LETTER OF TRANSMITTAL
WITH RESPECT TO TENDER OF
Any Outstanding 11% Senior Notes Due 2008
(CUSIP No. 37957FAE1 and No. 37957FAD3)
Pursuant to the Offer to Purchase Dated January 26, 2004
of
GLOBIX CORPORATION
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THE OFFER WILL EXPIRE AT 10:00 A.M., NEW YORK CITY TIME, ON FEBRUARY 25, 2004,
UNLESS EXTENDED OR EARLIER TERMINATED IN ACCORDANCE WITH THE TERMS OF THE OFFER
(SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME TO TIME, THE
"EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION
DATE.
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The Depositary is:
HSBC BANK USA
By Registered or For Information or to Confirm by Facsimile Transactions:
Certified Mail; Hand or Overnight Telephone Call: (Eligible Institutions Only)
Delivery: (718) 488-4475 (718) 488-4488
HSBC BANK USA Attn: Pauline Shaw
Lower Level
One Hanson Place
Brooklyn, New York 11243
Attn: Issuer Services
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN THE ONE LISTED ABOVE WILL
NOT CONSTITUTE VALID DELIVERY TO THE DEPOSITARY.
Capitalized terms used herein and not otherwise defined herein shall
have the meaning ascribed to them in the Offer to Purchase.
The instructions set forth in this letter of transmittal ("Letter of
Transmittal") should be read carefully before this Letter of Transmittal is
completed. The undersigned acknowledges that he or she has received and reviewed
the Offer to Purchase dated January 26, 2004, of Globix Corporation, a Delaware
corporation (the "Company"), and this Letter of Transmittal, which together
constitute the Company's offer (the "Offer") to purchase for cash up to
$40,274,000 in principal amount (the "Purchase Amount"), plus accrued and unpaid
interest, of the outstanding $105,320,999 11% Senior Notes Due 2008, issued by
the Company (the "Securities"). Recipients of the Offer to Purchase should read
the requirements described in the Offer to Purchase with respect to eligibility
to participate in the Offer to Purchase.
This Letter of Transmittal is to be completed by a holder of Securities
desiring to tender Securities in accordance with the Offer, unless such holder
is executing the tender through DTC's Automated Tender Offer Program ("ATOP").
This Letter of Transmittal need not be completed by a holder tendering through
ATOP.
For a description of certain procedures to be followed in order to
tender Securities (through ATOP or otherwise), see "Procedure for Tendering
Securities" in the Offer to Purchase and the instructions to this Letter of
Transmittal.
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PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE CHECKING
ANY BOX BELOW.
This Letter of Transmittal is to be used by a holder of Securities if
certificates representing tendered Securities are to be forwarded herewith
Holders that are tendering by book-entry transfer to the Depositary's
account at The Depository Trust Corporation ("DTC") can execute the tender
through DTC's Automated Tender Order Process ("ATOP") for which the Offer will
be eligible. DTC participants that are accepting the Offer must transmit their
acceptance to DTC which will verify the acceptance and execute a book-entry
delivery to the Depositary's account at DTC. DTC will then send an agent's
message forming part of a book-entry transfer in which the participant agrees to
be bound by the terms of the Letter of Transmittal (an "Agent's Message") to the
Depositary for its acceptance. Transmission of the Agent's Message by DTC will
satisfy the terms of the Offer as to execution and delivery of a Letter of
Transmittal by the participant identified in the Agent's Message.
In order to properly complete this Letter of Transmittal, a holder of Securities
must:
o complete the box entitled "Description of Securities Tendered";
o sign the Letter of Transmittal by completing the box entitled "Sign
Here"; and
o complete the Substitute Form W-9.
Each holder of Securities should carefully read the detailed
instructions below prior to completing the Letter of Transmittal.
Holders of Securities who wish to tender their Securities for purchase
must complete columns (1) through (3) in the box below entitled "Description of
Securities Tendered" and sign the box below entitled "Sign Here." If only those
columns are completed, such holder of Securities will have tendered for purchase
all Securities listed in column (3) below. If the holder of Securities wishes to
tender for purchase less than all of such Securities, column (4) must be
completed in full. In such case, such holder of Securities should refer to
Instruction 5.
The Offer may be extended, terminated or amended, as provided in the
Offer to Purchase. During any such extension of the Offer, all Securities
previously tendered and not withdrawn pursuant to the Offer will remain subject
to such Offer. The Offer is scheduled to expire at 10:00 a.m., New York City
time, on February 25, 2004, unless extended or terminated by the Company.
