Exhibit 99.1
FMC CORPORATION
LETTER OF TRANSMITTAL
Offer to exchange its
10 1/4% Senior Secured Notes due 2009,
which have been registered under the Securities Act of 1933
for any and all of its
outstanding 10 1/4% Senior Secured Notes due 2009
Pursuant to the Prospectus, dated _____________, 2003
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THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M. NEW YORK
CITY TIME, ON , 2003, UNLESS THE OFFER IS EXTENDED (THE
"EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN BEFORE 5:00 P.M., NEW YORK
CITY TIME, ON THE EXPIRATION DATE.
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The Exchange Agent for the Exchange Offer is:
WACHOVIA BANK, NATIONAL ASSOCIATION
By Mail, Hand or Overnight Delivery:
Wachovia Bank, National Association
1525 West W.T. Harris Boulevard
NC 1153 3C3
Charlotte, NC 28262-1153
Attn: Corporate Trust Operation
By Facsimile (For Eligible Institutions Only): (704) 590-7628
Confirm by Telephone: (704) 590-7410
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS BY FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL
NOT CONSTITUTE A VALID DELIVERY.
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The undersigned acknowledges that he or she has received and reviewed the
Prospectus, dated , 2003 (the "Prospectus"), of FMC Corporation, a
Delaware corporation (the "Issuer"), and this Letter of Transmittal (the
"Letter"), which together constitute the Issuer's offer (the "Exchange Offer")
to exchange up to $355,000,000 aggregate principal amount of its 10 1/4% Senior
Secured Notes due 2009 (the "New Notes"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), for a like principal
amount of its 10 1/4% Senior Secured Notes due 2009 (the "Outstanding Notes")
that were issued and sold in reliance upon an exemption from registration under
the Securities Act.
For each Outstanding Note accepted for exchange, the holder of such
Outstanding Note will receive a New Note having a principal amount equal to that
of the surrendered Outstanding Note.
This Letter is to be completed by a holder of Outstanding Notes either if
certificates are to be forwarded herewith or if a tender of certificates for
Outstanding 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") pursuant to the procedures set forth in "The
Exchange Offer--Procedures for Tendering Outstanding Notes" section of the
Prospectus and an Agent's Message (as defined herein) is not delivered. Holders
of Outstanding Notes whose certificates are not immediately available, or who
are unable to deliver their certificates or confirmation of the book-entry
tender of their Outstanding Notes into the Exchange Agent's account at the
Book-Entry Transfer Facility (a "Book-Entry Confirmation") and all other
documents required by this Letter to the Exchange Agent on or before
the Expiration Date, must tender their Outstanding Notes according to the
guaranteed delivery procedures set forth in "The Exchange Offer--Procedures for
Tendering Outstanding Notes" section of the Prospectus. See Instruction 1.
Delivery of documents to the Book-Entry Transfer Facility does not constitute
delivery to the Exchange Agent.
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,
INCLUDING THE INSTRUCTIONS TO THIS LETTER,
CAREFULLY BEFORE CHECKING ANY BOX BELOW
List below the Outstanding Notes to which this Letter relates. If the
space provided below is inadequate, the certificate numbers and principal amount
of Outstanding Notes should be listed on a separate signed schedule affixed
hereto.
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DESCRIPTION OF OUTSTANDING NOTES TENDERED
Name(s) and Address(es) of Registered
Holder(s) (Please fill in, if blank, Aggregate
exactly as name(s) appear(s) on Description of Outstanding Certificate Principal Amount Aggregate Principal Amount of
on Certificate(s)) Notes Tendered Number(s)* of Certificate(s) Outstanding Notes Tendered**
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____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
Total Outstanding
Notes
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* DOES NOT need to be completed by holders tendering Outstanding Notes by
book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Outstanding Notes
evidenced by each certificate delivered to the Exchange Agent are being
tendered hereby. See Instruction 4.
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THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OUTSTANDING
NOTES TENDERED" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED
THE OUTSTANDING NOTES AS SET FORTH IN SUCH BOX ABOVE.
