EXHIBIT 99.1
FORM OF
LETTER OF TRANSMITTAL
AAIPHARMA INC.
Offer to Exchange its
11% Senior Subordinated Exchange Notes due 2010
that have been registered under the Securities Act
for any and all of its outstanding
11% Senior Subordinated Notes due 2010
that were issued and sold in a transaction
exempt from registration under the Securities
Act of 1933, as amended
Pursuant to the Prospectus dated July 1, 2002
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THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON MONDAY, AUGUST 5, 2002, UNLESS THE OFFER IS EXTENDED. TENDERS MAY
BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
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The Exchange Agent for the Exchange Offer is:
Wachovia Bank, National Association
By Mail: By Overnight Carrier: By Hand:
Wachovia Bank, National Association Wachovia Bank, National Association Wachovia Bank, National Association
Corporate Trust Reorganization Corporate Trust Reorganization 40 Broad Street
1525 West W.T. Harris Blvd., 3C3 1525 West W.T. Harris Blvd., 3C3 5th Floor, Suite 550
Charlotte, North Carolina 28288 Charlotte, North Carolina 28262 New York, New York 10004
Attn: Laura Richardson Attn: Laura Richardson
By Facsimile Transmission:
(For Eligible Institutions Only)
(704) 590-7628
Confirm by Telephone
(704) 590-7408
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DELIVERY OF THIS LETTER OF TRANSMITTAL 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 Original Notes" 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 Original Notes 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 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 Original Notes 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 aaiPharma Inc. (the
"Company") may enforce this Letter of Transmittal against such participant.
Holders (as defined below) of Original Notes whose certificates (the
"Certificates") for such Original Notes 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 (as defined in the
Prospectus) or who cannot complete the procedures for book-entry transfer on a
timely basis, must tender their Original Notes according to the guaranteed
delivery procedures set forth in "The Exchange Offer--Guaranteed Delivery
Procedures" in the Prospectus.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
DESCRIPTION OF ORIGINAL NOTES
If blank, please print name and address Original Notes
of registered holder(s) (Attach additional list if necessary)
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Aggregate Principal Amount
Principal of Original Notes
Certificate Amount of Tendered
Number(s)* Original Notes (if less than all)**
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Total:
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* Need not be completed by book-entry holders.
** Original Notes may be tendered in whole or in part in multiples of
$1,000. All Original Notes held shall be deemed tendered unless a lesser
number is specified in this column. See Instruction 4.
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(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE 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
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[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED
DELIVERY IF TENDERED ORIGINAL NOTES ARE 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)
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Window Ticket Number (if any)
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Date of Execution of Notice of Guaranteed Delivery
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Name of Institution which Guaranteed Delivery
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If Guaranteed Delivery is to be made by Book-Entry Transfer:
2
Name of Tendering Institution
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DTC Account Number Transaction Code Number
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[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED
ORIGINAL NOTES ARE 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:
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Address:
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Ladies and Gentlemen:
The undersigned hereby tenders to aaiPharma Inc. (the "Company"), the
above described principal amount of the Company's 11% Senior Subordinated Notes
due 2010 (the "Original Notes") in exchange for an equivalent amount of the
Company's 11% Senior Subordinated Exchange Notes due 2010 (the "Exchange
Notes"), 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 dated July 1, 2002 (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 Original Notes 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 Original
Notes 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
Original Notes, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest) subject only to the
right of withdrawal described in the Prospectus, to (i) deliver Certificates
for Original Notes 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 Notes to be
issued in exchange for such Original Notes, (ii) present Certificates for such
Original Notes for transfer, and to transfer the Original Notes 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 Original Notes,
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
Original Notes 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
Original Notes tendered hereby are 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 Original
Notes 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
Original Notes tendered hereby should be printed above, if they are not already
set forth above, as they appear on the Certificates representing such Original
Notes. The Certificate number(s) and the Original Notes that the undersigned
wishes to tender should be indicated in the appropriate boxes above.
If any tendered Original Notes are not exchanged pursuant to the
Exchange Offer for any reason, or if Certificates are submitted for more
Original Notes than are tendered or accepted for exchange, Certificates for
such nonexchanged or nontendered Original Notes will be returned (or, in the
case of Original Notes tendered by book-entry transfer, such Original Notes
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 Original Notes pursuant to
any one of the procedures described in "The Exchange Offer--Procedures for
Tendering Original Notes" in the Prospectus and in the instructions attached
hereto will, upon the Company's acceptance for exchange of such tendered
Original Notes, constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the 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
Original Notes tendered hereby.
