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EXHIBIT 99.1
EMPLOYEE SOLUTIONS, INC.
LETTER OF TRANSMITTAL
OFFER FOR ALL OUTSTANDING
10% SENIOR NOTES DUE 2004 ("ORIGINAL NOTES")
CUSIP NOS. 292166 AA 3 AND 292166 AB 1
IN EXCHANGE FOR
SERIES B 10% SENIOR NOTES DUE 2004 ("EXCHANGE NOTES")
CUSIP NO. 292166 AC 9
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
PURSUANT TO THE PROSPECTUS DATED APRIL 6, 1998
THE EXCHANGE OFFER AND WITHDRAWAL PERIOD WILL
EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
MAY 11, 1998, UNLESS EXTENDED (THE "EXPIRATION DATE")
DELIVER TO THE HUNTINGTON NATIONAL BANK, the Exchange Agent:
By Mail, Overnight Courier or Hand Delivery:
The Huntington National Bank
Attn: Corporate Trust
41 South High Street, 11th Floor
Columbus, OH 43215
Facsimile Transmission:
(614) 480-5223
(For Eligible Institutions Only)
Confirm by Telephone:
(614) 480-3888
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA A FACSIMILE NUMBER
OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges receipt of the Prospectus dated April 6, 1998
(the "Prospectus") of Employee Solutions, Inc. (the "Company") and this Letter
of Transmittal, which together constitute the Company's offer (the "Exchange
Offer") to exchange an aggregate principal amount of up to $85 million of its
newly issued Series B 10% Senior Notes due 2004 (the "Exchange Notes") that have
been registered under the Securities Act of 1933, as amended (the "Securities
Act") for a like amount of its issued and outstanding 10% Senior Notes due 2004
(the "Original Notes") that were issued and sold in a transaction exempt from
registration under the Securities Act.
For each Original Note accepted for exchange, the holder of such Original
Note will receive an Exchange Note having a principal amount equal to that of
the surrendered Original Note. The Exchange Notes will bear interest from the
most recent date to which interest has been paid on the Original Notes, or if no
interest has yet been paid, from October 21, 1997. Accordingly, registered
holders of Exchange Notes on the relevant record date for the first interest
payment date following consummation of the Exchange Offer will receive interest
accruing from the most recent date to which interest has been paid or, if no
interest has been paid, from October 21, 1997. Original Notes accepted for
exchange will cease to accrue interest from and after the
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date of consummation of the Exchange Offer. Holders whose Original Notes are
accepted for exchange will not receive any payment in respect of interest on
such Original Notes otherwise payable on any interest payment date the record
date for which occurs on or after consummation of the Exchange Offer.
This Letter of Transmittal is to be used (a) if certificates for Original
Notes are to be physically delivered to the Exchange Agent herewith or if a
tender of certificates for Original Notes, if available, is to be made by
book-entry transfer to the account maintained by the Exchange Agent at the
Depository Trust Company (the "Book-Entry Transfer Facility"), or (b) if tenders
are to be made according to the guaranteed delivery procedures set forth in the
Prospectus under "The Exchange Offer -- Guaranteed Delivery Procedures." Holders
of Original Notes whose certificates are not immediately available, or who are
unable to deliver their certificates or confirmation of the book-entry tender of
their Original Notes into the Exchange Agent's account at the Book-Entry
Transfer Facility (a "Book-Entry Confirmation") and all other documents required
hereby to the Exchange Agent before the Expiration Date, must tender their
Original Notes according to the guaranteed delivery procedures set forth in "The
Exchange Offer -- Guaranteed Delivery Procedures" in the Prospectus. See
Instruction 1.
The Exchange Offer will expire at 5:00 p.m., New York City time, on May 11,
1998 (the "Expiration Date") unless extended, in which case the term "Expiration
Date" shall mean the last time and date to which the Exchange Offer is extended.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Prospectus.
The undersigned has completed the appropriate boxes below and signed this
Letter to indicate the action the undersigned desires to take with respect to
the Exchange Offer.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING
ANY BOX BELOW. THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE
FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE
PROSPECTUS AND LETTER OF TRANSMITTAL SHOULD BE DIRECTED TO THE EXCHANGE AGENT AT
(614)480-3888 OR AT ITS ADDRESS SET FORTH ABOVE.
