EXHIBIT 99.1
LETTER OF TRANSMITTAL
THE MAXIM GROUP, INC.
OFFER TO EXCHANGE
9 1/4% SENIOR SUBORDINATED NOTES DUE 2007, SERIES B FOR ANY AND ALL OF THE
OUTSTANDING 9 1/4% SENIOR SUBORDINATED NOTES DUE 2007
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,NEW YORK
CITY TIME, ON , 1997, UNLESS THE OFFER IS EXTENDED
STATE STREET BANK AND TRUST COMPANY
(THE "EXCHANGE AGENT")
By Mail By Facsimile Transmission: By Hand or Overnight
(registered or certified Courier:
mail recommended)
(617) 664-5395
State Street Bank and Trust State Street Bank and Trust
Company Corporate Trust Company Corporate Trust
Department P.O. Box Department 4th floor Two
778 Boston, MA 02102-0078 International Place Boston,
MA 02110
Confirm by Telephone or for Information Call:
(617) 664-5587
Delivery of this instrument to an address other than as set forth above or
transmission of instructions via a facsimile number other than the ones listed
above will not constitute a valid delivery. The instructions accompanying this
Letter of Transmittal should be read carefully before this Letter of
Transmittal is completed.
The undersigned hereby acknowledges receipt of the Prospectus dated November
, 1997 (the "Prospectus") of The Maxim Group, Inc. (the "Company") and this
Letter of Transmittal, which together constitute the Company's offer (the
"Exchange Offer") to exchange $1,000 principal amount of its 9 1/4% Senior
Subordinated Notes due 2007, Series B (the "Exchange Notes"), which have been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to a Registration Statement of which the Prospectus is a part,
for each $1,000 principal amount of its outstanding 9 1/4% Senior Subordinated
Notes due 2007 (the "144A Notes"). The term "Expiration Date" shall mean 5:00
p.m., New York City time, on , 1997, unless the Exchange Offer is
extended, in which case the term "Expiration Date" means the latest date and
time to which the Exchange Offer is extended. Capitalized terms used but not
defined herein have the meaning given to them in the Prospectus.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS
INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND
REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS
LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
List on the next page the 144A Notes to which this Letter of Transmittal
relates. If the space indicated is inadequate, the Certificate or Registration
Numbers and the Principal Amounts should be listed on a separately signed
schedule affixed hereto.
1
DESCRIPTION OF 144A NOTES TENDERED HEREBY
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AGGREGATE PRINCIPAL PRINCIPAL
NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S) CERTIFICATE OR AMOUNT REPRESENTED AMOUNT
(PLEASE FILL IN) REGISTRATION NUMBERS* BY 144A NOTES TENDERED**
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TOTAL
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* Need not be completed by Book-Entry Holders.
** Unless otherwise indicated, the Holder will be deemed to have tendered
the full aggregate principal amount represented by such 144A Notes. All
tenders must be in integral multiples of $1,000.
This Letter of Transmittal is to be used (i) if certificates of 144A Notes
are to be forwarded herewith (unless delivery of 144A Notes is to be made by
book-entry transfer to an account maintained by the Exchange Agent at The
Depository Trust Company (the "Depository" or "DTC"), pursuant to the
procedures set forth in the "The Exchange Offer--Procedures for Tendering" in
the Prospectus), or (ii) if tender of the 144A Notes is to be made according
to the guaranteed delivery procedures described in the Prospectus under the
caption "The Exchange Offer--Guaranteed Delivery Procedures." See Instruction
2. Delivery of documents to a book-entry transfer facility does not constitute
delivery to the Exchange Agent.
The term "Holder" with respect to the Exchange Offer means any person in
whose name 144A Notes are registered on the books of the Company or any other
person who has obtained a properly completed bond power from the registered
holder. The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with
respect to the Exchange Offer. Holders who wish to tender their 144A Notes
must complete this letter in its entirety.
