Exhibit 99.1
LETTER OF TRANSMITTAL
Cybernet Internet Services International, Inc.
Offer to Exchange its
14.0% Senior Notes due 2009
which have been registered under the Securities Act of 1933, as amended,
for any and all of its outstanding
14.0% Senior Notes due 2009
that were issued and sold in a transaction
exempt from registration under the Securities Act
Pursuant to the Prospectus dated October 7, 1999
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON NOVEMBER 8, 1999, UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE
WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent for the Exchange Offer is:
The Bank of New York
By Registered or Certified Mail: Facsimile Transmissions:
The Bank of New York (Eligible Institutions Only)
101 Barclay Street (212) 815-6339
Floor 7 East
New York, New York 10286
Attention: Enrique Lopez
Reorganization Section
By Hand or Overnight Delivery: To Confirm by Telephone
The Bank of New York or for Information Call:
101 Barclay Street, Ground Level (212) 815-2742
Corporate Trust Services Window
New York, New York 10286
Attention: Enrique Lopez
Reorganization Section
----------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER
OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed either if (a) certificates are
to be forwarded herewith, or (b) tenders are to be made pursuant to the
procedures for tender by book-entry transfer set forth under "The Exchange
Offer-Procedures for Tendering" in the Prospectus and an Agent's Message (as
defined below) is not delivered. Certificates, or book-entry confirmation of a
book-entry transfer of such Outstanding Debt into the
Exchange Agent's account at The Depository Trust Company ("DTC"), as well as
this Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to November 8, 1999 (the
"Expiration Date"). Tenders by book-entry transfer also may be made by
delivering an Agent's Message in lieu of this Letter of Transmittal. The term
"book-entry confirmation" means a confirmation of a book-entry transfer of
Outstanding Debt into the Exchange Agent's account at DTC. The term "Agent's
Message" means a message, transmitted by DTC to and received by the Exchange
Agent and forming a part of a book-entry confirmation, which states that DTC
has received an express acknowledgment from the tendering participant, which
acknowledgment states that such participant has received and agrees to be bound
by this Letter of Transmittal and that Cybernet Internet Services
International, Inc., a Delaware corporation (the "Company"), may enforce this
Letter of Transmittal against such participant.
Holders (as defined below) of Outstanding Debt whose certificates (the
"Certificates") for such Outstanding Debt are not immediately available or who
cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date or who cannot complete the
procedures for book-entry transfer on a timely basis must tender their
Outstanding Debt according to the guaranteed delivery procedures set forth in
"The Exchange Offer--Procedures for Tendering" in the Prospectus.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE EXCHANGE AGENT.
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NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
DESCRIPTION OF OUTSTANDING NOTES
- --------------------------------------------------------------------------------
Outstanding Debt
Registered Holder(s) (Attach additional list if necessary)
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Principal Amount of
Aggregate Principal Outstanding Debt
Certificate Amount of Tendered
If blank, please print name and address Number(s)* Outstanding Debt (if less than all)**
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
Total:
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*Need not be completed by book-entry Holders.
** Outstanding Debt may be tendered in whole or in part in multiples of
$1,000. All Outstanding Debt held shall be deemed tendered unless a
lesser number is specified in this column. See Instruction 4.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_]CHECK HERE IF TENDERED OUTSTANDING DEBT IS BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution ______________________________________________
DTC Account Number ________________Transaction Code Number _________________
[_]CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OUTSTANDING DEBT IS BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING (SEE INSTRUCTION 1):
Name(s) of Registered Holder(s) ____________________________________________
Window Ticket Number (if any) ______________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution which Guaranteed Delivery ______________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution ______________________________________________
DTC Account Number ________________Transaction Code Number _________________
[_]CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OUTSTANDING