The undersigned hereby tenders for purchase the Securities described in
the box entitled "Description of Securities Tendered" below pursuant to the
terms and conditions described in the Offer to Purchase and this Letter of
Transmittal.
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DESCRIPTION OF SECURITIES TENDERED
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(1) (2) (3) (4)
Aggregate
Name(s) and Address(es) Principal Amount Principal Amount
of Registered Holder(s) Certificate Represented by Tendered for Purchase (C)
or Name(s) of DTC participant(s) Number(s) (A) Certificate(s) (B)
and Participant's DTC
account Number in which
Securities are Held
(Please fill in, if blank)
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---------------------- ------------------------ ------------------------
---------------------- ------------------------ ------------------------
---------------------- ------------------------ ------------------------
---------------------- ------------------------ ------------------------
---------------------- ------------------------ ------------------------
---------------------- ------------------------ ------------------------
---------------------- ------------------------ ------------------------
---------------------- ------------------------ ------------------------
Total Principal
Amount Tendered
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(A) Need not be completed by holders tendering by book-entry transfer.
(B) Unless otherwise indicated in this column, any tendering holder will be
deemed to have tendered the entire principal amount represented by the
Securities indicated in the column labeled "Aggregate Principal Amount
Represented by Certificate(s)." See Instruction 5.
(C) The minimum permitted tender is $1,000 in principal amount of
Securities. All other tenders must be integral multiples of $1,000.
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[ ] CHECK HERE IF TENDERED SECURITIES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE IF TENDERED SECURITIES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY WITH DTC AND
COMPLETE THE FOLLOWING:
Name(s) of Tendering Institution(s): ___________________________________________________
Account Number: __________________________________________________________________
Transaction Code Number: __________________________________________________________
Only registered holders are entitled to tender their Securities for
purchase in the Offer. Any financial institution that is a participant in DTC's
system and whose name appears on a security position listing as the record owner
of the Securities and who wishes to make book-entry delivery of Securities as
described above must complete and execute a participant's letter (which will be
distributed to participants by DTC) instructing DTC's nominee to tender such
Securities for purchase. Persons who are beneficial owners of Securities but are
not registered holders and who seek to tender Securities should:
o contact the registered holder of such Securities and instruct such
registered holder to tender on his or her behalf;
o obtain and include with this Letter of Transmittal, Securities
properly endorsed for transfer by the registered holder or accompanied
by a properly completed bond power from the registered holder, with
signatures on the endorsement or bond power guaranteed by a firm that
is a member of a registered national securities exchange, a member of
the National Association of Securities Dealers, Inc., a commercial
bank or trading company having an office in the United States or
certain other eligible guarantors (each, an "Eligible Institution");
or
o effect a record transfer of such Securities from the registered holder
to such beneficial owner and comply with the requirements applicable
to registered holders for tendering Securities prior to the Expiration
Date. See the section entitled "Procedure for Tendering Securities" in
the Offer to Purchase.
SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
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Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Offer to Purchase
(the "Offer"), the undersigned hereby tenders to Globix Corporation (the
"Company") for purchase the Securities indicated above. Subject to, and
effective upon, acceptance for purchase of the Securities tendered herewith, the
undersigned hereby sells, assigns, and transfers to the Company all right, title
and interest in and to all such Securities tendered for purchase hereby. The
undersigned hereby irrevocably constitutes and appoints HSBC Bank USA (the
"Depositary") as the true and lawful agent and attorney-in-fact of the
undersigned (with full knowledge that the Depositary also acts as agent of the
Company) with respect to such Securities, with full power of substitution and
resubstitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest) to:
o deliver certificates representing such Securities, or
transfer ownership of such Securities on the account books
maintained by DTC, together, in each such case, with all
accompanying evidences of transfer and authenticity to the
Company;
o present and deliver such Securities for transfer on the
books of the Company; and
o receive all benefits or otherwise exercise all rights and
incidents of beneficial ownership of such Securities, all in
accordance with the terms of the Offer.
The undersigned represents and warrants that it has full power and
authority to tender, exchange, assign and transfer the Securities for cash upon
the purchase of such tendered Securities, and that, when the same are accepted
for purchase, the Company will acquire good and unencumbered title to the
tendered Securities, free and clear of all liens, restrictions, charges and
encumbrances and not subject to any adverse claim. The undersigned also warrants
that it will, upon request, execute and deliver any additional documents deemed
by the Depositary or the Company to be necessary or desirable to complete the
purchase, assignment and transfer of tendered Securities or transfer ownership
of such Securities on the account books maintained by the book-entry transfer
facility.