[_]CHECK HERE IF TENDERED 144A NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
DEPOSITORY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution ______________________________________________
Account Number _____________________________________________________________
Transaction Code Number ____________________________________________________
Holders whose 144A Notes are not immediately available or who cannot deliver
their 144A Notes and all other documents required hereby to the Exchange Agent
on or prior to the Expiration Date must tender their 144A Notes according to
the guaranteed delivery procedure set forth in the Prospectus under the
caption "The Exchange Offer--Guaranteed Delivery Procedures." See Instruction
2.
[_]CHECK HERE IF TENDERED 144A 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 ______________________
____________________________________________________________________________
If delivery by book-entry transfer:
Account Number ___________________________________________________________
Transfer Code Number _____________________________________________________
[_]CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name _______________________________________________________________________
Address ____________________________________________________________________
2
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the principal amount of the 144A
Notes indicated above. Subject to, and effective upon, the acceptance for
exchange of such 144A Notes tendered hereby, the undersigned hereby exchanges,
assigns and transfers to, or upon the order of, the Company all right, title
and interest in and to such 144A Notes as are being tendered hereby, including
all rights to accrued and unpaid interest thereon as of the Expiration Date.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent
the true and lawful agent and attorney-in-fact of the undersigned (with full
knowledge that said Exchange Agent acts as the agent of the Company in
connection with the Exchange Offer) to cause the 144A Notes to be assigned,
transferred and exchanged. The undersigned represents and warrants that it has
full power and authority to tender, exchange, assign and transfer the 144A
Notes and to acquire Exchange Notes issuable upon the exchange of such
tendered 144A Notes, and that when the same are accepted for exchange, the
Company will acquire good and unencumbered title to the tendered 144A Notes,
free and clear of all liens, restrictions, charges and encumbrances and not
subject to any adverse claim.
The undersigned represents to the Company that (i) the Exchange Notes
acquired pursuant to the Exchange Offer are being obtained in the ordinary
course of business of the person receiving such Exchange Notes, whether or not
such person is the undersigned; (ii) neither the undersigned nor any such
other person has an arrangement or understanding with any person to
participate in a distribution of such Exchange Notes; and (iii) the
undersigned and any such other person acknowledge that, if they are
participating in the Exchange Offer for the purpose of distributing the
Exchange Notes, (a) they cannot rely on the position of the staff of the
Securities and Exchange Commission enunciated in Exxon Capital Holdings
Corporation (available April 13, 1989), Morgan Stanley & Co., Inc. (available
June 5, 1991) or similar no-action letters and, in the absence of an exemption
therefrom, must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with the resale transaction
and (b) failure to comply with such requirements in such instance could result
in the undersigned or any such other person incurring liability under the
Securities Act for which such persons are not indemnified by the Company. If
the undersigned or the person receiving the Exchange Notes covered by this
letter is an affiliate (as defined under Rule 405 of the Securities Act) of
the Company, the Exchange Notes may not be offered for resale, resold or
otherwise transferred by the undersigned or such other person without
registration under the Securities Act or an exemption therefrom. If the
exchange offeree is not a broker-dealer, it represents that it is not engaged
in, and does not intend to engage in, a distribution of the Exchange Notes. If
the exchange offeree is a broker-dealer holding 144A Notes acquired for its
own account as a result of market-making activities or other trading
activities, it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of Exchange Notes received in
respect of such 144A Notes pursuant to the Exchange Offer; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
The undersigned also warrants that it will, upon request, execute and
deliver any additional documents deemed by the Exchange Agent or the Company
to be necessary or desirable to complete the exchange, assignment and transfer
of tendered 144A Notes or transfer ownership of such 144A Notes on the account
books maintained by a book-entry transfer facility. The undersigned further
agrees that acceptance of any tendered 144A Notes by the Company and the
issuance of Exchange Notes in exchange therefor shall constitute performance
in full by the Company of its obligations under the Registration Rights
Agreement and that the Company shall have no further obligations or
liabilities thereunder for the registration of the 144A Notes or the Exchange
Notes.
