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Exhibit 99.1
LETTER OF TRANSMITTAL
MAXXIM MEDICAL GROUP, INC.
OFFER TO EXCHANGE
Senior Subordinated Discount Notes due 2009
which have been registered under the Securities Act of
1933, as amended
for all of its outstanding
Senior Subordinated Discount Notes due 2009
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THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON _______________, 2000, UNLESS THE OFFER IS EXTENDED.
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To: The Bank of New York (as "Exchange Agent")
By Registered or Certified Mail: By Overnight Courier or By Hand:
The Bank of New York The Bank of New York
101 Barclay Street 101 Barclay Street
Floor 7 East Ground Level
New York, New York 10286 Corporate Trust Services Window
Attention: Ayikwei Aryeetey, New York, New York 10286
Reorganization Section Attention: Ayikwei Aryeetey,
Reorganization Section
By Facsimile (for Eligible Institutions Only):
(212) 815-6339
Confirm by Telephone:
(212) 815-3687
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
_________, 2000 (the "Prospectus") of Maxxim Medical Group, Inc. ("Maxxim") and
this Letter of Transmittal, which together constitute Maxxim's offer (the
"Exchange Offer") to exchange $1,000 principal amount at maturity of its Senior
Subordinated Discount Notes due 2009 (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 at maturity of its outstanding Senior Subordinated
Discount Notes due 2009 (the "Old Notes"), respectively. The term "Expiration
Date" shall mean 5:00 p.m., New York City time, on _________, 2000, unless
Maxxim, in its reasonable judgment, extends the Exchange Offer, in which case
the term shall mean 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.
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List below the Old Notes to which this Letter of Transmittal relates.
If the space indicated below is inadequate, the Private Placement or
Registration Numbers and Principal Amounts should be listed on a separately
signed schedule affixed hereto.
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DESCRIPTION OF OLD NOTES TENDERED HEREBY
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NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S) PRIVATE AGGREGATE PRINCIPAL
PLACEMENT OR PRINCIPAL AMOUNT
REGISTRATION AMOUNT TENDERED*
NUMBERS REPRESENTED
BY OLD NOTES
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Total
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* Unless otherwise indicated, the Holder will be deemed to have tendered
the full aggregate principal amount represented by such Old Notes. All
tenders must be in integral multiples of $1,000.
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This Letter of Transmittal is to be used (i) if Old Notes are to be
forwarded herewith or (ii) tender of the Old 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.
The term "Holder" with respect to the Exchange Offer means any person
in whose name Old Notes are registered on the books of Maxxim 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 Old Notes must complete
this letter in its entirety.
Holders whose Old Notes are not immediately available or who cannot
deliver their Old Notes and all other documents required hereby to the Exchange
Agent on or prior to the Expiration Date must tender their Old Notes according
to the guaranteed delivery procedure set forth in the Prospectus under the
caption "The Exchange Offer-Guaranteed Delivery Procedures." See Instruction 2.
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[ ] CHECK HERE IF TENDERED 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:_________________________
[ ] CHECK HERE IF YOU ARE A BROKERDEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:__________________________________________________________________________
Address:_______________________________________________________________________
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 Maxxim the principal amount of the Old Notes
indicated above. Subject to, and effective upon, the acceptance for exchange of
such Old Notes tendered hereby, the undersigned hereby exchanges, assigns and
transfers to, or upon the order of, Maxxim all right, title and interest in and
to such Old 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 Maxxim in connection with the Exchange
Offer) to cause the Old 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 Old Notes and to acquire Exchange
Notes issuable upon the exchange of such tendered Old Notes, and that when the
same are accepted for exchange, Maxxim will acquire good and unencumbered title
to the tendered Old Notes, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claim.
The undersigned represents to Maxxim 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, and (ii) neither the undersigned nor any such
other person is engaged or intends to engage in, or has an arrangement or
understanding with any person to participate in, the distribution of such
Exchange Notes. If the undersigned or the person receiving the Exchange Notes
covered hereby is a brokerdealer that is receiving the Exchange Notes for its
own account in exchange for Old Notes that were acquired as a result of
marketmaking activities or other trading activities, the undersigned
acknowledges that it or such other person will deliver a prospectus in
connection with any resale of such Exchange Notes; 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
and any such other person acknowledge that, if they are participating in the
Exchange Offer for the purpose of distributing the Exchange Notes, (i) 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 (ii) 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 Maxxim. 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 Maxxim, the undersigned represents to Maxxim that the
undersigned understands and acknowledges that such 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.
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The undersigned also warrants that it will, upon request, execute and
deliver any additional documents deemed by the Exchange Agent or Maxxim to be
necessary or desirable to complete the exchange, assignment and transfer of
tendered Old Notes. The undersigned further agrees that acceptance of any
tendered Old Notes by Maxxim and the issuance of Exchange Notes in exchange
therefor shall constitute performance in full by Maxxim of its obligations under
the Registration Rights Agreement and that Maxxim shall have no further
obligations or liabilities thereunder for the registration of the Old 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 Maxxim), as more particularly set forth in the Prospectus, Maxxim
may not be required to exchange any of the Old Notes tendered hereby and, in
such event, the Old 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 Old Notes may be withdrawn
at any time prior to the Expiration Date.