DEBT IS TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[_]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: ___________________________________________________________________
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Ladies and Gentlemen:
The undersigned hereby tenders to Cybernet Internet Services International,
Inc., a Delaware corporation (the "Company"), the above described principal
amount of the Company's 14.0% Senior Notes due 2009 (the "Outstanding Debt") in
exchange for an equivalent amount of the Company's 14.0% Senior Notes due 2009
(the "Exchange Debt"), which have been registered under the Securities Act of
1933, as amended (the "Securities Act"), upon the terms and subject to the
conditions set forth in the Prospectus October 7, 1999 (as the same may be
amended or supplemented from time to time, the "Prospectus"), receipt of which
is hereby acknowledged, and in this Letter of Transmittal (which, together with
the Prospectus, constitute the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Outstanding Debt tendered herewith in accordance with the terms
and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Company all right, title and interest in and to such Outstanding
Debt as is being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company in connection with the Exchange Offer) with respect to the tendered
Outstanding Debt, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with and interest) subject only to
the right of withdrawal described in the Prospectus, to (i) deliver
Certificates for Outstanding Debt to the Company together with all accompanying
evidences of transfer and authenticity to, or upon the order of, the Company,
upon receipt by the Exchange Agent, as the undersigned's agent, of the Exchange
Debt to be issued in exchange for such Outstanding Debt, (ii) present
Certificates for such Outstanding Debt for transfer, and to transfer the
Outstanding Debt on the books of the Company, and (iii) receive for the account
of the Company all benefits and otherwise exercise all rights of beneficial
ownership of such Outstanding Debt, all in accordance with the terms and
conditions of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, exchange, sell, assign and transfer the
Outstanding Debt tendered hereby and that, when the same is accepted for
exchange, the Company will acquire good, marketable and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances,
and that the Outstanding Debt tendered hereby is not subject to any adverse
claims or proxies. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Company or the Exchange Agent to be
necessary or desirable to complete the exchange, assignment and transfer of the
Outstanding Debt tendered hereby, and the undersigned will comply with its
obligations under the Registration Rights Agreement. The undersigned has read
and agrees to all of the terms of the Exchange Offer.
The name(s) and address(es) of the registered Holder(s) of the Outstanding
Debt tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Certificates representing such Outstanding Debt.
The Certificate number(s) and the Outstanding Debt that the undersigned wishes
to tender should be indicated in the appropriate boxes above.
If any tendered Outstanding Debt is not exchanged pursuant to the Exchange
Offer for any reason, or if Certificates are submitted for more Outstanding
Debt than are tendered or accepted for exchange, Certificates for such
nonexchanged or nontendered Outstanding Debt will be returned (or, in the case
of Outstanding Debt tendered by book-entry transfer, such Outstanding Debt will
be credited to an account maintained at DTC), without expense to the tendering
Holder, promptly following the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Outstanding Debt pursuant to any
one of the procedures described in "The Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions attached hereto will, upon
the Company's acceptance for exchange of such tendered Outstanding Debt,
constitute a binding agreement between the undersigned and the Company upon the
terms and subject to the
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conditions of the Exchange Offer. The undersigned recognizes that, under
certain circumstances set forth in the Prospectus, the Company may not be
required to accept for exchange any of the Outstanding Debt tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Debt be
issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Outstanding Debt, that such Exchange Debt be credited to the
account indicated above maintained at DTC. If applicable, substitute
Certificates representing Outstanding Debt not exchanged or not accepted for
exchange will be issued to the undersigned or, in the case of a book-entry
transfer of Outstanding Debt, will be credited to the account indicated above
maintained at DTC. Similarly, unless otherwise indicated under "Special
Delivery Instructions," please deliver Exchange Debt to the undersigned at the
address shown below the undersigned's signature.