The Exchange Offer is subject to certain conditions set forth in the
Prospectus under the caption "The Exchange Offer--Conditions." The undersigned
recognizes that as a result of these conditions (which may be waived, in whole
or in part, by the Company), as more particularly set forth in the Prospectus,
the Company may not be required to exchange any of the 144A Notes tendered
hereby and, in such event, the 144A Notes not exchanged will be returned to
the undersigned at the address shown below the signature of the undersigned.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned. Tendered 144A Notes may be
withdrawn at any time prior to the Expiration Date.
3
Unless otherwise indicated in the box entitled "Special Registration
Instructions" or the box entitled "Special Delivery Instructions" in this
Letter of Transmittal, certificates for all Exchange Notes delivered in
exchange for tendered 144A Notes, and any 144A Notes delivered herewith but
not exchanged, will be registered in the name of the undersigned and shall be
delivered to the undersigned at the address shown below the signature of the
undersigned. If an Exchange Note is to be issued to a person other than the
person(s) signing this Letter of Transmittal, or if the Exchange Note is to be
mailed to someone other than the person(s) signing this Letter of Transmittal
or to the person(s) signing this Letter of Transmittal at an address different
than the address shown on this Letter of Transmittal, the appropriate boxes of
this Letter of Transmittal should be completed. If 144A Notes are surrendered
by Holder(s) that have completed either the box entitled "Special Registration
Instructions" or the box entitled "Special Delivery Instructions" in this
Letter of Transmittal, signature(s) on this Letter of Transmittal must be
guaranteed by an Eligible Institution (as defined in Instruction 2).
SPECIAL REGISTRATION INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
To be completed ONLY if the Ex- To be completed ONLY if the Ex-
change Notes are to be issued in change Notes are to be sent to
the name of someone other than someone other than the under-
the undersigned. signed, or to the undersigned at
Name _____________________________ an address other than that shown
Address __________________________ above under "Description of 144A
__________________________________ Notes Tendered Hereby."
Book-Entry Transfer Facility Ac- Name _____________________________
count: Address __________________________
__________________________________
__________________________________
Employer Identification or Social (Please print or type)
Security Number:
__________________________________
(Please print or type)
4
REGISTERED HOLDER(S) OF 144A NOTES SIGN HERE
(In addition, complete Substitute Form W-9 Below)
X __________________________________________________________________________
X __________________________________________________________________________
(Signature(s) of Registered Holder(s))
Must be signed by registered holder(s) exactly as name(s) appear(s) on
the 144A Notes or on a security position listing as the owner of the 144A
Notes or by person(s) authorized to become registered holder(s) by properly
completed bond powers transmitted herewith. If signature is by attorney-in-
fact, trustee, executor, administrator, guardian, officer of a corporation
or other person acting in a fiduciary capacity, please provide the
following information. (Please print or type):
Name and Capacity (full title): ____________________________________________
Address (including zip code): ______________________________________________
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Area Code and Telephone Number: ____________________________________________
Taxpayer Identification or Social Security Number: _________________________
Dated: _______________________________
SIGNATURE GUARANTEE
(If Required--See Instruction 4)
Authorized Signature: ______________________________________________________
(Signature of Representative of Signature Guarantor)
Name and Title: ____________________________________________________________
Name of Plan: ______________________________________________________________
Area Code and Telephone Number: ____________________________________________
(Please print or type)
Dated: _______________________________
5
PAYER'S NAME: THE MAXIM GROUP, INC.
THIS SUBSTITUTE FORM W-9 MUST BE COMPLETED AND SIGNED
PLEASE PROVIDE YOUR SOCIAL SECURITY NUMBER OR OTHER TAXPAYER IDENTIFICATION
NUMBER ON THE FOLLOWINGSUBSTITUTE FORM W-9 AND CERTIFY THEREIN THAT YOU ARE
SUBJECT TO BACKUP WITHHOLDING.