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[_] CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING
Name of Tendering Institution(s) __________________________________________
Account Number __________________________________________
Transaction Code Number __________________________________________
By crediting Outstanding Notes to the Exchange Agent's Account at the
Book-Entry Transfer Facility in accordance with the Book-Entry Transfer
Facility's Automated Tender Offer Program ("ATOP") and by complying with
applicable ATOP procedures with respect to the Exchange Offer, including
transmitting an Agent's Message to the Exchange Agent in which the holder of
Outstanding Notes acknowledges receipt of the Letter and agrees to be bound by
the terms of this Letter, the participant in ATOP confirms on behalf of itself
and the beneficial owners of such Outstanding Notes all provisions of this
Letter applicable to it and such beneficial owners as if it had completed the
information required herein and executed and transmitted this Letter to the
Exchange Agent.
[_] CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE
AGENT AND COMPLETE THE FOLLOWING:
Name of Registered Holder _____________________________________
Window Ticket Number (if any) _____________________________________
Date of Execution of Notice of Guaranteed Delivery ________________
Name of Eligible Institution that guaranteed delivery ________________
IF DELIVERED BY BOOK-ENTRY TRANSFER, COMPLETE THE FOLLOWING:
Account Number _____________________________________
Transaction Code Number _____________________________________
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: _________________________________________________________
Address: _________________________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that
it is not participating in, and does not intend to participate in, a
distribution of the New Notes. If the undersigned is a broker-dealer that will
receive New Notes for its own account in exchange for Outstanding Notes, it
represents that the Outstanding Notes to be exchanged for New Notes were
acquired by it as a result of market-making or other trading activities and
acknowledges that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such New 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.
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Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Issuer the aggregate principal amount of
Outstanding Notes indicated above. Subject to, and effective upon, the
acceptance for exchange of the Outstanding Notes tendered hereby, the
undersigned hereby sells, assigns and transfers to, or upon the order of, the
Issuer all right, title and interest in and to such Outstanding Notes as are
being tendered hereby, and irrevocably constitutes and appoints the Exchange
Agent as agent and attorney-in-fact to cause the Outstanding Notes to be
assigned, transferred and exchanged.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, assign and transfer the Outstanding Notes
tendered hereby and to acquire New Notes issuable upon the exchange of such
tendered Outstanding Notes, and that the Issuer will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claim when the same are accepted
by the Issuer. The undersigned hereby further represents that (1) any New Notes
acquired pursuant to the Exchange Offer are being acquired in the ordinary
course of business of the person receiving such New Notes, whether or not such
person is the holder; (2) it is not an "affiliate" of the Issuer as defined in
Rule 405 under the Securities Act of 1933, as amended (the "Securities Act");
(3) it is not participating in, and does not intend to participate in, and has
no arrangement or understanding with any person to participate in, a
distribution of the Outstanding Notes or the New Notes; and (4) if such holder
is a broker or dealer registered under the Exchange Act, it will receive the New
Notes for its own account in exchange for Outstanding Notes that were acquired
as a result of market-making activities or other trading activities. Each
broker-dealer referred to in clause (4) of the preceding sentence must
acknowledge that it will deliver a prospectus in connection with any resale of
such New Notes. The undersigned also warrants that acceptance of any tendered
Outstanding Notes by the Issuer
and the issuance of New Notes in exchange therefor shall constitute performance
in full by the Issuer of certain of its obligations under the Registration
Rights Agreement.