Holders who wish to tender their Original Notes must complete the table in
Box 1 and complete and sign in Box 5.
List below the Original Notes to which this Letter of Transmittal relates.
If the space below is inadequate, the certificate numbers and amount of Original
Notes should be listed on a separate signed schedule attached hereto.
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PLEASE READ THE ENTIRE LETTER OR TRANSMITTAL, INCLUDING THE
ACCOMPANYING INSTRUCTIONS, CAREFULLY BEFORE CHECKING ANY BOX BELOW.
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BOX 1
DESCRIPTION OF ORIGINAL NOTES TENDERED
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NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE USE PRE-ADDRESSED LABEL OR FILL IN EXACTLY
AS TENDERED CERTIFICATE(S)
NAME(S) APPEAR(S) ON CERTIFICATE(S)) (ATTACH SIGNED ADDITIONAL LIST IF NECESSARY)
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AGGREGATE
PRINCIPAL
AMOUNT AGGREGATE
CERTIFICATE REPRESENTED BY AMOUNT
NUMBER(S)* CERTIFICATE(S)** TENDERED**
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Total Principal
Amount*
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* DOES NOT need to be completed if Original Notes are tendered by book-entry
transfer.
** Unless otherwise indicated, the holder will be deemed to have tendered the
entire stated face amount of all Original Notes represented by tendered
certificates. See Instruction 3.
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BOX 2
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5, 6 AND 7)
To be completed ONLY if Exchange Notes are to be issued in the name
of someone other than the person whose signature appears in Box 5 of this
Letter of Transmittal, or if Original Notes delivered by book-entry
transfer which are not accepted for exchange are to be returned by credit
to an account maintained at the Book-Entry Transfer Facility other than
the account indicated above.
Issue 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)
[ ] Credit undercharged Original Notes delivered by book-entry transfer to
the Book-Entry Transfer Facility account set forth below:
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BOOK-ENTRY TRANSFER FACILITY
ACCOUNT NUMBER, IF APPLICABLE
(COMPLETE SUBSTITUTE FORM W-9)
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BOX 3
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5, 6 AND 7)
To be completed ONLY if certificates for Exchange Notes are to be
sent to someone other than the person whose signature appears in Box 2 of
this Letter of Transmittal or such person at an address other than that
shown in Box 1, entitled "Description of Original Notes Tendered."
Mail and Deliver 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)
NOTE: SIGNATURES MUST BE PROVIDED UNDER BOX TWO
PLEASE READ CAREFULLY
THE ACCOMPANYING INSTRUCTIONS
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Ladies and Gentlemen:
In accordance with the terms and subject to the conditions set forth in the
Exchange Offer, the undersigned hereby tenders to the Company the
above-described Original Notes. Subject to, and effective upon, acceptance for
exchange of the Original Notes tendered herewith, the undersigned hereby
exchanges, assigns and transfers to, or upon the order of, the Company all
right, title and interest in and to all the Original Notes that are being
tendered hereby and that are being accepted for exchange pursuant to the
Exchange Offer, and hereby irrevocably constitutes and appoints the Exchange
Agent the true and lawful agent and attorney-in-fact of the undersigned with
respect to such Original Notes (with full knowledge that the Exchange Agent also
acts as agent for the Company) with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest), to
(a)(1) deliver such Original Notes to the Company or (2) present such Original
Notes for transfer to the Registrar on the Company's register, together, in each
case, with all accompanying evidences of transfer and authenticity to, or upon
order of, the Company, upon receipt by the Exchange Agent, as the undersigned's
agent, of the certificates representing Exchange Notes to which the undersigned
is entitled upon the acceptance by the Company of such Original
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Notes pursuant to the Exchange Offer, and (b) receive all benefits and otherwise
exercise all rights of beneficial ownership of such Original Notes, all in
accordance with the terms and subject to the conditions of the Exchange Offer.
The name and address of the registered holder(s) should be printed above in
Box One under "Description of Original Notes Tendered," exactly as they appear
on the certificates representing Original Notes tendered hereby. The certificate
number(s) and Original Notes to which this Letter of Transmittal relates should
be indicated in the appropriate boxes above under "Description of Original Notes
Tendered."