PART 1--PLEASE PROVIDE YOUR
SUBSTITUTE TIN IN THE BOX AT RIGHT AND ----------------------
CERTIFY BY SIGNING AND
DATING BELOW.
FORM W-9 SOCIAL SECURITY
NUMBER OR EMPLOYER IDENTIFICATION NUMBER
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PART 2--CHECK THE BOX IF YOU ARE NOT SUBJECT TO
BACKUP WITHHOLDING UNDER THE PROVISIONS OF SECTION
DEPARTMENT OF THE 3406(A) (1) (C) OF THE INTERNAL REVENUE CODE BECAUSE
TREASURY INTERNAL (1) YOU ARE EXEMPT FROM BACKUP WITHHOLDING, (2) YOU
REVENUE SERVICE HAVE NOT BEEN NOTIFIED THAT YOU ARE SUBJECT TO BACKUP
WITHHOLDING AS A RESULT OF FAILURE TO REPORT ALL
INTEREST OR DIVIDENDS OR (3) THE INTERNAL REVENUE
SERVICE HAS NOTIFIED YOU THAT YOU ARE NO LONGER
SUBJECT TO BACKUP WITHHOLDING. [_]
PART 3--
Awaiting
PAYER'S REQUEST FOR CERTIFICATION: UNDER PENALTIES OF TIN [_]
TAXPAYER IDENTIFI- PERJURY, I CERTIFY THAT THE INFORMA-
CATION NUMBER ("TIN") TION PROVIDED ON THIS FORM IS TRUE,
CORRECT AND COMPLETE.
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THE INTERNAL REVENUE SERVICE DOES NOT
REQUIRE YOUR CONSENT TO ANY PROVISION
OF THIS DOCUMENT OTHER THAN THE CER-
TIFICATIONS REQUIRED TO AVOID BACKUP
WITHHOLDING.
Signature: _____________ Date: ______
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NOTE: ANY FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY CASH PAYMENTS IN EXCESS OF $10.00 MADE TO YOU.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF SUBSTITUTE FORM W-9.
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CERTIFICATE OF AWAITING TAX IDENTIFICATION NUMBER
I CERTIFY UNDER PENALTIES OF PERJURY THAT A TAXPAYER IDENTIFICATION NUMBER
HAS NOT BEEN ISSUED TO ME, AND EITHER (A) I HAVE MAILED OR DELIVERED AN
APPLICATION TO RECEIVE A TAXPAYER IDENTIFICATION NUMBER TO THE APPROPRIATE
INTERNAL REVENUE SERVICE CENTER OR SOCIAL SECURITY ADMINISTRATION OFFICE,
OR (B) I INTEND TO MAIL OR DELIVER AN APPLICATION IN THE NEAR FUTURE. I
UNDERSTAND THAT IF I DO NOT PROVIDE A TAXPAYER IDENTIFICATION NUMBER WITHIN
60 DAYS, 31% OF ALL REPORTABLE PAYMENTS MADE TO ME THEREAFTER WILL BE
WITHHELD, UNTIL I PROVIDE A NUMBER.
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SIGNATURE DATE
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6
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES.
All physically delivered 144A Notes, as well as a properly completed and
duly executed copy of this Letter of Transmittal or facsimile thereof (or
confirmation of any book-entry transfer to the Exchange Agent's account at a
book-entry transfer facility of 144A Notes tendered by book-entry transfer),
and any other documents required by this Letter of Transmittal, must be
received by the Exchange Agent at any of its addresses set forth herein on or
prior to the Expiration Date. The method of delivery of this Letter of
Transmittal, the 144A Notes and all other required documents is at the
election and risk of the Holder. Instead of delivery by mail, it is
recommended that Holders use an overnight or hand delivery service. Except as
otherwise provided below, the delivery will be deemed made only when actually
received by the Exchange Agent.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering Holders, by execution of this Letter of Transmittal
(or facsimile thereof), shall waive any right to receive notice of the
acceptance of the 144A Notes for exchange.