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 New Notes issued in exchange for the Outstanding Notes
pursuant to the Exchange Offer may be offered for resale, resold and otherwise
transferred by holders thereof (other than (1) any such holder that is an
"affiliate" of the Issuer within the meaning of Rule 405 under the Securities
Act and (2) any broker-dealer that purchases Outstanding Notes from the Issuer
to resell pursuant to Rule 144A under the Securities Act ("Rule 144A") or any
other available exemption), without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such New
Notes are acquired in the ordinary course of such holders' business and such
holders have no arrangement or understanding with any person to participate in
the distribution of such New Notes and are not participating in, and do not
intend to participate in, the distribution of the New Notes. However, the Issuer
does not intend to request the SEC to consider, and 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. The undersigned
acknowledges that any holder that is an affiliate of the Issuer, or is
participating in or intends to participate in or has any arrangement or
understanding with respect to the distribution of the New Notes to be acquired
pursuant to the Exchange Offer, (1) could not rely on the applicable
interpretations of the staff of the SEC and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
The undersigned, if a California resident, hereby further represents
and warrants that the undersigned (or the beneficial owner of the Outstanding
Notes tendered hereby, if not the undersigned) (1) is a bank, savings and loan
association, trust company, insurance company, investment company registered
under the Investment Company Act of 1940, pension or profit-sharing trust (other
than a pension or profit-sharing trust of the Issuer, a self-employed individual
retirement plan or individual retirement account), or a corporation which has a
net worth on a consolidated basis according to its most recent audited financial
statement of not less than $14,000,000, and (2) is acquiring the New Notes for
its own account for investment purposes (or for the account of the beneficial
owner of such New Notes for investment purposes).
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Issuer or the Exchange Agent to be necessary or
desirable to complete the exchange, assignment and transfer of the Outstanding
Notes tendered hereby. All authority conferred or agreed to be conferred in this
Letter and every obligation of the undersigned hereunder shall be binding upon
the successors, assigns, heirs, executors, administrators, trustees in
bankruptcy and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned. This
tender may be withdrawn only in accordance with the procedures set forth in "The
Exchange Offer--Withdrawal Rights" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please deliver the New Notes (and, if applicable,
substitute certificates representing Outstanding Notes for any Outstanding Notes
not exchanged) in the name of the undersigned or, in the case of a book-entry
delivery of Outstanding Notes, please credit the account indicated above
maintained at the Book Entry Transfer Facility. Similarly, unless otherwise
indicated under the box entitled "Special Delivery Instructions" below, please
send the New Notes (and, if applicable, substitute certificates representing
Outstanding Notes for any Outstanding Notes not exchanged) to the undersigned at
the address shown above in the box entitled "Description of Outstanding Notes
Tendered."
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SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 3 and 4)
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To be completed ONLY if certificates for Outstanding Notes not
exchanged and/or New Notes are to be issued in the name of and sent to someone
other than the person or persons whose signature(s) appear(s) on this Letter
above, or if Outstanding 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 New Debentures and/or Existing Debentures to:
________________________________________________________________________________
Name(s) _______________________________________________________________________
(Please Type or Print)
Address _______________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
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(Taxpayer Identification or Social Security Number)
(Complete Substitute Form W-9)
* Credit unexchanged Outstanding 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)
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SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if certificates for Outstanding Notes not exchanged
and/or New Notes are to be sent to someone other than the person or persons
whose signature(s) appear(s) on this Letter above or to such person or persons
at an address other than shown in the box entitled "Description of Outstanding
Notes Tendered" on this Letter above.
Mail New Notes and/or Outstanding Notes to:
Name(s) _____________________________________________________________________
(Please Type or Print)
Address _____________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
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PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.
________________________________________________________________________________
________________________________________________________________________________
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9)
________________________________________________________________________________
________________________________________________________________________________
Signature(s) of Owner
Area Code and Telephone Number: ______________________________________________
Date: __________________________________________________________________________
If a holder is tendering any Outstanding Notes, this Letter must be signed
by the registered holder(s) as the name(s) appear(s) on the certificate(s) for
the Outstanding Notes or by any person(s) authorized to become registered
holder(s) by endorsements and documents transmitted herewith. If signature is by
a trustee, executor, administrator, guardian, officer or other person acting in
a fiduciary or representative capacity, please set forth full title. See
Instruction 3.