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the Original
Notes tendered hereby, and that when the same are accepted for exchange by the
Company, the Company will acquire good and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances, and such Original
Notes shall not be subject to any adverse claims. The undersigned will, upon
request, execute and deliver any additional documents deemed by the Exchange
Agent or the Company to be necessary or desirable to complete the exchange,
assignment and transfer of the Original Notes tendered hereby.
Further, the undersigned hereby represents and warrants that the
undersigned is acquiring the Exchange Notes in the ordinary course of its
business; the undersigned is not engaged in, and does not intend to engage in, a
distribution of the Exchange Notes; the undersigned has no arrangement or
understanding with any person to participate in the distribution of the Exchange
Notes; neither the undersigned nor any other such person is an affiliate of the
Company; and, if the undersigned is not a broker-dealer, the undersigned is not
engaged in, and does not intend to engage in, a distribution of the Exchange
Notes. If the undersigned is a broker-dealer, it acknowledges that it will
deliver a copy of the Prospectus in connection with any resale of the 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 also acknowledges that this Exchange Offer is being made in
reliance on interpretations by the staff of the Securities and Exchange
Commission (the "SEC"), as set forth in no-action letters issued to third
parties, that the Exchange Notes issued in exchange for the Original Notes
pursuant to the Exchange Offer may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such Exchange Notes are acquired
in the ordinary course of such holders' business and such holders have no
arrangement with any person to participate in the distribution of such Exchange
Notes. However, the SEC has not considered the Exchange Offer in the context of
a no-action letter and there can be no assurance that the staff of the SEC would
make a similar determination with respect to the Exchange Offer as in other
circumstances. If any holder is an affiliate of the Company, or is engaged in or
intends to engage in or has any arrangement or understanding with respect to the
distribution of the Exchange Notes to be acquired pursuant to the Exchange
Offer, such holder (i) could not rely on the applicable interpretations of the
staff of the SEC and (ii) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale
transaction.
All authority 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, legal representatives, successors and assigns of the
undersigned. This tender of Original Notes may be withdrawn at any time prior to
the Expiration Date. See "The Exchange Offer -- Withdrawal Rights" in the
Prospectus.
The undersigned understands that tenders of Original Notes pursuant to any
of the procedures described in the Prospectus and in this Letter of Transmittal
will constitute a binding agreement between the undersigned and the Company upon
the terms and subject to the conditions of the Exchange Offer.
Original Notes properly tendered and not withdrawn will be accepted as soon
as practicable after the satisfaction or waiver of all conditions to the
Exchange Offer. The undersigned understands that the Exchange Notes will be
delivered as promptly as practicable following acceptance of the tendered
Original Notes by the
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Company. The Exchange Offer is subject to a number of conditions, as more
particularly set forth in the Prospectus. See "The Exchange Offer -- Certain
Conditions to the Exchange Offer" in the Prospectus. The undersigned recognizes
that as a result of such conditions the Company may not be required to accept
any of the Original Notes tendered hereby. In such event, the Original Notes not
accepted for exchange will be returned to the undersigned at the address shown
below the undersigned's signature(s), unless otherwise indicated under "Special
Delivery Instructions."