Delivery to an address other than as set forth herein, or instructions via a
facsimile number other than the ones set forth herein, will not constitute a
valid delivery.
2. GUARANTEED DELIVERY PROCEDURES.
Holders who wish to tender their 144A Notes, and (i) whose Notes are not
immediately available, or (ii) who cannot deliver their 144A Notes, the Letter
of Transmittal or any other required documents to the Exchange Agent (or
comply with the procedures for book-entry transfer) prior to the Expiration
Date, may effect a tender if:
(a) the tender is made through a member firm of the Securities Transfer
Agents Medallion Program, the New York Stock Exchange or the Stock Exchange
Medallion Program (an "Eligible Institution");
(b) prior to the Expiration Date, the Exchange Agent receives from such
Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery)
setting forth the name and address of the Holder of the 144A Notes, the
certificate or registration number(s) of such 144A Notes and the principal
amount of 144A Notes tendered, stating that the tender is being made
thereby and guaranteeing that, within five (5) business days after the
Expiration Date, the Letter of Transmittal (or facsimile thereof), together
with the certificate(s) representing the 144A Notes to be tendered in
proper form for transfer (or a confirmation of book-entry transfer of such
144A Notes into the Exchange Agent's account at the Depository) and any
other documents required by the Letter of Transmittal, will be deposited by
the Eligible Institution with the Exchange Agent; and
(c) such properly completed and executed Letter of Transmittal (or
facsimile thereof), as well as all tendered 144A Notes in proper form for
transfer (or a confirmation of book-entry transfer of such 144A Notes into
the Exchange Agent's account at the Depository) and all other documents
required by the Letter of Transmittal, are received by the Exchange Agent
within five business days after the Expiration Date.
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will be
sent to Holders who wish to tender their 144A Notes according to the
guaranteed delivery procedures set forth above. Any Holder who wishes to
tender 144A Notes pursuant to the guaranteed delivery procedures described
above must ensure that the Exchange Agent receives the Notice of Guaranteed
Delivery relating to such 144A Notes prior to the Expiration Date. Failure to
complete the guaranteed delivery procedures outlined above will not, of
itself, affect the validity or effect a revocation of any Letter of
Transmittal form properly completed and executed by a Holder who attempted to
use the guaranteed delivery procedures.
3. PARTIAL TENDERS; WITHDRAWALS.
If less than the entire principal amount of 144A Notes evidenced by a
submitted certificate is tendered, the tendering Holder should fill in the
principal amount tendered in the column entitled "Principal Amount Tendered"
of the box entitled
7
"Description of 144A Notes Tendered Hereby." A newly issued 144A Note for the
principal amount of 144A Notes submitted but not tendered will be sent to such
Holder as soon as practicable after the Expiration Date. All 144A Notes
delivered to the Exchange Agent will be deemed to have been tendered in full
unless otherwise indicated.
Any 144A Notes tendered pursuant to the Exchange Offer may be withdrawn at
any time prior to the Expiration Date, after which tenders of 144A Notes are
irrevocable. To withdraw a tender of 144A Notes in the Exchange Offer, a
written or facsimile transmission notice of withdrawal must be received by the
Exchange Agent by 5:00 p.m., New York City time, on the Expiration Date. Any
such notice of withdrawal must (i) specify the name of the person having
deposited the 144A Notes to be withdrawn (the "Depositor"), (ii) identify the
144A Notes to be withdrawn (including the certificate or registration
number(s) and principal amount of such 144A Notes, or, in the case of 144A
Notes transferred by book-entry transfer, the name and number of the account
at the DTC to be credited), (iii) be signed by the Depositor in the same
manner as the original signature on this Letter of Transmittal (including any
required signature guarantees) or be accompanied by documents of transfer
sufficient to have the Trustee with respect to the 144A Notes register the
transfer of such 144A Notes into the name of the Depositor withdrawing the
tender, (iv) specify the name in which such 144A Notes are to be registered,
if different from that of the Depositor and (v) include a statement that such
holder is withdrawing his election to have such 144A Notes exchanged. All
questions as to the validity, form and eligibility (including time of receipt)
of such notices will be determined by the Company, whose determination shall
be final and binding on all parties. Any 144A Notes so withdrawn will be
deemed not to have been validly tendered for purposes of the Exchange Offer
and no Exchange Notes will be issued with respect thereto unless the 144A
Notes so withdrawn are validly retendered. Any 144A Notes which have been
tendered but which are not accepted for exchange, will be returned to the
Holder thereof without cost to such Holder as soon as practicable after
withdrawal, rejection of tender or termination of Exchange Offer.