Name(s): ______________________________________________________________________
(Please Type or Print)
Capacity: ______________________________________________________________________
Address: ______________________________________________________________________
(Including Zip Code)
SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 3)
Signature(s) Guaranteed
by an Eligible Institution: ____________________________________________________
(Authorized Signature)
Title: ______________________________________________________________________
Name and Firm: ________________________________________________________________
Date: ______________________________________________________________________
________________________________________________________________________________
IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF OR AN AGENT'S MESSAGE IN LIEU
HEREOF (TOGETHER WITH THE CERTIFICATES FOR OUTSTANDING NOTES OR A BOOK-ENTRY
CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED
DELIVERY) MUST BE RECEIVED BY THE EXCHANGE AGENT BEFORE 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
________________________________________________________________________________
FMC CORPORATION
INSTRUCTIONS
Forming part of the Terms and
Conditions of the offer to exchange its
outstanding 10 1/4% Senior Secured Notes due
2009,
for any and all of its
10 1/4% Senior Secured Notes due 2009,
which have been registered under the Securities Act
1. Delivery of this Letter and Outstanding Notes; Guaranteed Delivery
Procedures. This Letter is to be completed by Outstanding Note holders either if
certificates are to be forwarded herewith or if tenders are to be made pursuant
to the procedures for delivery by book-entry transfer set forth in "The Exchange
Offer--Procedures for Tendering Outstanding Notes" section of the Prospectus and
an Agent's Message is not delivered. Certificates for all physically tendered
Outstanding Notes, or Book-Entry Confirmation, as the case may be, as well as a
properly completed and duly executed Letter (or manually signed facsimile
hereof) and any other documents required by this Letter, must be received by the
Exchange Agent at the address set forth herein on or before the Expiration Date,
or the tendering holder must comply with the guaranteed delivery procedures set
forth below. Outstanding Notes tendered hereby must be in denominations of
principal amount of $1,000 and any integral multiple thereof. The term "Agent's
Message" means a message, transmitted by the Book-Entry Transfer Facility and
received by the Exchange Agent and forming a part of the Book-Entry
Confirmation, which states that the Book-Entry Transfer Facility has received an
express acknowledgment from a participant tendering Outstanding Notes that are
subject to the Book-Entry Confirmation and that such participant has received
and agrees to be bound by this Letter and that the Issuer may enforce this
Letter against such participant.
Outstanding Note holders whose certificates for Outstanding Notes are not
immediately available or who cannot deliver their certificates, Letter and all
other required documents to the Exchange Agent on or before the Expiration Date,
or who cannot complete the procedure for book-entry transfer on a timely basis,
may tender their Outstanding Notes pursuant to the guaranteed delivery
procedures set forth in "The Exchange Offer--Procedures for Tendering
Outstanding Notes" section of the Prospectus. Pursuant to such procedures, (1)
such tender must be made through an Eligible Institution (as defined herein),
(2) before the Expiration Date, the Exchange Agent must receive from such
Eligible Institution a Notice of Guaranteed Delivery, substantially in the form
provided by the Issuer (by telegram, telex, facsimile transmission, mail or hand
delivery), setting forth the name and address of the holder of Outstanding
Notes, the names in which the Outstanding Notes are registered, the amount of
Outstanding Notes tendered and, if possible, the certificate number of the
Outstanding Notes to be tendered, stating that the tender is being made thereby
and guaranteeing that within three New York Stock Exchange ("NYSE") trading days
after the Expiration Date, the certificates for all physically tendered
Outstanding Notes, or a Book-Entry Confirmation, together with a properly
completed and duly executed Letter and any other required documents will be
deposited by the Eligible Institution with the Exchange Agent, and (3) the
certificates for all physically tendered Outstanding Notes, in proper form for
transfer, or Book-Entry Confirmation, as the case may be, together with a
properly completed and duly executed Letter and all other required documents,
are received by the Exchange Agent within three NYSE trading days after the
Expiration Date.
The method of delivery of this Letter, the Outstanding Notes and all other
required documents is at the election and risk of the tendering holders, but the
delivery will be deemed made only when actually received by the Exchange Agent.
If Outstanding Notes are sent by mail, it is suggested that the mailing be made
sufficiently in advance of the Expiration Date to permit delivery to the
Exchange Agent before 5:00 p.m., New York City time, on the Expiration Date.
See "The Exchange Offer" section of the Prospectus.