By tendering, each holder of Securities represents that:
o the holder is selling his or her Securities for cash
pursuant to the Offer in the ordinary course of such
holder's business;
o the holder is not an "affiliate," as defined in Rule 405 of
the Securities Act, of the Company.
All authority conferred or agreed to be conferred pursuant to this
Letter of Transmittal and every obligation of the undersigned hereunder shall be
binding upon the successors, assigns, heirs, executors, administrators, trustees
in bankruptcy, and personal and legal representatives of the undersigned and
shall not be affected by, and shall survive, the death or incapacity of the
undersigned. Securities properly tendered may be withdrawn at any time prior to
the Expiration Date in accordance with the terms of this Letter of Transmittal.
The Offer is subject to certain conditions, each of which may be waived
or modified by the Company, in whole or in part, at any time and from time to
time, as described in the Offer under the caption "Conditions to the Offer." The
undersigned recognizes that as a result of such conditions the Company may not
be required to accept for purchase any of the Securities properly tendered
hereby. In such event, the tendered Securities not accepted for purchase will be
returned to the undersigned without cost to the undersigned at the address shown
below the undersigned's signature(s) unless otherwise indicated under "Special
Issuance Instructions" below.
Unless otherwise indicated under "Special Issuance Instructions" below,
please return any certificates representing Securities not tendered or not
accepted for purchase in the name(s) of the holder(s) appearing under
"Description of Securities Tendered." Similarly, unless otherwise indicated
under "Special Delivery Instructions," please mail any certificates representing
Securities not tendered or not accepted for purchase (and accompanying document,
as appropriate) to the address(es) of the holder(s) appearing under "Description
of Securities Tendered." In the event that both the "Special Issuance
Instructions" and the "Special Delivery Instructions" are completed, please make
payment for tendered Securities accepted for purchase in the name(s) of, and
return any Securities not tendered or not accepted for purchase to, the person
or persons so indicated. Unless otherwise indicated under "Special Issuance
Instructions," in the case of a book-entry delivery of Securities, please credit
the account maintained at DTC with any Securities not
-6-
tendered or not accepted for purchase. The undersigned recognizes that the
Company does not have any obligation pursuant to the Special Issuance
Instructions, to transfer any Securities from the name of the holder thereof if
the Company does not accept for purchase any of the Securities so tendered or if
such transfer would not be in compliance with any transfer restrictions
applicable to such Securities.
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SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 6, 7 AND 8) (SEE INSTRUCTIONS 1, 6, 7 AND 8)
To be completed ONLY if (i) payment for _________To be completed ONLY if the payment for
tendered Securities, certificates for Securities in a tendered Securities, certificates for Securities in a
principal amount not purchased, or Securities (if any) principal amount not purchased, or Securities (if any)
not tendered for purchase are to be issued in the name not tendered for purchase are to be sent to someone
of someone other than the undersigned, or (ii) other than the undersigned or to the undersigned at an
Securities tendered by book-entry transfer which are not address other than that shown above.
purchased are to be returned by credit to an account
maintained at DTC other than the account indicated above. Mail to:
Issue to: Name:__________________________________________________
(Please Print)
Name:____________________________________________________
(Please Print) Address:_______________________________________________
Address:_________________________________________________ _______________________________________________________
(Include Zip Code)
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(Include Zip Code) _______________________________________________________
(Taxpayer Identification or Social Security Number)
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(Taxpayer Identification or Social Security Number)
Credit Securities not purchased and delivered by
book-entry transfer to the DTC account set forth below:
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(Account Number)
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SIGN HERE TO TENDER YOUR SECURITIES IN THE OFFER
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Signature(s) of holders of Securities
Dated:__________________________________________________________________________
(Must be signed by the registered holder(s) of Securities exactly as
name(s) appear(s) on certificate(s) representing the Securities 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
attorney-in-fact, executor, administrator, trustee, guardian, officer of a
corporation or other person acting in a fiduciary or representative capacity,
please provide the following information and see Instruction 6.)