Unless otherwise indicated herein under "Special Issuance Instructions,"
please issue the certificates for the Exchange Notes with respect to the
Original Notes accepted for exchange, or return the Original Notes not accepted
for exchange, in the name(s) of the undersigned at the address set forth above
under "Description of Original Notes Tendered" or in the case of a book-entry
delivery of Original Notes, please credit the account indicated above maintained
at the Book-Entry Transfer Facility. Similarly, unless otherwise indicated under
"Special Delivery Instructions," please deliver the certificates for the
Exchange Notes with respect to the Original Notes accepted for exchange, or the
Original Notes if not accepted for exchange (and accompanying documents, as
appropriate), to the undersigned at the address set forth above under
"Description of Original Notes Tendered." In the event that both the "Special
Issuance Instructions" and the "Special Delivery Instructions" are completed,
please issue the certificates for Exchange Notes accepted for exchange or in the
case of a book-entry delivery of Original Notes, please credit the account
indicated above maintained at the Book-Entry Transfer Facility, and/or return or
issue any certificates for Original Notes not tendered or not accepted for
exchange, in the name(s) of, and deliver such certificates for Exchange Notes
and/or such certificates for Original Notes not tendered or accepted for
exchange to the person or persons so indicated. The undersigned recognizes that
the Company has no obligation pursuant to the "Special Issuance Instructions" to
make arrangements for the transfer of any Original Notes from the name of the
registered holder(s) thereof if the Company does not accept for exchange the
Original Notes so tendered. Further, the undersigned recognizes that the
undersigned must comply with all terms and conditions of the Indenture, by and
between the Company and the Guarantors and the Trustee dated as of October 15,
1997, as amended or supplemented from time to time in accordance therewith (the
"Indenture"), to transfer Original Notes either not tendered for exchange or not
accepted for exchange from the name of the registered holder(s).
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NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
BOX 4
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
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Account Number
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Transaction Code Number
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[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT PRIOR
TO THE DATE HEREOF AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s):
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Date of Execution of Notice of Guaranteed Delivery:
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Name of Eligible Institution which Guaranteed Delivery:
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IF DELIVERED BY BOOK-ENTRY TRANSFER, COMPLETE THE FOLLOWING:
Account Number
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Transaction Code Number
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NOTE: Signature(s) must be guaranteed by an institution which is a participant
in the Securities Transfer Agent Medallion Program ("STAMP") or similar program.
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BOX 5
PLEASE SIGN HERE
TO BE COMPLETED BY ALL HOLDERS TENDERING ORIGINAL NOTES (WHETHER OR NOT
CERTIFICATES ARE BEING PHYSICALLY TENDERED HEREBY)
Must be signed by the registered holder(s) exactly as name(s) appear(s) on
the certificate(s) for Original Notes or by person(s) authorized to become
registered holder(s) as evidenced by endorsements and documents transmitted
herewith. See Instructions 4 and 5. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation, agent, or
other person acting in a fiduciary or representative capacity, please provide
the following information. See Instruction 4.
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(SIGNATURE(S) OF REGISTERED HOLDER(S) OR AUTHORIZED SIGNATORY)
Dated:
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Name(s):
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(PLEASE TYPE OR PRINT)
Capacity (Full Title):
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Address(es) (including zip code):
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Area Code(s) and Telephone Number(s):
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Tax Identification or Social Security Number(s):
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GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTION 4)
Name of Firm:
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Authorized Signature:
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Name:
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(PLEASE PRINT OR TYPE)
Title:
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Address:
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(INCLUDE ZIP CODE)
Area Code and Telephone Number:
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Dated:
- --------------------------- , 1998
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PAYER'S NAME: [DEPOSITARY]
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SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX Social Security number
FORM W-9 AT RIGHT AND CERTIFY BY SIGNING AND DATING OR
DEPARTMENT OF THE TREASURY BELOW ------------------------------
INTERNAL REVENUE SERVICE Employer Identification Number
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PAYER'S REQUEST FOR Part 2 -- CERTIFICATION -- Under penalties of perjury, I certify that:
TAXPAYER IDENTIFICATION (1) the number shown on this form is my correct Taxpayer Identification
NUMBER (TIN) 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.
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you
have been notified by the IRS that you are currently subject to backup
withholding because of underreporting interest or dividends on your tax
return. However, if after being notified by the IRS that you are subject
to backup withholding, you received another notification from the IRS
that you are no longer subject to backup withholding, do not cross out
such item (2).
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SIGNATURE DATE Part 3 -- Awaiting TIN [ ]
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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 PURSUANT TO THE EXCHANGE OFFER. 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 CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
SUBSTITUTE FORM W-9
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 within sixty (60) days, 31%
of all reportable payments made to me thereafter will be withheld until I
provide a number.
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Signature Date
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Certificates; Guaranteed
Delivery Procedures. This Letter of Transmittal is to be used if (a)
certificates for Original Notes are to be physically delivered to the Exchange
Agent herewith or tenders are to be made according to the guaranteed delivery
procedures or (b) tenders are to be made pursuant to the procedures for delivery
by book-entry transfer, all as set forth in the Prospectus.