By tendering Outstanding Debt and executing this Letter of Transmittal or
effecting delivery of an Agent's Message in lieu thereof, the undersigned
hereby represents and agrees that (i) the undersigned is not an "affiliate" of
the Company, (ii) any Exchange Debt to be received by the undersigned is being
acquired in the ordinary course of its business, (iii) the undersigned has no
arrangement or understanding with any person to participate in a distribution
(within the meaning of the Securities Act) of Exchange Debt to be received in
the Exchange Offer, and (iv) if the undersigned is not a broker-dealer, the
undersigned is not engaged in, and does not intend to engage in, a distribution
(within the meaning of the Securities Act) of such Exchange Debt. The Company
may require the undersigned, as a condition to the undersigned's eligibility to
participate in the Exchange Offer, to furnish to the Company (or an agent
thereof) in writing information as to the number of "beneficial owners" within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on behalf of whom the undersigned holds the Outstanding
Debt to be exchanged in the Exchange Offer. If the undersigned is a broker-
dealer that will receive Exchange Debt for its own account in exchange for
Outstanding Debt, it represents that the Outstanding Debt to be exchanged for
Exchange Debt was acquired by it as a result of market-making activities or
other trading activities and acknowledges that it will deliver a Prospectus in
connection with any resale of such Exchange Debt; 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 Company has agreed that, subject to the provisions of the Registration
Rights Agreement relating to the Outstanding Debt, the Prospectus, as it may be
amended or supplemented from time to time, may be used by a Participating
Broker-Dealer (as defined below) in connection with resales of Exchange Debt
received in exchange for Outstanding Debt, where such Outstanding Debt was
acquired by such Participating Broker-Dealer for its own account as a result of
market-making activities or other trading activities, for a period ending 180
days after the effective date of the registration statement relating to the
Exchange Debt (the "Effective Date") (subject to extension under certain
limited circumstances described in the Prospectus) or, if earlier, when all
such Exchange Debt has been disposed of by such Participating Broker-Dealer. In
that regard, each broker-dealer who acquired Outstanding Debt for its own
account as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), by tendering such Outstanding Debt and
executing this Letter of Transmittal or effecting delivery of an Agent's
Message in lieu thereof, agrees that, upon receipt of notice from the Company
of the occurrence of any event or the discovery of any fact which makes any
statement contained or incorporated by reference in the Prospectus untrue in
any material respect or which cause the Prospectus to omit to state a material
fact necessary in order to make the statements contained or incorporated by
reference therein, in light of the circumstances under which they were made,
not misleading or of the occurrence of certain other events specified in the
Registration Rights Agreement, such Participating Broker-Dealer will suspend
the sale of Exchange Debt pursuant to the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented Prospectus to the
Participating Broker-Dealer or the Company has given notice that the sale of
the Exchange Debt may be resumed, as the case may be. If the Company gives such
notice to suspend the sale of the Exchange Debt, it shall extend the 180-day
period referred to above during which Participating Broker-
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Dealers are entitled to use the Prospectus in connection with the resale of
Exchange Debt by the number of days during the period from and including the
date of the giving of such notice to and including the date when Participating
Broker-Dealers shall have received copies of the supplemented or amended
Prospectus necessary to permit resales of the Exchange Debt or to and including
the date on which the Company has given notice that the sale of Exchange Debt
may be resumed, as the case may be.
As a result, a Participating Broker-Dealer who intends to use the Prospectus
in connection with resales of Exchange Debt received in exchange for
Outstanding Debt pursuant to the Exchange Offer must notify the Company, or
cause the Company to be notified, on or prior to the Expiration Date, that it
is a Participating Broker-Dealer. Such notice may be given in the space
provided above or may be delivered to the Exchange Agent at the address set
forth in the Prospectus under "The Exchange Offer--Exchange Agent."
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Outstanding Debt tendered hereby. All
authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
The undersigned, by completing the box entitled "Description of Outstanding
Debt" above and signing this letter, will be deemed to have tendered the
Outstanding Debt as set forth in such box.
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IMPORTANT
HOLDERS: SIGN HERE
(Please Complete Substitute Form W-9 herein)
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Signature(s) of Holder(s)
Date: _____________________________
(Must be signed by the registered holder(s) exactly as name(s) appear(s)
on Certificate(s) for the Outstanding Debt hereby tendered or on a
security position listing or by person(s) authorized to become registered
holder(s) by certificates and documents transmitted herewith. If signature
is by trustee, executor, administrator, guardian, attorney-in-fact,
officer of corporation or other person acting in a fiduciary or
representative capacity, please provide the following information and see
Instruction 2 below.)
Name(s): __________________________________________________________________
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(Please Print)
Capacity(ies): ____________________________________________________________
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Address: __________________________________________________________________
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(Include Zip Code)
Telephone Number (with U.S. area code or international prefix): ___________
(See Substitute Form W-9 herein)
GUARANTEE OF SIGNATURE(S)
(See Instruction 2 below)
Authorized Signature: _____________________________________________________
Name: _____________________________________________________________________
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(Please Type or Print)
Title: ____________________________________________________________________
Name of Firm: _____________________________________________________________
Address: __________________________________________________________________
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(Include Zip Code)
Telephone Number (with U.S. area code or international prefix): ___________
Date: _____________________________
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SPECIAL ISSUANCE INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED--
SEE INSTRUCTION 2)
TO BE COMPLETED ONLY if Exchange
Debt or Outstanding Debt not
tendered is to be issued in the
name of someone other than the
registered Holder of the
Outstanding Debt whose name(s)
appear(s) above.