Capacity (Full Title)___________________________________________________________
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Name(s)_________________________________________________________________________
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(Please Type or Print)
Address_________________________________________________________________________
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(Include Zip Code)
Area Code and Telephone Number ( )__________________________________________
Tax Identification or Social Security No. ______________________________________
GUARANTEE OF SIGNATURE(S)
(If required - see Instructions 1 and 6)
Authorized Signature ___________________________________________________________
Name ___________________________________________________________________________
(Please Type or Print)
Title __________________________________________________________________________
Name of Firm ___________________________________________________________________
Address ________________________________________________________________________
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(Include Zip Code)
Area Code and Telephone Number ( )__________________________________________
Tax Identification or Social Security No. ______________________________________
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IMPORTANT: COMPLETE AND SIGN THE SUBSTITUTE FORM W-9
IN THIS LETTER OF TRANSMITTAL
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INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Guarantee of Signatures. Signatures on this Letter of Transmittal need not
be guaranteed if the Securities tendered hereby are tendered:
o by the registered holder(s) of Securities thereof, unless such holder
has completed either the box entitled "Special Issuance Instructions"
or the box entitled "Special Delivery Instructions" above; or
o to the account of a firm that is an Eligible Institution.
In all other cases, all signatures on this Letter of Transmittal must
be guaranteed by an Eligible Institution. Persons who are beneficial owners of
Securities but are not the registered holder(s) and who seek to tender
Securities for purchase should:
o contact the registered holder(s) of such Securities and instruct such
registered holder(s) to tender on such beneficial owner's behalf;
o obtain and include with this Letter of Transmittal, Securities
properly endorsed for transfer by the registered holder(s) or
accompanied by a properly completed bond power from the registered
holder(s) with signatures on the endorsement or bond power guaranteed
by an Eligible Institution; or
o effect a record transfer of such Securities from the registered
holder(s) to such beneficial owner and comply with the requirements
applicable to registered holder(s) for tendering Securities for
purchase prior to the Expiration Date. See Instruction 6.
2. Delivery of this Letter of Transmittal and Certificates for Securities or
Book-Entry Confirmations. This Letter of Transmittal is to be completed by
registered holder(s) if certificates representing Securities are to be
forwarded herewith. All physically delivered Securities, as well as a
properly completed and duly executed Letters of Transmittal (or manually
signed facsimiles thereof) and any other required documents, must be
received by the Depositary at its address set forth on the cover of this
Letter of Transmittal prior to the Offer Expiration Date. Delivery of the
documents to DTC does not constitute delivery to the Depositary.
The method of delivery of this Letter of Transmittal, Securities and
all other required documents to the Depositary is at the election and risk of
the holder thereof. If such delivery is by mail, it is suggested that holders
use properly insured registered mail, return receipt requested, and that the
mailing be sufficiently in advance of the Offer Expiration Date, to permit
delivery to the Depositary prior to such date. Except as otherwise provided
below, the delivery will be deemed made when actually received or confirmed by
the Depositary. This Letter of Transmittal and Securities tendered for purchase
should be sent only to the Depositary, not to the Company.
All tendering holders, by execution of this Letter of Transmittal,
waive any right to receive any notice of the acceptance of their Securities for
purchase.
3. Inadequate Space. If the space provided in the box entitled "Description of
Securities Tendered" above is inadequate, the certificate numbers and
principal amounts of Securities tendered should be listed on a separate
signed schedule affixed hereto.
4. Withdrawal of Tenders. A tender of Securities may be withdrawn at any time
prior to the Expiration Date by delivery of notice of withdrawal by
telegram, telex, facsimile transmission or letter of withdrawal to the
Depositary at the address set forth on the cover of this Letter of
Transmittal. To be effective, a notice of withdrawal must:
-10-
o specify the name of the holder who tendered the Securities to be
withdrawn and, if different, the name of the registered holder who
tendered the Securities to be withdrawn and, if different, the name of
the registered holder of such Securities (or, in the case of
Securities tendered by book-entry transfer, the name of the
participant for hose account such Securities were tendered and such
participant's account number at DTC to be credited with the withdrawn
Securities);
o contain a description of the Securities to be withdrawn, including the
principal amount to be withdrawn and, in the case of Securities
tendered by delivery of certificates rather than book-entry transfer,
the certificate numbers thereof;
o contain a statement that such holder of the Securities is withdrawing
all or a portion of such holder's tender; and
o be signed by the holder of such Securities in the same manner as the
original signature on the Letter of Transmittal, including any
required signature guarantees (or, in the case of Securities tendered
by a DTC participant through ATOP, be signed by such participant in
the same manner as the participant's name is listed on the applicable
Agent's Message), or be accompanied by evidence satisfactory to the
Depositary that the person withdrawing the tender has succeeded to the
beneficial ownership of such Securities.