2. Partial Tenders (Not Applicable to Outstanding Note holders Who Tender
by Book-Entry Transfer). If less than all of the Outstanding Notes evidenced by
a submitted certificate are to be tendered, the tendering holder(s) should fill
in the aggregate principal amount of Outstanding Notes to be tendered in the box
above entitled "Description of Outstanding Notes Tendered--Principal Amount
Tendered." A reissued certificate representing the balance of untendered
Outstanding Notes will be sent to such tendering holder, unless otherwise
provided in the appropriate box on this Letter, promptly after the Expiration
Date. All of the Outstanding Notes delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of
Signatures. If this Letter is signed by the registered holder of the Outstanding
Notes tendered hereby, the signature must correspond exactly with the name as
written on the face of the certificates without any change whatsoever.
If any tendered Outstanding Notes are owned of record by two or more joint
owners, all of such owners must sign this Letter.
If any tendered Outstanding Notes are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter as there are different registrations of
certificates.
When this Letter is signed by the registered holder or holders of the
Outstanding Notes specified herein and tendered hereby, no endorsements of
certificates or separate bond powers are required. If, however, the New Notes
are to be issued, or any untendered Outstanding Notes are to be reissued, to a
person other than the registered holder, then endorsements of any certificates
transmitted hereby or separate bond powers are required. Signatures on such
certificate(s) must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered holder or
holders of any certificate(s) specified herein, such certificate(s) must be
endorsed or accompanied by appropriate bond powers, in either case signed
exactly as the name or names of the registered holder or holders appear(s) on
the certificate(s) and signatures on such certificate(s) must be guaranteed by
an Eligible Institution.
If this Letter or any certificates or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and,
unless waived by the Issuer, proper evidence satisfactory to the Issuer of their
authority to so act must be submitted.
If the New Notes and/or Outstanding Notes not exchanged are to be delivered
to an address other than that of the registered holder appearing on the note
registrar for the Outstanding Notes, the signature in this Letter must be
guaranteed by an Eligible Institution.
Endorsements on certificates for Outstanding Notes or signatures on bond
powers required by this Instruction 3 must be guaranteed by a firm which is a
member of a registered national securities exchange or a member of the National
Association of Securities Dealers, Inc., or a clearing agency, insured credit
union, a savings association or a commercial bank or trust company having an
office or correspondent in the United States (each an "Eligible Institution").
Signatures on this Letter need not be guaranteed by an Eligible
Institution, provided the Outstanding Notes are tendered: (1) by a registered
holder of Outstanding Notes (which term, for purposes of the Exchange Offer,
includes any participant in the Book-Entry Transfer Facility system whose name
appears on a security position listing as the holder of such Outstanding Notes)
who has not completed the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" on this Letter, or (2) for the account of an
Eligible Institution.
4. Special Issuance and Delivery Instructions. Tendering holders of
Outstanding Notes should indicate in the applicable box the name and address to
which New Notes issued pursuant to the Exchange Offer and/or substitute
certificates evidencing Outstanding Notes not exchanged are to be issued or
sent, if different from the name or address of the person signing this Letter.
In the case of issuance in a different name, the employer identification or
social security number of the person named must also be indicated. Holders
tendering Outstanding Notes by book-entry transfer may request that Outstanding
Notes not exchanged be credited to such account maintained at the Book-Entry
Transfer Facility as such Outstanding Note holder may designate hereon. If no
such instructions are given, such Outstanding Notes not exchanged will be
returned to the name or address of the person signing this Letter.
5. Tax Identification Number. Federal income tax law generally requires
that a tendering holder who is a U.S. person (or a U.S. resident alien) whose
Outstanding Notes are accepted for exchange must provide the Issuer (as payor)
with such holder's correct Taxpayer Identification Number ("TIN") on Substitute
Form W-9 below, which in the case of a tendering holder who is an individual, is
his or her social security number. If the Issuer is not provided with the
current TIN or an adequate basis for an exemption, such tendering holder may be
subject to a $50 penalty imposed by the Internal Revenue Service and backup
withholding of 30% of all payments made to the tendering holder or all
reportable payments made after the exchange. More serious penalties may be
imposed for providing false information which, if willfully done, may result in
fines and/or imprisonment. If withholding results in an overpayment of taxes, a
refund may be obtained if timely filed.