4. SIGNATURE ON THIS LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the registered Holder(s) of the
144A Notes tendered hereby, the signature must correspond with the name(s) as
written on the face of the certificates without alteration or enlargement or
any change whatsoever.
If any of the 144A Notes tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If a number of 144A Notes registered in different names are tendered, it
will be necessary to complete, sign and submit as many separate copies of this
Letter of Transmittal as there are different registrations of 144A Notes.
Signatures on this Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution unless the 144A
Notes tendered hereby are tendered (i) by a registered Holder who has not
completed the box entitled "Special Registration Instructions" or "Special
Delivery Instructions" on the Letter of Transmittal or (ii) for the account of
an Eligible Institution.
If this Letter of Transmittal is signed by the registered Holder or Holders
of 144A Notes listed and tendered hereby, no endorsements of the tendered 144A
Notes or separate written instruments of transfer or exchange are required. In
any other case, the registered Holder must either properly endorse the 144A
Notes or transmit properly completed bond powers with this Letter of
Transmittal (in either case, executed exactly as the name(s) of the registered
Holder(s) appear(s) on the 144A Notes), with the signature on the 144A Notes
or bond power guaranteed by an Eligible Institution (except where the 144A
Notes are tendered for the account of an Eligible Institution).
If this Letter of Transmittal, any certificates or separate written
instruments of transfer or exchange are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or
others acting in a fiduciary or representative capacity, such persons should
so indicate when signing, and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority so to act must be submitted.
8
5. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS.
Tendering Holders should indicate, in the applicable box, the name and
address (or account at the Depository) in which the Exchange Notes or
substitute 144A Notes for principal amounts not tendered or not accepted for
exchange are to be issued (or deposited), if different from the names and
addresses or accounts of the person signing this Letter of Transmittal. In the
case of issuance in a different name, the employer identification number or
social security number of the person named must also be indicated and the
tendering Holder should complete the applicable box.
If no instructions are given, the Exchange Notes (and any 144A Notes not
tendered or not accepted) will be issued in the name of and sent to the acting
Holder of the 144A Notes or deposited at such Holder's account at the
Depository.
6. TRANSFER TAXES.
The Company shall pay all transfer taxes, if any, applicable to the exchange
of 144A Notes pursuant to the Exchange Offer. If, however, certificates
representing Exchange Notes or 144A Notes for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered Holder of the 144A
Notes tendered, or if tendered 144A Notes are registered in the name of any
person other than the person signing the Letter of Transmittal, or if a
transfer tax is imposed for any reason other than the exchange of 144A Notes
pursuant to the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered Holder or any other person) will be payable
by the tendering Holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted herewith, the amount of such transfer
taxes will be billed directly to such tendering Holder.
Except as provided in this Instruction 6, it will not be necessary for
transfer stamps to be affixed to the 144A Notes listed in the Letter of
Transmittal.
7. WAIVER OF CONDITIONS.
The Company reserves the right, in its reasonable judgment, to waive, in
whole or in part, any of the conditions to the Exchange Offer set forth in the
Prospectus.
8. MUTILATED, LOST, STOLEN OR DESTROYED NOTES.
Any Holder whose 144A Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address indicated above for further
instructions.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter of Transmittal may be
directed to the Exchange Agent at the address and telephone number set forth
above. In addition, all questions relating to the Exchange Offer, as well as
requests for assistance or additional copies of the Prospectus and this Letter
of Transmittal, may be directed to Thomas P. Leahey, The Maxim Group, Inc.,
210 TownPark Drive, Kennesaw, Georgia 30144; telephone: (770) 590-9369
(collect).