The Depositary will return the properly withdrawn Securities promptly
following receipt of notice of withdrawal. If Securities have been tendered
pursuant to the procedure for book-entry transfer, any notice of withdrawal must
specify the name and number of the account at the book-entry transfer facility.
All questions as to the validity of notices of withdrawals, including, time of
receipt, will be determined by the Company and such determination will be final
and binding on all parties.
Any Securities so withdrawn will be deemed not to have been validly
tendered for purchase for purposes of the Offer. Any Securities which have been
tendered for purchase but which are not purchased for any reason will be
returned to the holder thereof without cost to such holder (or, in the case of
Securities tendered by book-entry transfer into the Depositary's account at the
book-entry transfer facility pursuant to the book-entry transfer procedures
described above, such Securities will be credited to an account with such
book-entry transfer facility specified by the holder) as soon as practicable
after withdrawal, rejection of tender or termination of the Offer. Properly
withdrawn Securities may be retendered by following one of the procedures
described under the caption "Procedure for Tendering Securities" in the Offer to
Purchase at any time prior to the Expiration Date.
5. Partial Tender (Not Applicable to Holders of Securities Who Tender by
Book-Entry Transfer). Tenders of Securities will be accepted only in
integral multiples of $1,000 principal amount. If a tender for purchase is
to be made with respect to less than the entire principal amount of any
Securities, fill in the principal amount of Securities which are tendered
for purchase in column (4) of the box entitled "Description of Securities
Tendered," as more fully described in the footnotes thereto. In the case of
a partial tender for purchase, a new certificate, in fully registered form,
for the remainder of the principal amount of the Securities, will be sent
to the holders of Securities unless otherwise indicated in the boxes
entitled "Special Issuance Instructions" or "Special Delivery Instructions"
above, as soon as practicable after the expiration or termination of the
Offer.
6. Signatures on this Letter of Transmittal; Bond Powers and Endorsements. If
this Letter of Transmittal is signed by the holder(s) of the Securities
tendered for purchase 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 of the Securities tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal. If any
tendered Securities are registered in different names on several certificates,
it will be necessary to complete, sign and submit as many separate copies of
this Letter of Transmittal and any necessary or required documents as there are
names in which certificates are held.
-11-
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 proper evidence
satisfactory to the Company of its authority so to act must be submitted, unless
waived by the Company.
If this Letter of Transmittal is signed by the holder(s) of the
Securities listed and transmitted hereby, no endorsements of certificates or
separate bond powers are required unless certificates for Securities not
tendered or not accepted for purchase are to be issued or returned in the name
of a person other than for the holder(s) thereof. Signatures on such
certificates must be guaranteed by an Eligible Institution (unless signed by an
Eligible Institution).
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Securities, the certificates representing such
Securities must be properly endorsed for transfer by the registered holder or be
accompanied by a properly completed bond power from the registered holder, in
either case signed by such registered holder(s) exactly as the name(s) of the
registered holder(s) the Securities appear(s) on the certificates. Signatures on
the endorsement or bond power must be guaranteed by an Eligible Institution
(unless signed by an Eligible Institution).
7. Transfer Taxes. Except as set forth in this Instruction 7, the Company will
pay or cause to be paid any transfer taxes with respect to the transfer and
sale of Securities to it, or to its order, pursuant to the Offer. If
payment is to be made to, or if Securities not tendered or purchased are to
be registered in the name of, any persons other than the registered owners,
or if tendered Securities are registered in the name of any persons other
than the persons signing this Letter of Transmittal, the amount of any
transfer taxes (whether imposed on the registered holder or such other
person) payable on account of the transfer to such other person will be
deducted from the payment unless satisfactory evidence of the payment of
such taxes or exemption therefrom is submitted.
8. Special Issuance and Delivery Instructions. If the payment for Securities
tendered or if any Securities not tendered or not accepted for purchase are
to be paid or sent to a person other than the person(s) signing this Letter
of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
Holders of Securities tendering Securities by book-entry transfer may
request that Securities not accepted for purchase be credited to such
account maintained at DTC as such holder may designate.