[_] Outstanding Debt not tendered
to:
[_] Exchange Debt to:
Name: ____________________________
(PLEASE PRINT)
Address: _________________________
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----------------------------------
----------------------------------
(INCLUDE ZIP-CODE)
----------------------------------
(TAX IDENTIFICATION OR
SOCIAL SECURITY NUMBER)
SPECIAL ISSUANCE INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED--
SEE INSTRUCTION 2)
TO BE COMPLETED ONLY if Exchange
Debt or Outstanding Debt not
tendered is to be sent to someone
other than the registered Holder
of the Outstanding Debt whose
name(s) appear(s) above, or such
registered Holder at an address
other than that shown above.
[_] Outstanding Debt not tendered
to:
[_] Exchange Debt to:
Name: ____________________________
(PLEASE PRINT)
Address: _________________________
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----------------------------------
----------------------------------
(INCLUDE ZIP-CODE)
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INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith, or (b) tenders are to be made
pursuant to the procedures for tender by book-entry transfer set forth in "The
Exchange Offer--Procedures for Tendering" in the Prospectus and an Agent's
Message is not delivered. Certificates, or timely confirmation of a book-entry
transfer of such Outstanding Debt into the Exchange Agent's account at DTC, as
well as this Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees, and any other
documents required by this Letter of Transmittal, must be received by the
Exchange Agent at its address set forth herein on or prior to the expiration
date of the Exchange Offer (the "Expiration Date"). Tenders by book-entry
transfer may also be made by delivering an Agent's Message in lieu thereof.
Outstanding Debt may be tendered in whole or in part in integral multiples of
$1,000.
Holders who wish to tender their Outstanding Debt and (i) whose Outstanding
Debt is not immediately available, or (ii) who cannot deliver their Outstanding
Debt, this Letter of Transmittal and all other required documents to the
Exchange Agent on or prior to the Expiration Date, or (iii) who cannot complete
the procedures for delivery by book-entry transfer on a timely basis, may
tender their Outstanding Debt by properly completing and duly executing a
Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures
set forth in "The Exchange Offer--Procedures for Tendering" in the Prospectus.
Pursuant to such procedures: (i) such tender must be made by or through an
Eligible Institution (as defined below); (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form made
available by the Company, must be received by the Exchange Agent on or prior to
the Expiration Date; and (iii) the Certificates (or a book-entry confirmation)
representing all tendered Outstanding Debt, in proper form for transfer,
together with a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees and any
other documents required by this Letter of Transmittal, must be received by the
Exchange Agent within five business days after the Expiration Date, all as
provided in "The Exchange Offer--Procedures for Tendering" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice of Guaranteed
Delivery. For Outstanding Debt to be properly tendered pursuant to the
guaranteed delivery procedure, the Exchange Agent must receive a Notice of
Guaranteed Delivery on or prior to the Expiration Date. As used herein and in
the Prospectus, "Eligible Institution" means a firm or other entity identified
in Rule 17Ad-15 under the Exchange Act as "an eligible guarantor institution,"
including (as such terms are defined therein): (i) a bank; (ii) a broker,
dealer, municipal securities broker or dealer or government securities broker
or dealer; (iii) a credit union; (iv) a national securities exchange,
registered securities association or clearing agency; or (v) a savings
association that is a participant in a Securities Transfer Association.
The method of delivery of Certificates, this Letter of Transmittal and all
other required documents is at the option and sole risk of the tendering
Holder, and the delivery will be deemed made only when actually received by the
Exchange Agent. If delivery is by mail, then registered mail with return
receipt requested, properly insured, or overnight delivery service is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering Holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required if:
i. this Letter of Transmittal is signed by the registered Holder (which
term, for purposes of this document, shall include any participant in
DTC whose name appears on a security position listing
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as the owner of the Outstanding Debt (the "Holder")) of Outstanding
Debt tendered herewith, unless such Holder(s) has completed either
the box entitled "Special Issuance Instructions" or the box entitled
"Special Delivery Instructions" above; or
ii. such Outstanding Debt is tendered for the account of a firm that is
an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned "Description
of Outstanding Debt" is inadequate, the Certificate number(s) and/or the
principal amount of Outstanding Debt and any other required information should
be listed on a separate signed schedule which is attached to this Letter of
Transmittal.