10. VALIDITY AND FORM.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered 144A Notes and withdrawal of tendered 144A
Notes will be determined by the Company in its sole discretion, which
determination will be final and binding. The Company reserves the absolute
right to reject any and all 144A Notes not properly tendered or any 144A Notes
the Company's acceptance of which would, in the opinion of counsel for the
Company, be unlawful. The Company also reserves the right to waive any
irregularities or conditions of tender as to particular 144A Notes. The
Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in this Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of 144A Notes must be cured within such time as the
Company shall determine. Neither the Company, the Exchange Agent nor any other
person shall be under any duty to give notification of defects or
irregularities with respect to tenders of 144A Notes, nor shall any of them
incur any liability for failure to give such notification. Tenders of 144A
Notes will not be deemed to have been made until such irregularities have been
cured or waived. Any 144A Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned without cost to such holder by the Exchange
Agent to the tendering Holders of 144A Notes, unless otherwise provided
herein, as soon as practicable following the Expiration Date.
9
IMPORTANT TAX INFORMATION
Under federal income tax law, a Holder tendering 144A Notes is required to
provide the Exchange Agent with such Holder's correct TIN on Substitute Form
W-9 above. If such Holder is an individual, the TIN is the Holder's social
security number. The Certificate of Awaiting Taxpayer Identification Number
should be completed if the tendering Holder has not been issued a TIN and has
applied for a number or intends to apply for a number in the near future. If
the Exchange Agent is not provided with the correct TIN, the Holder may be
subject to a $50 penalty imposed by the Internal Revenue Service. In addition,
payments that are made to such Holder with respect to tendered 144A Notes may
be subject to backup withholding.
Certain Holders (including, among others, all domestic corporations and
certain foreign individuals and foreign entities) are not subject to these
backup withholding and reporting requirements. Such a Holder, who satisfies
one or more of the conditions set forth in Part 2 of the Substitute Form W-9,
should execute the certification following such Part 2. In order for a foreign
Holder to qualify as an exempt recipient, that Holder must submit to the
Exchange Agent a properly completed Internal Revenue Service Form W-9, signed
under penalties of perjury, attesting to that Holder's exempt status. Such
forms can be obtained from the Exchange Agent.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any amounts otherwise payable to the Holder. Backup withholding is not
an additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a Holder with
respect to 144A Notes tendered for exchange, the Holder is required to notify
the Exchange Agent of his or her correct TIN by completing the form herein
certifying that the TIN provided on Substitute Form W-9 is correct (or that
such Holder is awaiting a TIN) and that (i) such Holder is exempt, (ii) such
Holder has not been notified by the Internal Revenue Service that he or she is
subject to backup withholding as a result of failure to report all interest or
dividends or (iii) the Internal Revenue Service has notified such Holder that
he or she is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
Each Holder is required to give the Exchange Agent the social security
number or employer identification number of the record Holder(s) of the 144A
Notes. If 144A Notes are in more than one name or are not in the name of the
actual Holder, consult the instructions on Internal Revenue Service Form W-9,
which may be obtained from the Exchange Agent, for additional guidance on
which number to report.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
If the tendering Holder has not been issued a TIN and has applied for a
number or intends to apply for a number in the near future, write "Applied
For" in the space for the TIN on Substitute Form W-9, sign and date the form
and the Certificate of Awaiting Taxpayer Identification Number and return them
to the Exchange Agent. If such certificate is completed and the Exchange Agent
is not provided with the TIN within 60 days, the Exchange Agent will withhold
31% of all payments made thereafter until a TIN is provided to the Exchange
Agent.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE THEREOF (TOGETHER WITH
144A NOTES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED
DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE
AGENT ON OR PRIOR TO THE EXPIRATION DATE.
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