9. Irregularities. All questions as to the forms of all documents and the
validity of (including time of receipt) and acceptance of the tenders and
withdrawals of Securities will be determined by the Company, in its sole
discretion, which determination shall be final and binding. Alternative,
conditional or contingent tenders will not be considered valid. The Company
reserves the absolute right to reject any or all tenders of Securities that
are not in proper form or the acceptance of which would, in the Company's
opinion, be unlawful. The Company also reserves the right to waive any
defects, irregularities or conditions of tender as to particular
Securities. The Company's interpretations of the terms and conditions of
the Offer (including the instructions in this Letter of Transmittal) will
be final and binding. Any defect or irregularity in connection with tenders
of Securities must be cured within such time as the Company determines,
unless waived by the Company. Tenders of Securities shall not be deemed to
have been made until all defects or irregularities have been waived by the
Company or cured. Neither the Company, the Depositary, nor any other person
will be under any duty to give notice of any defects or irregularities in
tenders of Securities, or will incur any liability to registered holders of
Securities for failure to give such notice.
10. Waiver of Conditions. To the extent permitted by applicable law, the
Company reserves the right to waive any and all conditions to the Offer as
described under "Conditions to the Offer" in the Offer to Purchase, and
accept for purchase any Securities tendered.
11. Tax Identification Number and Backup Withholding. Federal income tax law
generally requires that a holder of Securities whose tendered Securities
are accepted for purchase or such holder's assignee (in either case, the
"Payee"), provide the Depositary (the "Payor") with such Payee's correct
Taxpayer Identification Number ("TIN"), which, in the case of a Payee who
is an individual, is such Payee's social security number. If the Payor is
not provided with the correct TIN or an adequate basis for an exemption,
such Payee may be subject to a $50 penalty imposed by the Internal Revenue
Service and backup withholding in an amount equal to 28% of the gross
proceeds received pursuant to the Offer. If withholding results in an
overpayment of taxes, a refund may be obtained.
-12-
To prevent backup withholding, each Payee must provide such Payee's
correct TIN by completing the "Substitute Form W-9" set forth herein, certifying
that the TIN provided is correct (or that such Payee is awaiting a TIN) and
that:
o the Payee is exempt from backup withholding;
o the Payee has not been notified by the Internal Revenue Service that
such Payee is subject to backup withholding as a result of a failure
to report all interest or dividends; or
o the Internal Revenue Service has notified the Payee that such Payee is
no longer subject to backup withholding.
If the Payee does not have a TIN, such Payee should consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 (the "W-9 Guidelines") for instructions on applying for a
TIN, write "Applied For" in the space for the TIN in Part 1 of the Substitute
Form W-9, and sign and date the Substitute Form W-9 and the Certificate of
Awaiting Taxpayer Identification Number set forth herein. If the Payee does not
provide such Payee's TIN to the Payor within 60 days, backup withholding will
begin and continue until such Payee furnishes such Payee's TIN to the Payor.
NOTE: Writing "Applied For" on the form means that the Payee has already applied
for a TIN or that such Payee intends to apply for one in the near future.
If Securities are held in more than one name or are not in the name of
the actual owner, consult the W-9 Guidelines for information on which TIN to
report.
Exempt Payees (including, among others, most corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. To prevent possible erroneous backup withholding, an exempt Payee
must enter its correct TIN in Part I of the Substitute Form W-9, write "Exempt"
in Part 2 of such form and sign and date the form. See the W-9 Guidelines for
additional instructions. In order for a nonresident alien or foreign entity to
qualify as exempt, such person must submit a completed Form W-8, "Certificate of
Foreign Status," signed under penalty of perjury attesting to such exempt
status. Such form may be obtained from the Payor.
12. Mutilated, Lost, Stolen or Destroyed Securities. Any holder of Securities
whose Securities have been mutilated, lost, stolen or destroyed should
contact the Depositary at the address or telephone number set forth on the
cover of this Letter of Transmittal for further instructions.
13. Requests for Assistance or Additional Copies. Requests for assistance or
for additional copies of the Offer to Purchase, this Letter of Transmittal,
and the Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 may be directed to the Depositary at its address set
forth on the cover of this Letter of Transmittal.
IMPORTANT--This Letter of Transmittal, together with certificates for
tendered Securities and all other required documents, with any required
signature guarantees and all other required documents must be received by the
Depositary prior to the Offer Expiration Date.
-13-
PAYOR'S NAME: HSBC BANK USA
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Part 1-PLEASE PROVIDE TIN________________________
SUBSTITUTE YOUR TIN IN THE BOX (Social Security Number or
Form W-9 AT RIGHT AND CERTIFY Employer Identification Number)
BY SIGNING AND
DATING BELOW
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Part 2-FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING
PLEASE WRITE "EXEMPT" HERE (SEE INSTRUCTIONS) ___________
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Department of Part 3-CERTIFICATION UNDER
PENALTIES OF PERJURY, I CERTIFY THAT (1) The the
Treasury number shown on this form is my correct
TIN (or I am waiting for a number Internal to be
issued to me), and (2) I am not subject to
backup withholding Revenue Service 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.