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 Old Notes, and any Old 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 an 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 Old 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 (defined in Instruction 2).
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SPECIAL REGISTRATION INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(Please print or Type) (Please print or type)
To be completed ONLY if the Exchange Notes are To be completed ONLY if the Exchange Notes
to be issued in the name of someone other than the are to be sent to someone other than the
undersigned. undersigned, or to the undersigned at an address
other than that shown under "Description of Old
Notes Tendered Hereby."
Name: ______________________________________ Name: ______________________________________
Address:__________________________________________________ Address:_____________________________________________
Employer Identification or Social Security Number: Employer Identification or Social Security Number:
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REGISTERED HOLDER(S) OF NOTES SIGN HERE
(In addition, complete Substitute Form W-9 below)
X___________________________________________________________________________________________
X___________________________________________________________________________________________
Must be signed by registered holder(s) exactly as name(s) appear(s) on
the Old Notes or on a security position listing as the owner of the Old 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:)
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Name and Capacity (full title)
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SIGNATURE GUARANTEE
(If Required-See Instruction 4)
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Address (including zip code) (Signature of Representative of Signature Guarantor)
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(Area Code and Telephone Number) (Name and Title)
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(Taxpayer Identification or Social Security No.) (Name of Plan)
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(Area Code and Telephone Number)
Dated: __________________________________, 2000 Dated: __________________________________, 2000
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PAYOR'S NAME: MAXXIM MEDICAL 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
following Substitute Form W-9 and certify therein that you are subject to backup
withholding.
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SUBSTITUTE Part I PLEASE PROVIDE YOUR TIN IN THE BOX AT THE
Form W9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. ______________________
DEPARTMENT OF THE TREASURY For all accounts, enter TIN in the box at right. Social Security Number
INTERNAL REVENUE SERVICE (For most individuals, this is your social
security number. If you do not have a number, see OR
enclosed Guidelines for Certification of Taxpayer __________________________
Identification Number on Substitute Form W9.) Employer Identification Number
Certify by signing and dating below.
(If awaiting TIN, write "Applied For")
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PAYER'S REQUEST FOR TAXPAYER PART II For Payees exempt from backup withholding, see the enclosed Guidelines for
IDENTIFICATION NUMBER (TIN) Certification of Taxpayer Identification Number on Substitute Form W9 and complete as
instructed therein.
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CERTIFICATION Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification
Number or 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 ("IRS") Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future; and
(2) I am not subject to backup withholding either because (a) I am exempt
from backup withholding, (b) I have not been notified by the IRS that I
am subject to backup withholding as a result of failure to report all
interest or dividends, or (c) the IRS has notified me that I am no
longer subject to backup withholding.
CERTIFICATE 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 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 are no longer subject to
backup withholding, do not cross out item (2). (Also see instructions in the
enclosed Guidelines.)
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The IRS does not require your consent to any provision of this document other
than the certifications required to avoid backup withholding.
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SIGNATURE___________________ DATE _____________, 2000
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE
EXCHANGE NOTES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
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YOU MUST COMPLETE THE FOLLOWING CERTIFICATION IF YOU WROTE "APPLIED FOR" INSTEAD
OF A TIN IN THE SUBSTITUTE FORM W-9.
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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 payment, 31% of all
reportable payments made to me will be withheld until I provide a number, but
will be refunded if I provide a certified taxpayer identification number within
60 days.
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Signature Dated:
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INSTRUCTIONS
FORMING PART OF THE TERMS AND
CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES. All
physically delivered Old Notes, as well as a properly completed and duly
executed copy of this Letter of Transmittal or facsimile thereof, 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 expiration of the
Exchange Offer (the "Expiration Date"). The method of delivery of this Letter of
Transmittal, the Old Notes and any other required documents is at the election
and risk of the Holder, and except as otherwise provided below, the delivery
will be deemed made only when actually received by the Exchange Agent. If such
delivery is by mail, it is suggested that registered mail with return receipt
requested, properly insured, be used.
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 Old 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 Old
Notes, but whose Old Notes are not immediately available and thus cannot deliver
their Old Notes, the Letter of Transmittal or any other required documents to
the Exchange Agent prior to the Expiration Date, may effect a tender if:
(a) the tender is made through a member firm of a registered
national securities exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company having an
office or correspondent in the United States or an "eligible guarantor
institution" within the meaning of Rule 17Ad-15 under the Exchange Act
(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, the
registration number(s) of such Old Notes and the principal amount of
Old Notes tendered, stating that the tender is being made thereby and
guaranteeing that, within three New York Stock Exchange trading days
after the Expiration Date, the Letter of Transmittal (or facsimile
thereof), together with the Old Notes 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 Old Notes in proper
form for transfer and all other documents required by the Letter of
Transmittal, are received by the Exchange Agent within three New York
Stock Exchange trading 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 Old Notes according to the
guaranteed delivery procedures set forth above. Any Holder who wishes to tender
Old Notes pursuant to the guaranteed delivery procedures described above must
ensure that the Exchange Agent receives the Notice of Guaranteed Delivery
relating to such Old Notes prior to the Expiration Date. Failure to comply with
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 Old 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" in the box entitled "Description of Old
Notes Tendered Hereby." A newly issued Note for the principal amount of Old
Notes submitted but not tendered will be sent to such Holder as soon as
practicable after the Expiration Date. All Old Notes delivered to the Exchange
Agent will be deemed to have been tendered in full unless otherwise indicated.