To validly tender Original Notes pursuant to the Exchange Offer, either (a)
a properly completed and duly executed copy of this Letter of Transmittal (or
facsimile thereof) with any required signature guarantees, together with either
a properly completed and duly executed Notice of Guaranteed Delivery or
certificates for the Original Notes, or Book-Entry Confirmation, as the case may
be, and any other documents required by this Letter of Transmittal, must be
received by the Exchange Agent at its address or number set forth on the first
page of this Letter of Transmittal, or (b) a holder of Original Notes must
comply with the guaranteed delivery procedures described in the next succeeding
paragraph. Original Notes tendered must be in denominations of principal amount
of $1,000 and any integral multiple thereof.
Holders of Original Notes who desire to tender such Original Notes pursuant
to the Exchange Offer and whose certificates representing such Original Notes
are not lost but are not immediately available, or time will not permit all
required documents to reach the Exchange Agent prior to 5:00 p.m., New York City
time, on the Expiration Date, or who cannot complete the procedure for
book-entry transfer on a timely basis, may tender their Original Notes pursuant
to the guaranteed delivery procedures set forth in the Prospectus under "The
Exchange Offer -- Guaranteed Delivery Procedures." Pursuant to such procedures,
(a) tender must be made by a firm which is a member of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.
or by a commercial bank or trust company having an office or correspondent in
the United States and, in each instance, which is a participant in the
Securities Transfer Agent Medallion Program ("STAMP") or similar program (an
"Eligible Institution"), (b) the Exchange Agent must have received from such
Eligible Institution, prior to 5:00 p.m., New York City time, on the Expiration
Date, a properly completed and duly executed Notice of Guaranteed Delivery (by
mail, hand delivery, telegram or facsimile transmission), and (c) the
certificates for all physically tendered Original Notes in proper form for
transfer or Book-Entry Confirmation as the case may be, together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) and all
other documents required by this Letter of Transmittal, must be received by the
Exchange Agent within five New York Stock Exchange trading days after the
Expiration Date, all as provided in the Prospectus under the caption "The
Exchange Offer -- Guaranteed Delivery Procedures."
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE CERTIFICATES FOR
ORIGINAL NOTES AND OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE
TENDERING HOLDER. EXCEPT AS OTHERWISE PROVIDED HEREIN AND IN THE PROSPECTUS,
SUCH DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE
AGENT. IF DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT THE HOLDER USE PROPERLY
INSURED, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, AND THAT THE MAILING BE
MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE TO PERMIT DELIVERY TO THE
EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance, withdrawal and revocation of Original Notes tendered for
exchange will be determined by the Company in its sole discretion, whose
determination will be final and binding. The Company reserves the absolute right
to waive any defects or irregularities in the tender or conditions of the
Exchange Offer as to particular Original Notes. The interpretation of the
Company of the terms and conditions of the Exchange Offer (including the
Instructions herein) will be final and binding. Unless waived, any defects or
irregularities in connection with tenders must be cured within such time as the
Company shall determine. No alternative, conditional or contingent tenders will
be accepted. Neither the Company, the Exchange Agent nor any other person will
be under any duty to give notification of any defects or irregularities in any
tender or will incur any liability for failure to give any
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such notification. Tenders of Original Notes will not be deemed to have been
made until irregularities have been cured or waived. Any certificates of
Original Notes received by the Exchange Agent that are not properly tendered and
as to which irregularities have not been cured or waived will be returned by the
Exchange Agent to the tendering holders of such Original Notes, unless otherwise
provided in this Letter of Transmittal, as soon as practicable following the
Expiration Date.
Any tendered Original Notes which are not accepted for exchange because of
an invalid tender, the occurrence or nonoccurrence of certain other events set
forth in the Prospectus or otherwise will be returned without expense to the
appropriate tendering holder thereof as promptly as practicable following the
expiration, withdrawal or termination of the Exchange Offer.
2. Withdrawal Rights. Original Notes tendered pursuant to the Exchange
Offer may be withdrawn, as hereinafter provided, at any time prior to 5:00 p.m.,
New York City time, on the Expiration Date.