6. Federal Income Tax Withholding. To prevent backup withholding, each
tendering holder of Outstanding Notes who is a U.S. person (or U.S. resident
alien) must provide its correct TIN by completing the Substitute Form W-9 set
forth below, certifying that (1) the TIN provided is correct (or that such
holder is awaiting a TIN), (2) that (A) the holder is exempt from backup
withholding, or (B) the holder has not been notified by the Internal Revenue
Service that such holder is subject to backup withholding as a result of a
failure to report all interest or dividends or (C) the Internal Revenue Service
has notified the holder that such holder is no longer subject to backup
withholding, and (3) the holder is a U.S. person or U.S. resident alien. If such
holder does not have a TIN, such holder should check the box in Part 2 of the
Substitute Form W-9 and write "applied for" in lieu of its TIN. Note: Checking
this box and writing "applied for" on the form means that such holder has
already applied for a TIN or that such holder intends to apply for one in the
near future. If such holder does not provide its TIN to the Issuer within 60
days, backup withholding of 30% of any payments made to the tendering holder
will begin and continue until such holder furnishes its TIN to the Issuer.
Exempt holders of Outstanding Notes (including, among others, corporations
and certain tax exempt organizations) are not subject to these backup
withholding and reporting requirements. If the tendering holder of Outstanding
Notes is a nonresident alien or foreign entity not subject to backup
withholding, such holder must give the Issuer an appropriate completed Form W-8
(e.g., for W-8BEN, Form W-8IMY). These forms may be obtained from the Exchange
Agent.
In the case of a foreign tendering holder, even if such tendering holder
has provided the required certification to avoid backup withholding, the
Exchange Agent will withhold 30% of the gross payments made pursuant to the
offer unless a reduced rate of withholding or an exemption from withholding is
applicable.
The Exchange Agent will withhold United States federal income taxes equal
to 30% of the gross payments payable to a foreign tendering holder unless the
Exchange Agent and we determine that (a) a reduced rate of withholding is
available pursuant to a tax treaty or (b) an exemption from withholding is
applicable because the gross proceeds are effectively connected with the conduct
of a trade or business within the United States. For this purpose, a "foreign
tendering holder" is any holder that is not:
. a citizen or resident of the United States,
. a corporation, partnership, or other entity created or organized in or
under the laws of the United States, any State or any political
subdivision thereof,
. an estate, the income of which is subject to United States federal
income taxation regardless of the source of the income, or
. a trust whose administration is subject to the primary supervision of a
United States court and which has one or more United States persons who
have the authority to control all of its substantial decisions.
In order to obtain a reduced rate of withholding pursuant to a tax treaty,
a foreign tendering holder must deliver to the Exchange Agent before any payment
a properly completed and executed IRS Form W-8BEN with respect to the foreign
tendering holder and, in the case of a foreign tendering holder that is neither
an individual nor a corporation, the foreign tendering holder may be required to
deliver both a Form W-8IMY and an appropriate Form W-8BEN or W-9 with respect to
partners, members, beneficiaries or owners (and their beneficial owners) of the
foreign stockholder. In order to obtain an exemption from withholding on the
grounds that the gross proceeds paid pursuant to the offer are effectively
connected with the conduct of a trade or business within the United States, a
foreign tendering holder must deliver to the Exchange Agent before any payment a
properly completed and executed IRS Form W-8ECI. The Exchange Agent and we will
determine a holder's status as a foreign holder and eligibility for a reduced
rate of, or exemption from, withholding by reference to any outstanding
certificates or statements concerning eligibility for a reduced rate of, or
exemption from, withholding (e.g., IRS Form W-8BEN, IRS Form W-8IMY, or IRS Form
W-8ECI) unless facts and circumstances indicate that reliance is not warranted.
A foreign tendering holder who has not previously submitted the appropriate
certificate of, or exemption from, withholding for which such stockholder may be
eligible should consider doing so in order to avoid overwithholding. Backup
withholding generally will not apply to amounts subject to the regular 30%
withholding or a treaty-reduced rate of withholding.
