
If any of the LYONs tendered hereby are registered in the name of two or
more Holders, all such Holders must sign this Letter of Transmittal and
Consent. If any of the LYONs tendered hereby are registered in different
names on several certificates, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal as there are different
registrations of certificates.
If this Letter of Transmittal and Consent or any LYONs or instrument of
transfer is 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.
10
When this Letter of Transmittal and Consent is signed by the registered
Holders of the LYONs tendered hereby, no endorsements of LYONs or separate
instruments of transfer are required unless payment is to be made, or LYONs
not tendered or purchased are to be issued, to a person other than the
registered Holders, in which case signatures on such LYONs or instruments of
transfer must be guaranteed by a Medallion Signature Guarantor.
IF THIS LETTER OF TRANSMITTAL AND CONSENT IS SIGNED OTHER THAN BY THE
REGISTERED HOLDERS OF THE LYONS TENDERED HEREBY, SUCH LYONS MUST BE ENDORSED
OR ACCOMPANIED BY APPROPRIATE INSTRUMENTS OF TRANSFER, AND A DULY COMPLETED
PROXY ENTITLING THE SIGNER TO CONSENT WITH RESPECT TO SUCH LYONS ON BEHALF OF
SUCH REGISTERED HOLDERS, IN ANY CASE SIGNED EXACTLY AS THE NAME OR NAMES OF
THE REGISTERED HOLDERS APPEAR ON THE LYONS AND SIGNATURES ON SUCH LYONS OR
INSTRUMENTS OF TRANSFER ARE REQUIRED AND MUST BE GUARANTEED BY A MEDALLION
SIGNATURE GUARANTOR, UNLESS THE SIGNATURE IS THAT OF AN ELIGIBLE INSTITUTION.
5. DELIVERY OF LETTER OF TRANSMITTAL AND CONSENT AND LYONS
CERTIFICATES. This Letter of Transmittal and Consent is to be used if (i)
certificates evidencing LYONs are to be forwarded herewith or (ii) LYONs are
to be delivered by book-entry transfer pursuant to the procedure set forth
under the caption "The Tender Offers and Consent Solicitations-Book-Entry
Delivery of the Notes." Certificates evidencing all physically tendered
LYONs, or a confirmation of a book-entry transfer into the Depositary's
account at DTC of all LYONs delivered by book-entry transfer as well as a
properly completed and duly executed Letter of Transmittal and Consent (or
facsimile thereof) with any required signature guarantees and any other
documents requested by this Letter of Transmittal and Consent, must be
received by the Depositary at one of its addresses set forth herein, prior to
11:59 P.M., New York City Time, on the Expiration Date. If certificates
evidencing LYONs are forwarded to the Depositary in multiple deliveries, a
properly completed and duly executed Letter of Transmittal and Consent must
accompany each such delivery.
No alternative, conditional or contingent tenders will be accepted. All
tendering Holders, by execution of this Letter of Transmittal and Consent (or
a manually signed facsimile hereof), waive any right to receive any notice of
the acceptance of their LYONs for purchase.
6. INADEQUATE SPACE. If the space provided under "Description of
LYONs" is inadequate, the information should be continued on a separate
signed list and attached to this Letter of Transmittal and Consent.
7. PARTIAL TENDERS AND UNPURCHASED LYONS (NOT APPLICABLE TO HOLDERS
WHO TENDER BY BOOK-ENTRY TRANSFER). If only a portion (in an integral
portion of $1,000 only) of the principal amount at maturity of any LYON is to
be tendered, fill in the portion of the principal amount at maturity of such
LYON to be tendered in the column entitled "Principal Amount at Maturity
Tendered." If the tendered portion of the LYON so tendered is purchased, the
LYON will be split into two LYONs (in denominations of $1,000 or an integral
multiple thereof), the aggregate principal amount at maturity of which will
equal the principal amount at maturity of such original LYON. The Depositary
will then return to the tendering Holder a new LYON, in the principal amount
at maturity of the portion of such original LYON not tendered and purchased,
unless otherwise specified in the "A. Special Issuance/Delivery Instructions"
box in this Letter of Transmittal and Consent. The entire principal amount at
maturity evidenced by a certificate for LYONs will be deemed tendered unless
otherwise indicated.
8. TRANSFER TAXES. Except as set forth in this Instruction 8, the
Company will pay or cause to be paid any transfer taxes with respect to the
transfer and sale of LYONs to it, or to its order, pursuant to the Offer. If
payment is to be made to, or if LYONs not tendered or purchased are to be
registered in the name of, any persons other than the registered owners, or
if tendered LYONs are registered in the name of any persons other than the
persons signing this Letter of Transmittal and Consent, 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 payment unless satisfactory evidence of the payment of such
taxes or exemption therefrom is submitted.
9. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If payment for any
LYONs tendered hereby is to be made, or certificates evidencing LYONs not
tendered or not purchased is (are) to be issued, in the name of a person
other than the person(s) signing this Letter of Transmittal and Consent or if
payment in the name of the person(s) signing this Letter of Transmittal and
Consent or any such certificate is to be sent to someone other than the
person(s) signing this Letter of Transmittal and Consent or to the person(s)
signing this Letter of Transmittal and Consent but at an address other than
that
11
shown in the box entitled "Description of LYONs" on this Letter of
Transmittal and Consent, the appropriate boxes captioned "A. Special
Issuance/Delivery Instructions" and "B. Special Payment Instructions" on this
Letter of Transmittal and Consent must be completed.