3
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the Exchange
Notes be issued in the name(s) of the undersigned or, in the case of a
book-entry transfer of Original Notes, that such Exchange Notes be credited to
the account indicated above maintained at DTC. If applicable, substitute
Certificates representing Original Notes not exchanged or not accepted for
exchange will be issued to the undersigned or, in the case of a book-entry
transfer of Original Notes, will be credited to the account indicated above
maintained at DTC. Similarly, unless otherwise indicated under "Special
Delivery Instructions," Exchange Notes will be delivered to the undersigned at
the address shown below the undersigned's signature.
By tendering Original Notes 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 Notes 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 Notes 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 Notes. 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 Exchange Act on behalf of whom the
undersigned holds the Original Notes to be exchanged in the Exchange Offer. If
the undersigned is a broker-dealer that will receive Exchange Notes for its own
account in exchange for Original Notes, it represents that the Original Notes
to be exchanged for Exchange Notes were 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 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 Company has agreed that, subject to the provisions of the
Registration Rights Agreement, 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 Notes received in
exchange for Original Notes, where such Original Notes were 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 60 days after the
effective date of the registration statement relating to the Exchange Notes
(the "Effective Date") (subject to extension under certain limited
circumstances described in the Prospectus) or, if earlier, when all such
Exchange Notes have been disposed of by such Participating Broker-Dealer. In
that regard, each broker-dealer who acquired Original Notes for its own account
as a result of market-making or other trading activities (a "Participating
Broker-Dealer"), by tendering such Original Notes 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 causes
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 Notes 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 Notes may be resumed, as the
case may be. If the Company gives such notice to suspend the sale of the
Exchange Notes, it shall extend the 60-day period referred to above during
which Participating Broker-Dealers are entitled to use the Prospectus in
connection with the resale of Exchange Notes 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 Notes or to and including the date on which the Company has given
notice that the sale of Exchange Notes 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 Notes received in exchange
for Original Notes 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 Original Notes 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
Original Notes" above and signing this letter, will be deemed to have tendered
the Original Notes as set forth in such box.
4
IMPORTANT
HOLDERS: SIGN HERE
(Please Complete Substitute Form W-9 herein)
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Signature(s) of Holder(s)
Date:
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(Must be signed by the registered holder(s) exactly as name(s)
appear(s) on Certificate(s) for the Original Notes 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 (full title):
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Address:
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(Include Zip Code)
Area Code and Telephone No.:
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(See Substitute Form W-9 herein)
GUARANTEE OF SIGNATURE(S)
(See Instruction 2 below)
Authorized Signature:
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Name:
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(Please Type or Print)
Title:
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Name of Firm:
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Address:
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(Include Zip Code)
Area Code and Telephone No.:
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Date:
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5
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SPECIAL ISSUANCE INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED--SEE INSTRUCTION 2)
TO BE COMPLETED ONLY if Exchange Notes or Original Notes not tendered are to be
issued in the name of someone other than the registered holder of the Original
Notes whose name(s) appear(s) above.
[ ] Original Notes not tendered to:
[ ] Exchange Notes to:
Name
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(PLEASE PRINT)
Address
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(INCLUDE ZIP CODE)
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(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
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SPECIAL DELIVERY INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED--SEE INSTRUCTION 2)
TO BE COMPLETED ONLY if Exchange Notes or Original Notes not tendered are to be
sent to someone other than the registered holder of the Original Notes whose
name(s) appear(s) above, or such registered holder at an address other than
that shown above.
[ ] Original Notes not tendered to:
[ ] Exchange Notes to:
Name
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(PLEASE PRINT)
Address
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(INCLUDE ZIP CODE)
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6
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 Original Notes" in the
Prospectus and an Agent's Message is not delivered. Certificates, or timely
confirmation of a book-entry transfer of such Original Notes 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. Tenders by book-entry transfer may also be made
by delivering an Agent's Message in lieu thereof. Original Notes may be
tendered in whole or in part in integral multiples of $1,000.