For the withdrawal of a tender to be effective, a written, telegraphic or
facsimile transmitted notice of withdrawal must be received by the Exchange
Agent at the address or number set forth on the front page of this Letter of
Transmittal prior to the Expiration Date. Any such notice of withdrawal must (i)
specify the name of the person who tendered the Original Notes, (ii) identify
the Original Notes to be withdrawn (including the certificate number or numbers
of any physically delivered Original Notes and the principal amount of the
Original Notes), and (iii) be signed in the same manner required by the Letter
of Transmittal by which such Original Notes were tendered (including any
required signature guarantees, endorsements and/or powers). All questions as to
the validity, form and eligibility (including time of receipt) of notices of
withdrawal will be determined by the Company, whose determination will be final
and binding on all parties. The Original Notes so withdrawn, if any, will be
deemed not to have been validly tendered for exchange for purposes of the
Exchange Offer. Any Original Notes which have been tendered for exchange but
which are withdrawn will be returned to the holder without cost to such holder
as soon as practicable after withdrawal. Properly withdrawn Original Notes may
be retendered on or prior to 5:00 p.m., New York City time, on the Expiration
Date by following any of the procedures described above under Instruction 1.
Neither the Company, the Exchange Agent nor any other person will be under
any duty to give notification of any defects or irregularities in any notice of
withdrawal or will incur any liability for failure to give such notification.
3. Acceptance of Original Notes for Exchange; No Partial Tenders. Tenders
will be accepted in denominations of $1,000 and any integral multiples thereof.
The entire aggregate principal amount of Original Notes will be deemed to have
been tendered unless otherwise indicated. If less than the entire aggregate
principal amount of any Original Notes evidenced by a submitted certificate is
to be tendered, the tendering holder should fill in the aggregate principal
amount of the Original Notes which is to be tendered in column (4) of the table
in Box One above.
Upon the terms and subject to the conditions of the Exchange Offer, the
acceptance for exchange of Original Notes validly tendered pursuant to the
Exchange Offer and not withdrawn, and delivery of the Exchange Notes, will be
made promptly after the Expiration Date.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted for exchange validly tendered Original Notes when, as and if the
Company has given oral or written notice thereof to the Exchange Agent. The
Exchange Agent will act as agent for the tendering holders of Original Notes for
the purpose of receiving the Exchange Notes and transmitting the Exchange Notes
to such holders. Tendered Original Notes not accepted for exchange by the
Company will be returned without expense to tendering holders as soon as
practicable following the Expiration Date.
4. Signatures on this Letter of Transmittal; Stock Powers and Endorsements;
Guarantee of Signatures. With respect to a tender of Original Notes, this Letter
of Transmittal must be signed by the registered holder(s) of the Original Notes
tendered, and such signatures must correspond with the name(s) of such holder(s)
as written on the face of the certificate without alteration, enlargement, or
any change whatsoever. If this Letter of Transmittal is signed by a person other
than the registered holder(s) of the Original Notes tendered hereby, such
Original Notes must be endorsed or accompanied by appropriate stock powers
signed
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exactly as the name(s) of the registered holder(s) appear(s) on such
certificates. Signatures of endorsement on any such certificate or stock powers
must be guaranteed by an Eligible Institution.
(a) If any of the Original Notes tendered hereby are held of record by two
or more persons, all such persons must sign this Letter of Transmittal.
(b) If any of the Original Notes tendered hereby are registered in
different names, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal and any necessary accompanying documents as
there are different registrations.
(c) If this Letter of Transmittal is signed by the registered holder(s) of
the Original Notes tendered hereby, no endorsements of certificates or separate
stock powers are required, unless the Original Notes are not accepted for
exchange, or the certificates for Exchange Notes are to be issued in the name
of, or delivered to, any person other than the registered holder(s). Signatures
on any such certificate or stock powers must be guaranteed by an Eligible
Institution (unless signed by an Eligible Institution).