10. IRREGULARITIES. The Company will determine, in its sole
discretion, all questions as to the validity, form, eligibility (including
time of receipt), acceptance for payment and withdrawal of any tender of
LYONs and its determination shall be final and binding on all parties. The
Company reserves the absolute right to reject any and all tenders of LYONs
determined by it not to be in the proper form or the acceptance of or payment
for which may be unlawful. The Company also reserves the absolute right to
waive any of the conditions of the Purchase Offer or any defect or
irregularity in the tender of any particular LYONs, whether or not similar
conditions, defects or irregularities are waived in the case of other
tendered LYONs) and the Company's interpretation of the terms and conditions
of the Purchase Offer (including these instructions) shall be final and
binding on all parties. No tender of LYONs will be deemed to be validly made
until all defects and irregularities have been cured or waived. Unless
waived, all defects or irregularities in connection with tenders must be
cured within such time as the Company shall determine. None of the Company,
the Dealer Manager, the Depositary, the Information Agent nor any other
person is or will be obligated to give notice of defects or irregularities in
tenders or any notice of withdrawal, nor shall any of them incur any
liability for failure to give any such notice.
11. 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, and with certain other information, on Substitute Form
W-9, which is provided under "Important Tax Information" below, and to
certify that the Holder (or other payee) is not subject to backup
withholding. Failure to provide the information 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 backup withholding on
any payment. 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, if
any, until a TIN is provided to the Depositary.
12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Any questions or
requests for assistance or additional copies of the Purchase Offer or this
Letter of Transmittal and Consent may be directed to the Information Agent at
its telephone number set forth on the last page hereof. A Holder may also
contact the Dealer Manager at its telephone number set forth below or such
Holder's broker, dealer, commercial bank, trust company or other nominee for
assistance concerning the Offer.
13. WAIVER OF CONDITIONS. The Company expressly reserves the
absolute right, in its sole discretion, to waive any of the conditions to the
Offer or the Solicitation in the case of any LYONs tendered and Consents
delivered, in whole or in part, at any time and from time to time.
12
IMPORTANT TAX INFORMATION
Under U.S. federal income tax law, a Holder whose tendered LYONs are
accepted for payment is required to provide the Depositary with such Holder's
current TIN on Substitute Form W-9 below, or, alternatively, to establish
another basis for an exemption from backup withholding. 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 penalty imposed by the Internal Revenue Service. In
addition, any payment made to such Holder or other payee with respect to
LYONs 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 payment made 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 payment made to a Holder or other
payee with respect to LYONs 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 (i) the Holder is exempt from backup withholding, (ii) the
Holder has not been notified by the Internal Revenue Service that the Holder
is subject to backup withholding as a result of failure to report all
interest or dividends or (iii) 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
LYONs. If the LYONs 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.
13
- ------------------------------------------------------------------------------------------
PAYER'S NAME: SHONEY'S, INC.
- ------------------------------------------------------------------------------------------
SUBSTITUTE Part 1--PLEASE PROVIDE YOUR TIN IN ________________________
Form W-9 THE BOX AT RIGHT AND CERTIFY BY Social Security Number
SIGNING AND DATING BELOW.
OR
Department of the
Treasury ________________________
Internal Revenue Service Employer
Identification Number(s)
Part 2--Certification--Under Part 3--
of Perjury, I certify that: [ ] Awaiting TIN
(1) The number shown on this
form is my correct taxpayer
identification number (or I
am waiting for a number to be
used for me), and
Payer's Request for (2) I am not subject to backup
Taxpayer Identification withholding because: (a) I am
Number ("TIN") and exempt from backup withholding,
Certifications 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 and
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 underreporting
interest or dividends on your tax return.
Name___________________________________________________________
Address________________________________________________________
(include zip code)
Signature__________________________Date________________________
- ------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 31%
OF ANY CASH PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
NOTE: YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 3 OF THE SUBSTITUTE FORM W-9.
- -----------------------------------------------------------------------------
CERTIFICATION 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 to the
payer and that, if I do not provide my taxpayer identification number within
sixty days, such retained amounts shall be remitted to the IRS as backup
withholding.
Signature_____________________________________________Date__________________
- -----------------------------------------------------------------------------
14
IMPORTANT: THIS LETTER OF TRANSMITTAL AND CONSENT (OR FACSIMILE THEREOF),
PROPERLY COMPLETED AND DULY EXECUTED (TOGETHER WITH ANY REQUIRED SIGNATURE
GUARANTEES AND CERTIFICATES RELATING TO THE LYONS OR CONFIRMATION OF BOOK-
ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE
DEPOSITARY ON OR PRIOR TO THE LYONS CONSENT DEADLINE FOR HOLDERS WISHING TO
RECEIVE THE CONSENT PAYMENT AND ON OR PRIOR TO THE EXPIRATION DATE FOR
HOLDERS WISHING TO TENDER THEIR LYONS.
THE DEPOSITARY FOR THE OFFER IS:
THE BANK OF NEW YORK
BY MAIL, OVERNIGHT COURIER OR HAND:
101 Barclay Street
Floor 7 East
New York, New York 10286
Attn: Reorganization Section, Kin Lau
By Facsimile for Eligible Institutions: (212) 815-6339
To Confirm by Telephone: (212) 815-3750
THE INFORMATION AGENT FOR THE OFFER IS:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Bankers and Brokers Call Collect: (212) 269-5550
All Others Call Toll-Free: (888) 242-8157
THE DEALER MANAGER FOR THE OFFER IS:
BANC OF AMERICA SECURITIES LLC
100 North Tryon Street, 7th Floor
Charlotte, North Carolina 28255
Attn: High Yield Special Products
Collect: (704) 388-4813
Toll Free: (888) 292-0070
15