4. Partial Tenders and Withdrawal Rights. Tenders of Outstanding Debt will be
accepted only in integral multiples of $1,000. If less than all the Outstanding
Debt evidenced by any Certificate submitted is to be tendered, fill in the
principal amount of Outstanding Debt which is to be tendered in the box
entitled "Principal Amount of Outstanding Debt Tendered." In such case, new
Certificate(s) for the remainder of the Outstanding Debt that was evidenced by
your old Certificate(s) will only be sent to the Holder of the Outstanding
Debt, promptly after the Expiration Date. All Outstanding Debt represented by
Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Outstanding Debt may be
withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to that time, a written notice of
withdrawal or facsimile transmission of such notice of withdrawal must be
timely received by the Exchange Agent at one of its addresses set forth above
or in the Prospectus on or prior to the Expiration Date. Any such notice of
withdrawal must specify the name of the person who tendered the Outstanding
Debt to be withdrawn, the aggregate principal amount of Outstanding Debt to be
withdrawn, and (if Certificates or Outstanding Debt have been tendered) the
name of the registered Holder of the Outstanding Debt as set forth on the
Certificate for the Outstanding Debt, if different from that of the person who
tendered such Outstanding Debt. If Certificates for the Outstanding Debt have
been delivered or otherwise identified to the Exchange Agent, then prior to the
physical release of such Certificates for the Outstanding Debt, the tendering
Holder must submit the serial numbers shown on the particular Certificates for
the Outstanding Debt to be withdrawn and the signature on the notice of
withdrawal must be guaranteed by an Eligible Institution, except in the case of
Outstanding Debt tendered for the account of an Eligible Institution. If
Outstanding Debt has been tendered pursuant to the procedures for book-entry
transfer set forth in the Prospectus under "The Exchange Offer--Procedures for
Tendering," the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawal of Outstanding Debt, in which
case a notice of withdrawal will be effective if delivered to the Exchange
Agent by written, telegraphic, telex or facsimile transmission. Withdrawals of
tenders of Outstanding Debt may not be rescinded. Outstanding Debt properly
withdrawn will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any subsequent time on or prior to the
Expiration Date by following any of the procedures described in the Prospectus
under "The Exchange Offer-- Procedures for Tendering."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
The Company, any affiliates or assigns of the Company, the Exchange Agent or
any other person shall not be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability for failure
to give any such notification. Any Outstanding Debt which has been tendered but
which is withdrawn will be returned to the Holder thereof without cost to such
Holder promptly after withdrawal.
5. Signatures on Letter of Transmittal, Assignments and Endorsements. If this
Letter of Transmittal is signed by the registered Holder(s) of the Outstanding
Debt 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 any Outstanding Debt tendered hereby is owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
10
If any tendered Outstanding Debt is registered in different name(s) on
several Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal (or facsimiles thereof) as there are different
registrations of Certificates.
If this Letter of Transmittal 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, unless waived by the Company,
must submit proper evidence satisfactory to the Company, in its sole
discretion, of each such person's authority to so act.
When this Letter of Transmittal is signed by the registered owner(s) of the
Outstanding Debt listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) is required unless Exchange Debt is to
be issued in the name of a person other than the registered Holder(s).
Signature(s) on such Certificate(s) or bond power(s) must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the registered
owner(s) of the Outstanding Debt listed, the Certificates must be endorsed or
accompanied by appropriate bond powers, signed exactly as the name or names of
the registered owner(s) appear(s) on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information
as the Company or the Trustee for the Outstanding Debt may require in
accordance with restrictions on transfer applicable to the Outstanding Debt.
Signatures on such Certificates or bond powers must be guaranteed by an
Eligible Institution.
6. Special Issuance and Delivery Instructions. If Exchange Debt is to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if Exchange Debt is to be sent to someone other than the signer
of this Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Outstanding Debt not exchanged will be returned by mail or, if
tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC. See Instruction 4.
7. Irregularities. The Company will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time of
receipt) and acceptance for exchange of any tender of Outstanding Debt, which
determination shall be final and binding on all parties. The Company reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance of which, or exchange for which, may, in the view
of counsel to the Company be unlawful. The Company also reserves the absolute
right, subject to applicable law, to waive any of the conditions of the
Exchange Offer set forth in the Prospectus under "The Exchange Offer" or any
conditions or irregularities in any tender of Outstanding Debt of any
particular Holder whether or not similar conditions or irregularities are
waived in the case of other Holders. The Company's interpretation of the terms
and conditions of the Exchange Offer (including this Letter of Transmittal and
the instructions hereto) will be final and binding. No tender of Outstanding
Debt will be deemed to have been validly made until all irregularities with
respect to such tender have been cured or waived. The Company, any affiliates
or assigns of the Company, the Exchange Agent, or any other person shall not be
under any duty to give notification of any irregularities in tenders or incur
any liability for failure to give such notification.