(d) If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Original Notes tendered hereby, certificates
representing such Original Notes tendered hereby, certificates representing such
Original Notes must be endorsed or accompanied by appropriate bond powers and
signed exactly as the name(s) of the registered holder(s) appear(s) on such
certificates. Signatures on any such certificate or bond powers must be
guaranteed by an Eligible Institution (unless signed by an Eligible
Institution).
(e) If this Letter of Transmittal or any certificates or bond powers are
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation, or other person acting in a fiduciary or
representative capacity, such person should so indicate when signing, and,
unless waived by the Company, proper evidence satisfactory to the Company of the
authority of such person to so act must be submitted with this Letter of
Transmittal.
5. Brokerage Fees and Transfer Taxes. Holders of Original Notes who tender
Original Notes will not be required to pay transfer taxes with respect to the
exchange of Original Notes pursuant to the Exchange Offer unless the box
entitled "Special Issuance Instructions" herein is marked as described in
Instruction 6. If, however, the box entitled "Special Issuance Instructions" is
marked and Exchange Notes are to be issued in the name of, or delivered to, any
person other than the registered holder(s), or if a transfer tax is imposed for
any reason other than the exchange of Original Notes for Exchange Notes pursuant
to the Exchange Offer, the amount of any transfer taxes (whether imposed on the
registered holder(s), such other person or otherwise) payable on account of the
transfer to such person will be the responsibility of the tendering holder(s).
Unless satisfactory evidence of the payment of such taxes, or exemption
therefrom, is submitted herewith, the amount of such transfer taxes will be
billed directly to the tendering holder(s). EXCEPT AS PROVIDED IN THIS
INSTRUCTION 5, IT WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO
THE CERTIFICATES LISTED IN THIS LETTER OF TRANSMITTAL.
6. Special Issuance and Delivery Instructions. If (a) certificates for
Exchange Notes are to be issued in the name of a person other than the person(s)
signing this Letter of Transmittal or (b) Original Notes not accepted for
exchange are to be delivered to a person other than the person(s) signing this
Letter of Transmittal, the appropriate boxes on this Letter of Transmittal
should be completed. Further, if Original Notes not accepted for exchange are to
be delivered to a person other than the person(s) signing this Letter of
Transmittal, such Original Notes must be accompanied by such documents as are
required under the terms and conditions of the Indenture.
7. Substitute Form W-9. Federal income tax law requires each holder who
tenders Original Notes to provide the Exchange Agent with such holder's Taxpayer
Identification Number ("TIN") and to certify that such holder is not subject to
backup withholding for underreporting interest or dividend income. These
certifications must be made by entering the TIN in the space provided on the
Substitute Form W-9 herein and signing and dating the form in the appropriate
places.
13
14
FAILURE TO PROVIDE THE INFORMATION REQUESTED ON THE SUBSTITUTE FORM W-9 MAY
SUBJECT A HOLDER TO A $50 PENALTY IMPOSED BY THE INTERNAL REVENUE SERVICE AND TO
BACKUP WITHHOLDING OF 31% OF ANY REPORTABLE PAYMENT TO BE MADE TO SUCH HOLDER.
If backup withholding applies to a holder, the Exchange Agent is required
to withhold 31% of any reportable payments made to such holder. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained.
Certain holders (including, among others, all corporations and certain
foreign individuals that establish their entitlement to an exemption) are not
subject to these backup withholding and reporting requirements. In order for a
foreign individual to qualify as an exempt recipient, that holder must submit a
statement, signed under penalties of perjury, attesting to that individual's
exempt status. Such statements can be obtained from the Exchange Agent.
For additional information in this regard, please refer to the enclosed
Guidelines for Certification of TIN on Substitute Form W-9.
8. Waiver of Conditions. The Company reserves the absolute right to waive
the specified conditions to the Exchange Offer, as described in, and to the
extent provided in, the Prospectus under "The Exchange Offer -- Certain
Conditions to the Exchange Offer."
9. Mutilated, Lost, Stolen or Destroyed Certificates. Any holder whose
certificates for Original Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address indicated above for further
instructions.