Holders who wish to tender their Original Notes and (i) whose Original
Notes are not immediately available or (ii) who cannot deliver their Original
Notes, 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 Original Notes by properly completing and duly executing a Notice
of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth
in "The Exchange Offer--Guaranteed Delivery Procedures" 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 Original Notes, 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 three New York Stock Exchange trading days after the date of execution
of such Notice of Guaranteed Delivery, all as provided in "The Exchange Offer--
Guaranteed Delivery Procedures" 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 Original Notes 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 as the owner of the Original Notes (the "Holder")) of
Original Notes 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 Original Notes are 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 Original Notes" is inadequate, the Certificate number(s) and/or
the principal amount of Original Notes and any other required information
should be listed on a separate signed schedule that is attached to this Letter
of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Original
Notes will be accepted only in integral multiples of $1,000. If less than all
the Original Notes evidenced by any Certificates submitted is to be tendered,
fill in the principal amount of Original Notes that is to be tendered in the
box entitled "Principal Amount of Original Notes Tendered." In such case, new
Certificate(s) for the remainder of the Original Notes that was evidenced by
your old Certificate(s) will only be
7
sent to the Holder of the Original Notes, promptly after the Expiration Date.
All Original Notes 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 Original Notes 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 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 Original Notes to be withdrawn, the
aggregate principal amount of Original Notes to be withdrawn, and (if
Certificates for Original Notes have been tendered) the name of the registered
Holder of the Original Notes as set forth on the Certificate for the Original
Notes, if different from that of the person who tendered such Original Notes.
If Certificates for the Original Notes have been delivered or otherwise
identified to the Exchange Agent, then prior to the physical release of such
Certificates for the Original Notes, the tendering Holder must submit the
serial numbers shown on the particular Certificates for the Original Notes to
be withdrawn and the signature on the notice of withdrawal must be guaranteed
by an Eligible Institution, except in the case of Original Notes tendered for
the account of an Eligible Institution. If Original Notes have been tendered
pursuant to the procedures for book-entry transfer set forth in the Prospectus
under "The Exchange Offer -- Procedures for Tendering Original Notes," the
notice of withdrawal must specify the name and number of the account at DTC to
be credited with the withdrawal of Original Notes, 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
Original Notes may not be rescinded. Original Notes 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 Original Notes."
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 Original Notes which have been
tendered but which are 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 Original Notes tendered hereby, the signature(s) must
correspond exactly with the name(s) as written on the face of the
Certificate(s) without alteration, enlargement or any change whatsoever.
If any Original Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Original Notes are 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 Original Notes listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) is required unless Exchange Notes are
to be issued in the name of a person other than the registered Holder(s).
Signatures 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 Original Notes 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 Original Notes may require in
accordance with the restrictions on transfer applicable to the Original Notes.
Signatures on such Certificates or bond powers must be guaranteed by an
Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange Notes
are to be issued in the name of a person other than the signer of this Letter
of Transmittal, or if Exchange Notes are 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 Original Notes 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
Original Notes, 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
8
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--Conditions to the Exchange Offer" or any conditions or
irregularities in any tender of Original Notes 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 Original Notes will be deemed
to have been validly made until all irregularities with respect to such tender
have been cured or waived. Neither the Company, any affiliates or assigns of
the Company, the Exchange Agent, nor any other person shall 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. 30% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under the U.S.
Federal income tax law, a Holder whose tendered Original Notes are 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 Original
Notes exchanged pursuant to the Exchange Offer may be subject to 30% backup
withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering Holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
Holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below 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 30% 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, 30% 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 Original Notes or of the last transferee appearing on the
transfers attached to, or endorsed on, the Original Notes. If the Original
Notes are registered in more than one name or are not in the name of the actual
owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to 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-8BEN, signed under penalties of perjury, attesting to that Holder's
exempt status. Please consult the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional guidance
on which holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax.
Rather, the U.S. Federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
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 Original Notes,
by execution of this Letter of Transmittal, shall waive any right to receive
notice of the acceptance of Original Notes 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 Original Notes 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 Original Notes 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.
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13. SECURITY TRANSFER TAXES. Holders who tender their Original
Notes for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, Exchange Notes are to be delivered to, or
are to be issued in the name of, any person other than the registered Holder of
the Original Notes tendered, or if a transfer tax is imposed for any reason
other than the exchange of Original Notes 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.
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PAYER'S NAME: WACHOVIA BANK, NATIONAL ASSOCIATION
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SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN TIN: --------------------------
FORM W-9 THE BOX AT RIGHT AND CERTIFY BY Social Security Number or
DEPARTMENT OF THE TREASURY SIGNING AND DATING BELOW. Employer Identification
INTERNAL REVENUE SERVICE Number
- ------------------------------------------- ---------------------------------------------------------------------
Payer's Request for Taxpayer PART 2--TIN Applied For [ ]
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 am exempt from backup withholding,
or (b) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to
backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding; and
(3) I am a U.S. person (including a U.S. resident alien).
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 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).
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Signature Date
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 30% 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 percent (30%) of all reportable payments made to
me thereafter will be withheld until I provide a number.
Signature Date
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