8. Questions, Requests for Assistance and Additional Copies. Questions and
requests for assistance may be directed to the Exchange Agent at its address
and telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. 31% Backup Withholding; Substitute Form W-9. Under the U.S. Federal income
tax law, a Holder whose tendered Outstanding Debt is accepted for exchange is
required to provide the Exchange Agent with such Holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 below. 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 to such Holders or other payees with respect to Outstanding Debt
exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
11
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 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 Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-
9. If the Holder furnishes the Exchange Agent with its TIN within 60 days after
the date of the Substitute Form W-9, the amounts retained during the 60-day
period will be remitted to the Holder and no further amounts shall be retained
or withheld from payments made to the Holder thereafter. If, however, the
Holder has not provided the Exchange Agent with its TIN within such 60-day
period, amounts withheld will be remitted to the IRS as backup withholding. In
addition, 31% of all payments made thereafter will be withheld and remitted to
the IRS until a correct TIN is provided.
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 Outstanding Debt or of the last transferee appearing on the transfers
attached to, or endorsed on, the Outstanding Debt. If the Outstanding Debt is
registered in more than one name or is not in the name of the actual owner,
consult the "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" below 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 the backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, 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 "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" below 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.
10. Waiver of Conditions. The Company reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
11. No Conditional Tenders. No alternative, conditional or contingent tenders
will be accepted. All tendering Holders of Outstanding Debt, by execution of
this Letter of Transmittal, shall waive any right to receive notice of the
acceptance of Outstanding Debt for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated to
give notice of any defect or irregularity with respect to any tender of
Outstanding Debt nor shall any of them incur any liability for failure to give
any such notice.
12. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Outstanding Debt have been lost, destroyed or stolen, the Holder
should promptly notify the Exchange Agent. The Holder will then be instructed
as to the steps that must be taken in order to replace the Certificate(s). This
Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost, destroyed or stolen Certificate(s) have been
followed.
13. Security Transfer Taxes. Holders who tender their Outstanding Debt for
exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, Exchange Debt is to be delivered to, or is to be issued
in the name of, any person other than the registered Holder of the Outstanding
Debt tendered, or if a transfer tax is imposed for any reason other than the
exchange of Outstanding Debt in connection with the Exchange Offer, then the
amount of any such transfer tax (whether imposed on the registered Holder or
any other persons) will be payable by the tendering Holder. If satisfactory
evidence of payment of such taxes or exemption therefrom is not submitted with
the Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering Holder.
12
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the
Payer.-- Social Security numbers have nine digits separated by two hyphens:
i.e., 000-00-0000. Employer identification numbers have nine digits separated
by only one hyphen: i.e., 00-0000000. The table below will help determine the
number to give the payer.
- --------------------------------------------
Give the
SOCIAL SECURITY
For this type of account: number of--
- --------------------------------------------
1. An individual's account The individual
2. Two or more individuals The actual owner
(joint account) of the account
or, if combined
funds, the first
individual on
the account(1)
3. Husband and wife The actual owner
of the account
or, if joint
funds, either
person(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if
account) the minor is the
only
contributor, the
minor(1)
6. Account in the name of The ward, minor
guardian or committee or incompetent
for a designated ward, person(3)
minor or incompetent
person
7.a. The usual revocable The grantor-
savings trust (grantor trustee(1)
is also trustee)
b. So-called trust account The actual
that is not a legal or owner(1)
valid trust under State
law
- --------------------------------------------
Give the EMPLOYER
IDENTIFICATION
For this type of account: number of--
- --------------------------------------------
8. Sole proprietorship The owner(4)
account
9. A valid trust, estate The legal entity
or pension trust (Do not furnish
the identifying
number of the
personal
representative
or trustee
unless the legal
entity itself is
not designated
in the account
title)(5)
10. Corporate account The corporation
11. Religious, charitable, The organization
or educational
organization account
12. Partnership account The partnership
13. Association, club or The organization
other tax-exempt
organization
14. A broker or registered The broker or
nominee nominee
15. Account with the The public
Department of entity
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.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner. If the owner does not have an employer
identification number, furnish the owner's social security number.