7. Transfer Taxes. The Issuer will pay all stamp or transfer taxes, if
any, applicable to the transfer of Outstanding Notes to it or its order pursuant
to the Exchange Offer. If, however, New Notes and/or substitute Outstanding
Notes not exchanged are to be delivered to, or are to be issued in the name of
any person other than the registered holder of the Outstanding Notes tendered,
or if tendered Outstanding Notes are registered in the name of any person other
than the person signing this Letter, or if a transfer tax is imposed for any
reason other than the transfer of Outstanding Notes to the Issuer or its order
pursuant to the Exchange Offer, the amount of any such transfer taxes (whether
imposed on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted herewith, the amount of such transfer taxes will be
billed directly to such tendering holder.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Outstanding Notes specified in this
Letter.
8. Waiver of Conditions. The Issuer reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
9. No Conditional Tenders. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering holders of Outstanding Notes,
by execution of this Letter, shall waive any right to receive notice of the
acceptance of their Outstanding Notes for exchange.
Neither the Issuer, the Exchange Agent nor any other person is obligated to
give notice of any defect or irregularity with respect to any tender of
Outstanding Notes nor shall any of them incur any liability for failure to give
any such notice.
10. Mutilated, Lost, Stolen or Destroyed Outstanding Notes. Any holder
whose Outstanding Notes have been mutilated, lost, stolen or destroyed should
contact the Exchange Agent at the address indicated above for further
instructions.
11. Requests for Assistance or Additional Copies. Questions relating to the
procedure for tendering, as well as requests for additional copies of the
Prospectus and this Letter, may be directed to the Exchange Agent, at the
address and telephone number indicated above.
12. Incorporation of Letter of Transmittal. This Letter shall be deemed to
be incorporated in and acknowledged and accepted by any tender through the
Book-Entry Transfer Facility's ATOP procedures by any participant on behalf of
itself and the beneficial owners of any Outstanding Notes so tendered.
________________________________________________________________________________
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 5)
________________________________________________________________________________
PAYOR: WACHOVIA BANK, NATIONAL ASSOCIATION
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SUBSTITUTE Part 1--Taxpayer Identification TIN ____________________________________________
FORM W-9 Number--for all accounts, enter (Social Security
taxpayer identification Number or
Employer
Identification
Number)
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Department of the Treasury Part 2--FOR PAYEES EXEMPT FROM BACKUP
Internal Revenue Service WITHHOLDING PLEASE WRITE "EXEMPT" HERE (SEE
INSTRUCTIONS) __________________
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Payor's Request for Taxpayer Part 3--Certification--UNDER PENALTIES OF PERJURY, I CERTIFY THAT (1) the number shown on
Identification Number this form is my correct Taxpayer Identification Number (or I am waiting for a number to
("TIN") be issued to me), (2) I am not subject to backup withholding because: (a) I am exempt
and Certification from backup withholding, or (b) I have not been notified by the Internal Revenue Service
(the "IRS") that I am subject to backup withholding as a result of a failure to report
all interest or dividends or (c) the IRS has notified me that I am no longer subject to
backup withholding, and (3) I am a U.S. person or U.S. resident alien.
-------------------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS--You must cross out item (2) in 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 and you have not been notified by
the IRS that you are no longer subject to backup withholding.
SIGNATURE _____________________ DATE ______________
- -----------------------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 30% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
EXCHANGE OFFER AND A $50 PENALTY TO THE IRS. YOU MUST COMPLETE THE
FOLLOWING CERTIFICATE IF YOU ARE AWAITING (OR WILL SOON APPLY FOR) A
TAXPAYER IDENTIFICATION NUMBER.
- -----------------------------------------------------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and that I
mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office (or I intend to mail or deliver an application in the near future). I understand
that, notwithstanding the information I provided in Part 3 of the Substitute Form W-9 above (and the fact that I have completed
this Certificate of Awaiting Taxpayer Identification Number), if I do not provide a taxpayer identification number to the
Depositary within sixty (60) days for the date of this certification, the Depositary is required to withhold at a current rate of
30% on all cash payments made to me thereafter until I provide a number.