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Payor's Recruits for THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION
Taxpayer Identification OF THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID BACK-UP
Number ("TIN") WITHHOLDING
and Certification
SIGNATURE___________________________ DATE________________
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You must cross out item (2) of Part 3 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.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE "APPLIED FOR" IN
PART 1 OF THE SUBSTITUTE FORM W-9
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CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and that I mailed or delivered an application to receive
a taxpayer identification number to the appropriate IRS center or Social
Security Administrative Office (or I intend to mail or deliver an application in
the near future). I understand that if I do not provide a taxpayer
identification number to the Payor within 60 days, the Payor is required to
withhold 28 percent of all cash payments made to me thereafter until I provide a
number.
Signature__________________________________________________ Date ______________________
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 28 PERCENT OF ANY CASH
PAYMENTS. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
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GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYOR. 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. 00-000000. The table below will help determine the number to give the payor.
FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY NUMBER OF -
1. An individual's account The individual
2. Two or more individuals (joint account) The actual owner of the account or, if combined funds,
any one of the individuals (1)
3. Husband and wife (joint account) The actual owner of the account or, if joint funds,
either person (1)
4. Custodian account of a minor (Uniform gift The minor (2)
to Minors Act)
5. Adult and minor (joint account) The adult or, if the minor is the only contributor,
the minor (1)
6. Account in the name of guardian or committee The ward, minor, or incompetent person (3)
for a designated ward, minor, or incompetent
person
7. a. The usual revocable savings trust The grantor-trustee (1)
account (grantor is also trustee)
b. So-called trust account that is not
a legal or valid trust under State The actual owner (1)
law
8. Sole proprietorship account The owner (4)
9. A valid trust, estate, or pension trust The legal entity (Do not furnish the identifying
number of the personal representative or trustee
unless the legal entity itself is not designated in
the account title.) (5)
10. Corporate account The corporation
11. Religious, charitable, or educational The organization
organization account
12. Partnership account held in the name of the The partnership
business
13. Association, club, or other tax-exempt The organization
organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of Agriculture The public entity
in the name of a public entity (such as a
State or local government, school district,
or prison) that received agricultural
program payments
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security
number.
(3) Circle the ward's, minor's or incompetent person's name and furnish
such person's social number. (4) Show the name of the owner. (5) List
first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be considered to be that of the
first name listed.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER OF SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you don't have a taxpayer identification number ("TIN") or you don't know
your number, obtain Form SS-5, Application for Social Security Card (for
resident individuals), Form SS-4, Application for Employer Identification Number
(for business and all other entities), Form W-7 for International Taxpayer
Identification Number (for alien individuals required to file U.S. tax returns).
You may obtain Form SS-5 from your local Social Security Administration Office
and Forms S04 and W-7 from the Internal Revenue Service by calling
1-800-TAX-FORM (1-800-829-3676) or from the Internal Revenue Service's Internet
website at www.irs.gov.
To complete the Substitute From W-9, if you do not have a taxpayer
identification number, write "Applied For" in the space for the taxpayer
identification number is Part I, sign and date the Form, and give it to the
requester. Generally, you will then have 60 days to obtain a TIN and furnish it
to the requester. If the payor does not receive your TIN within 60 days, backup
withholding, if applicable, will begin and will continue until you furnish your
TIN to the payor. Note: Writing "Applied For" means that you have already
applied for a TIN OR that you intend to apply for one soon.
PAYEES EXEMPT FROM BACKUP WITHHOLDING*
Payees specifically exempted from backup withholding on ALL payments include the
following:
1. An organization exempt from tax under section 501(a), or an
individual retirement plan, or a custodial account under
section 403(b)(7) if the account satisfies the requirements of
section 401(f)(2);
2. The United States or any of its agencies or instrumentalities;
3. A state, the District of Columbia, a possession of the United
States, or any of their political subdivisions or
instrumentalities;
4. A foreign government or any of its political subdivisions,
agencies or instrumentalities; or
5. An international organization or any of its agencies or
instrumentalities.