10. Expiration Date. The Exchange Offer will expire at 5:00 p.m., New York
City time, on May 11, 1998, unless extended by the Company. The Company
expressly reserves the right, at any time and from time to time, to extend the
Exchange Offer for such period or periods as it may determine in its sole
discretion, in which event the Expiration Date shall be the time and dated on
which such Exchange Offer, as so extended, shall expire. The Company will notify
all holders of any extension by issuing a press release prior to 9:00 a.m., New
York City time, on the next business day following the previously scheduled
Expiration Date. During any such extension, all Original Notes previously
tendered and not accepted for exchange will remain subject to the Exchange Offer
and may, subject to the terms and conditions hereof, be accepted for exchange by
the Company, subject to the withdrawal rights of tendering holders.
11. Requests for Assistance or Additional Copies. Questions and requests
for assistance may be directed to the Exchange Agent at its address and
telephone number set forth above. Additional copies of the Prospectus and this
Letter of Transmittal may be obtained from the Exchange Agent at its address and
telephone number set forth above.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE COPY
HEREOF (TOGETHER WITH CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS) OR THE
NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
14
15
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
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF--
===========================================================
1. An individual's account The individual
2. Two or more individuals (joint The actual owner of
account) the account or, if
combined funds, any
one of the
individuals(1)
3. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
4. (a) The usual revocable savings The grantor-
trust (grantor is also trustee(1)
trustee)
(b) So-called trust account The actual owner(1)
that is not a legal or valid
trust under state law
5. Sole proprietorship The owner(3)
6. Sole proprietorship The owner(3)
- -----------------------------------------------------------
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF--
- -----------------------------------------------------------
7. A valid trust, estate or Legal entity(4)
pension trust
8. Corporate The corporation
9. Association, club, religious, The organization
charitable, educational or
other tax-exempt organization
10. Partnership The partnership
11. A broker or registered nominee The broker or
nominee
12. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a state
or local government, school
district, or prison) that
receives agriculture 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) You must show your individual name, but you may also enter your business or
"doing business as" name. You may use either your Social Security number or
Employer Identification number.
(4) List first and circle the name of the legal trust, estate, 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.)
NOTE: If no name is circled when more than one name is listed, the number will
be considered to be that of the first name listed.
16
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
Section references are to the Internal Revenue Code.
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service (the "IRS") and
apply for a number.
PAYEES 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 exempted except item (9). For broker transactions, payees listed in
items (1) through (13) and a person registered under the Investment Advisers 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 that a corporation
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 (2) through (6) are exempt from backup
withholding for barter exchange transactions, patronage dividends, and payments
by certain fishing boat operators.
(1) A corporation.
(2) An organization exempt from tax under Section 501(a), or an individual
retirement plan ("IRA"), or a custodial account under Section 403(b)(7).
(3) The United States or any of its agencies or instrumentalities.
(4) A state, the District of Columbia, a possession of the United States, or
any of their political subdivisions or instrumentalities.
(5) A foreign government or any of its political subdivisions, agencies or
instrumentalities.
(6) An international organization or any of its agencies or
instrumentalities.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the United
States 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 generally not subject to backup
withholding also 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 United
States and that have at least one nonresident partner.
- Payments of patronage dividends not paid in money.
- Payments made by certain foreign organizations.
Payments of interest generally not 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 nonresident aliens.
- Payments on tax-free covenant bonds under Section 1451.
- Payments made by certain foreign organizations.
- Mortgage interest paid by you.
Payments that are not subject to information reporting are also not subject to
backup withholding. For details see Sections 6041, 6041(a), 6042, 6044, 6045,
6049, 6050A and 6050N, and the regulations under such sections.
PRIVACY ACT NOTICE.--Section 6109 requires you to give your correct taxpayer
identification number to persons who must file information returns with the IRS
to report interest, dividends, and certain other income paid to you, mortgage
interest you paid, the acquisition or abandonment of secured property,
cancellation of debt, or contributions you made to an IRA. The IRS uses the
numbers for identification purposes and to help verify the accuracy of your tax
return. You must provide your taxpayer identification number whether or not you
are required to file a tax return. 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 that results in no backup
withholding, you are subject to a $500 penalty.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
(4) MISUSE OF TAXPAYER IDENTIFICATION NUMBERS.--If the requester discloses or
uses your taxpayer identification numbers in violation of federal law, the
requester may be subject to civil and criminal penalties.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.