_________________________________________________________ ______________________________________
Signature Date
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9.
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 (SSNs) have nine digits separated by two hyphens: i.e.,
000-00-0000. Employer Identification Numbers (EINs) have nine digits separated
by only one hyphen: i.e, 00-0000000. The table below will help determine the
number to give the payor.
- ------------------------------------------------------------------ --------------------------------------------------------------
Give the NAME and Give the NAME and
For this type of account: SOCIAL SECURITY For this type of account: SOCIAL SECURITY
NUMBER of -- NUMBER of --
- ------------------------------------------------------------------ --------------------------------------------------------------
1. One individual The individual 9. A valid trust, estate, Legal entity (Do not furnish
or pension trust the identifying number of the
2. Two or more individuals The actual owner of the personal representative or
(joint account) account or, if combined trustee unless the legal
funds, the first individual entity itself is not
on the designated in the account
account (1) title.) (5)
3. Husband and wife (joint The actual owner of the 10. Corporate Account The corporation
account) account or, if combined
funds, the first individual
on the account (1) 11. Religious, charitable, The organization
educational organization
4. Custodian account of a The minor (2) 12. Partnership account held The partnership (6)
minor (Uniform Gift to in the name of the
Minors Act) business
5. Adult and minor (joint The actual owner of the 13. Association, club or The organization
account) account or, if combined other tax-exempt
funds, the first individual organization
on the account (1)
6. Account in the name of The ward, minor, or 14. A broker or registered The broker or nominee
guardian or committee for a incompetent (3) nominee
designated ward, minor, or
incompetent person
7. a. The usual revocable The grantor-trustee (1) 15. Account with the The public entity
savings trust (grantor is Department of
also trustee) Agriculture in the name
of a public entity (such
as a state or local
government, school
district, or prison) that
receives agricultural
program payments
b. So-called trust account The actual owner (1)
that is not a legal or
valid trust under state law
8. Sole proprietorship account The owner (4)
and single-member limited
liability companies (LLCs)
- ------------------------
(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 SSN.
(3) Circle the ward's name, the minor's name, or the incompetent person's name
and furnish such person's SSN.
(4) Show the name and social security or employer identification number of the
owner. You may also enter your business or the "doing business as" name.
In addition to entering the owner's name, single member LLCs must enter
their name on the "doing business as" line.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
(6) This also applies to LLCs with at least two members.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Obtaining a number
If you do not have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Card (for
individuals), or Form W-7, Application for IRS Individual Taxpayer
Identification Number, or Form SS-4, Application for Employer Identification
Number (for businesses and all other entities), from the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
Payees Exempt from Backup Withholding
Payees specifically exempted from backup withholding on interest and dividend
payments include the following:
. A corporation.
. A financial institution.
. An organization exempt from tax under Section 501(a) or an individual
retirement plan.
. The United States or any agency or instrumentality thereof.
. A dealer in securities or commodities required to register in the U.S. or
a possession of the U.S.
. A real estate investment trust.
. A common trust fund operated by a bank under Section 584(a) of the Code.
. An exempt charitable remainder trust, described in Section 664 of the
Code, or a non-exempt trust described in Section 4947 of the Code.
. An entity registered at all times under the Investment Company Act of
1940.
. A foreign central bank of issue.
Payments Exempt from Backup Withholding
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under Section 1441
of the Code.
. Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident alien partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payor's trade or business and you have not
provided your correct taxpayer identification number to the payor.
. Payments of tax-exempt interest (including exempt-interest dividends under
Section 852 of the Code).
. Payments described in Section 6049(b)(5) of the Code to nonresident
aliens.
. Payments on tax-free covenant bonds under Section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYOR. FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYOR. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under Sections 6041, 6041(a),
6042, 6044, 6045, 6049, 6050A, and 6050N of the Code.
Privacy Act Notice -- Section 6109 of the Code requires you to give correct
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 a tax return. Payors must generally withhold 30
% of taxable interest, dividend, and certain other payments to a payee who does
not furnish a correct taxpayer identification number to a payor. 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 requester, 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 imposition of
backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information -- Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.