(5) List first and circle the name of the legal trust, estate or pension trust.
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.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you do not have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card (for
individuals), or Form SS-4, Application for Employer Identification Number
(for businesses and all other entities), at the local office of the Social
Security Administration or the Internal Revenue Service (the "IRS") and apply
for a number.
Payees and Payments Exempt from Backup Withholding
The following is a list of payees exempt from backup withholding and for
which no information reporting is required. For interest and dividends, all
listed payees are exempt except item (9). For broker transactions, payees
listed in items (1) through (13) and a person registered under the Investment
Advisors Act of 1940 who regularly acts as a broker are exempt. Payments
subject to reporting under sections 6041 and 6041A are generally exempt from
backup withholding only if made to payees described in items (1) through (7),
except a corporation (other than certain hospitals described in Regulations
section 1.6041-3(c)) that provides medical and health care services or bills
and collects payments for such services is not exempt from backup withholding
or information reporting. Only payees described in items (1) through (5) are
exempt from backup withholding for barter exchange transactions and patronage
dividends.
(1) An organization exempt from tax under section 501(a), or an IRA, or a
custodial account under section 403(b)(7), if the account satisfies the
requirements of section 401(f)(2).
(2) The United States or any of its agencies or instrumentalities.
(3) A state, the District of Columbia, a possession of the United States or
any of their political subdivisions or instrumentalities.
(4) A foreign government or any of its political subdivisions, agencies or
instrumentalities.
(5) An international organization or any of its agencies or instrumentalities.
(6) A corporation.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the United
States, the District of Columbia or a possession of the United States.
(9) A futures commission merchant registered with the Commodity Futures
Trading Commission.
(10) A real estate investment trust.
(11) An entity registered at all times during the tax year under the
Investment Company Act of 1940.
(12) A common trust fund operated by a bank under section 584(a).
(13) A financial institution.
(14) A middleman known in the investment community as a nominee or listed in
the most recent publication of the American Society of Corporate Secretaries,
Inc., Nominee List.
(15) A trust exempt from tax under section 664 or described in section 4947.
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 alien 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 substitute 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,
SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER. IF YOU ARE A NON-RESIDENT
ALIEN OR A FOREIGN ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE WITH PAYER A
COMPLETED INTERNAL REVENUE FORM W-8 (CERTIFICATE OF FOREIGN STATUS).
Certain payments other than interest, dividends and patronage dividends that
are not subject to information reporting are also not subject to backup
withholding. For details, see sections 6041, 6041A, 6042, 6044, 6045, 6049 and
6050A.
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 the IRS. The 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 to a payer. Certain
penalties may also apply.
Penalties
(1) Penalty for Failure to Furnish Taxpayer Identification Number.--If you
fail to furnish your correct 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.--Willfully 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.
2
PAYER'S NAME: THE BANK OF NEW YORK
SUBSTITUTE
Form W-9 Part 1--PLEASE PROVIDE YOUR TIN: __________________
Department of the TIN IN THE BOX AT RIGHT AND Social security number
Treasury Internal CERTIFY BY SIGNING AND or Employer
Revenue Service DATING BELOW. Identification Number
- --------------------------------------------------------------------------------
Part 2--TIN Applied For [_]
Payer's Request for Taxpayer Identification Number (TIN)
- --------------------------------------------------------------------------------
Certification: Under penalties of perjury, I certify that:
(1) the number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me); and
(2) I am not subject to backup withholding either because: (a) 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 (b) 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 subject to backup withholding because
of underreporting of interest or dividends on your tax return. However, if
after being notified by the IRS that you were subject to backup withholding,
you received another notification from the IRS that you were no longer
subject to backup withholding, do not cross out item (2). (Also see
instructions in the enclosed Guidelines.)
- --------------------------------------------------------------------------------
Signature ___________________________________ Date ________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU IN CONNECTION WITH THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING
(OR WILL SOON APPLY FOR) A TAXPAYER IDENTIFICATION NUMBER
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 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 by the
time of the exchange, thirty-one (31%) percent of all reportable payments
made to me thereafter will be withheld until I provide a number.
Signature ___________________________________ Date ________________