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Old Notes tendered pursuant to the Exchange Offer may be withdrawn at
any time prior to the Expiration Date, after which tenders of Old Notes are
irrevocable. To be effective, a written, telegraphic or facsimile transmission
notice of withdrawal must be timely received by the Exchange Agent. Any such
notice of withdrawal must (i) specify the name of the person having deposited
the Old Notes to be withdrawn (the "Depositor"), (ii) identify the Old Notes to
be withdrawn (including the registration number(s) and principal amount of such
Old Notes, (iii) be signed by the Holder 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 Old Notes register the transfer of such Old Notes
into the name of the person withdrawing the tender and (iv) specify the name in
which any such Old Notes are to be registered, if different from that of the
Depositor. All questions as to the validity, form and eligibility (including
time of receipt) of such notices will be determined by Maxxim, whose
determination shall be final and binding on all parties. Any Old 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 Old Notes so withdrawn are validly retendered. Any Old 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 Old 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 Old 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 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 Old Notes.
Signatures of this Letter of Transmittal or a notice of withdrawal, as
the case may be, must be guaranteed by an Eligible Institution unless the Old
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 Old Notes listed and tendered hereby, no endorsements of the tendered
Old Notes or separate written instruments of transfer or exchange are required.
In any other case, the registered Holder (or acting Holder) must either properly
endorse the Old 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 Old Notes), with the signature on the Old
Notes or bond power guaranteed by an Eligible Institution (except where the Old
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 Maxxim, proper evidence
satisfactory to Maxxim of their authority so to act must be submitted.
5. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering Holders
should indicate, in the applicable box, the name and address in which the
Exchange Notes or substitute Old Notes for principal amounts not tendered or not
accepted for exchange are to be issued, if different from the names and
addresses 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 Old Notes not
tendered or not accepted) will be issued in the name of and sent to the acting
Holder of the Old Notes.
6. TRANSFER TAXES. Maxxim shall pay all transfer taxes, if any,
applicable to the transfer and exchange of Old Notes to it or its order pursuant
to the Exchange Offer. If a transfer tax is imposed for any reason other than
the transfer
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and exchange of Old Notes to Maxxim or its order pursuant to the Exchange Offer,
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 exception therefrom is not submitted
herewith, the amount of such transfer taxes will be collected from the tendering
Holder by the Exchange Agent.
Except as provided in this Instruction 6, it will not be necessary for
transfer stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
7. WAIVER OF CONDITIONS. Maxxim 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 OLD NOTES. Any Holder whose Old
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(s) 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 Maxxim Medical Group, Inc., 10300 49th Street North, Clearwater,
Florida 33762 Attention: Mary Lugris; telephone (727) 561-2100.
10. VALIDITY AND FORM. All questions as to the validity, form,
eligibility (including time of receipt), acceptance of tendered Old Notes and
withdrawal of tendered Old Notes will be determined by Maxxim in its sole
discretion, which determination will be final and binding. Maxxim reserves the
absolute right to reject any and all Old Notes not properly tendered or any Old
Notes Maxxim's acceptance of which would, in the opinion of counsel for Maxxim,
be unlawful. Maxxim also reserves the right, in its reasonable judgment, to
waive any defects, irregularities or conditions of tender as to particular Old
Notes. Maxxim'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 Old Notes must be cured within such time as Maxxim
shall determine. Although Maxxim intends to notify Holders of defects or
irregularities with respect to tenders of Old Notes, neither Maxxim, the
Exchange Agent nor any other person shall incur any liability for failure to
give such notification. Tenders of Old Notes will not be deemed to have been
made until such defects or irregularities have been cured or waived. Any Old
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 by the Exchange Agent to the tendering Holder as soon as practicable
following the Expiration Date.
IMPORTANT TAX INFORMATION
Under federal income tax law, a Holder tendering Old 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 IRS. In addition, payments that are made to such
Holder with respect to tendered Old 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 IRS 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
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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 IRS.
PURPOSE OF SUBSTITUTE FORM W-9. To prevent backup withholding on
payments that are made to a Holder with respect to Old 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 IRS
that he or she is subject to backup withholding as a result of failure to report
all interest or dividends or (iii) the IRS 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 Old Notes. If Old Notes are in more than one name
or are not in the name of the actual Holder, consult the instructions on IRS
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.
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