Other payees that may be exempt from backup withholding include:
6. A corporation;
7. A foreign central bank of issue;
8. A dealer in securities or commodities required to register in
the United State, the District of Columbia or a possession of
the United States;
9. A future commission merchant registered with the Commodity
Futures Trading Commission;
10. A real estate investment trust;
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* Unless otherwise noted herein, all references to section numbers or to
regulations are references to the Internal Revenue Code of 1986, as amended and
the regulations promulgated thereunder
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
custodian; or
15. A trust exempt from tax under section 664 or described in
section 4947.
The following types of payments are exempt from backup withholding as
indicated for items 1 though 15 above.
- Interest and dividend payments. All listed payees are exempt except
the payee in item 9.
- Broker transactions. All payees listed in items 1 through 13 are
exempt. A person registered under the Investment Advisors Act of 1940
who regularly acts as a broker is also exempt.
- Barter exchange transactions and patronage dividends. Only payees
listed in items 1 through 5 are exempt.
- Payments reportable under sections 6041 and 6041A. Only payees listed
in items 1 through 7 are generally exempt.
However, the following payments made to a corporation (including gross
proceeds paid to an attorney under section 6045(f), even if the attorney is a
corporation) and reportable on Form 1099-MISC, Miscellaneous Income, are not
exempt from backup withholding
- Medical and health care payments.
- Attorneys' fees.
- Payments for services paid by a Federal executive agency.
PAYMENTS EXEMPT FORM BACKUP WITHHOLDING
Payments that are not subject to information reporting also are not subject to
backup withholding. For details, see sections 6041, 6041A, 6042, 6044, 6045, and
6049, 6050A and 6050N, and their regulations. The following payments are
generally exempt from backup withholding.
Dividends and patronage dividends
- Payments to nonresident aliens subject to withholding under section
1441.
- Payments to partnerships not engaged in a trade or business in the
U.S. and which have at lease one nonresident alien partner.
- Payments of patronage dividends not paid in money.
- Payments made by certain foreign organizations.
- Section 404(k) distributions made by an ESOP.
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Interest payments
- Payments of interest on obligations issued by individuals. However, if
you pay $600 or more of interest in the course of your trade or
business to a payee, you must report the payment. Backup withholding
applies to the reportable payment if the payee has not provided a TIN
or has provided an incorrect TIN.
- Payments of tax-exempt interest (including exempt interest dividends
under section 852).
- Payments described in section 6049(b)(5) to non-resident aliens.
- Payments on tax-tree covenant bonds under section 1451.
- Payments made by certain foreign organizations.
- Mortgage or student loan interest paid to you.
Other types of payment
- Wages.
- Distributions from a pension, annuity, profit-sharing or stock bonus
plan, any IRA, or an owner-employee plan.
- Certain surrenders of life insurance contracts.
- Gambling winnings if withholding is required under section 3402(q).
However, if withholding is not required under section 3402(q), backup
withholding applies if the payees fails to furnish a TIN.
- Real estate transactions reportable under section 6045(e).
- Cancelled debts reportable under section 6050P.
- Distributions from a medical savings account and long-term care
benefits.
- Fish purchase for cash reportable under section 6050R.
JOINT FOREIGN PAYEES
If the first payee listed on an account give you a Form W-8 or a similar
statement signed under penalties of perjury, backup withholding applies unless:
1. Every joint payee provides the statement regarding foreign status, or
2. Any one of the joint payees who has not established foreign status
gives you a TIN.
If any one of the joint payees who has not established foreign status
gives you a TIN, use that number for purposes of backup withholding and
information reporting.
Exempt payees described above should file form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYOR, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" IN PART 2, SIGN AND DATE THE FORM AND
RETURN IT TO THE PAYOR. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE
DIVIDENDS, ALSO SIGN AND DATE THE FORM.
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PRIVACY ACT NOTICES.-Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payors
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes and to help verify the accuracy of your tax return.
Payors must be given the numbers whether or not recipients are required to file
tax returns. The IRS also may provide this information to the Department of
Justice for civil and criminal litigation, and to cities, states and the
District of Columbia to carry out their tax laws.
YOU MUST PROVIDE YOUR TIN TO THE PAYOR WHETHER OR NOT YOU ARE REQUIRED TO FILE A
TAX RETURN. Payors must generally withhold 28% of taxable interest, dividends
and certain other payments to a payee who does not give a TIN to a payor.
Certain penalties also may apply.
PENALTIES
(1) Penalty for Failure to Furnish Taxpayer Identification Number. If you fail
to furnish your taxpayer identification number to a payor, 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 Statements With Respect to Withholding. If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information. If you falsify certifications
or affirmations, you are subject to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR
THE INTERNAL REVENUE SERVICE.
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