Exhibit 99.1
The Scotts Company
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
6.625% SERIES A SENIOR SUBORDINATED NOTES DUE 2013
IN EXCHANGE FOR
6.625% SERIES B SENIOR SUBORDINATED NOTES DUE 2013
PURSUANT TO THE PROSPECTUS
DATED , 2004
The exchange offer will expire at 5:00 p.m., New York City time, on ,
2004, unless extended (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 Tenders may be withdrawn at any time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 the Expiration Date.
The Exchange Agent for the Exchange Offer is:
U.S. Bank National Association
By Registered or Certified Mail or Hand or Overnight Delivery:
U.S. Bank National Association
U.S. Bank West Side Flats Operations Center
60 Livingston Ave.
St. Paul, MN 55107
Attention: Specialized Finance
Facsimile Transmissions (Eligible Institutions Only): (651) 495-8158
Information: (800) 934-6802
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE WILL
NOT CONSTITUTE VALID DELIVERY TO THE EXCHANGE AGENT.
The undersigned acknowledges receipt of the Prospectus dated , 2004
(the "Prospectus"), of The Scotts Company, an Ohio corporation (the "Company"),
and this Letter of Transmittal (the "Letter of Transmittal"), which together
with the Prospectus constitutes the Company's offer (the "Exchange Offer") to
exchange $1,000 principal amount of its 6.625% Series B Senior Subordinated
Notes due 2013 (the "Exchange Notes") for each $1,000 principal amount of its
outstanding 6.625% Series A Senior Subordinated Notes due 2013 (the "Original
Notes"). Recipients of the Prospectus should read the requirements described in
such Prospectus with respect to eligibility to participate in the Exchange
Offer. Capitalized terms used but not defined herein have the meaning given to
them in the Prospectus.
The undersigned hereby tenders the Original Notes described in the box
entitled "Description of Original Notes" below pursuant to the terms and
conditions described in the Prospectus and this Letter of Transmittal. The
undersigned is the registered holder of all the Original Notes (the "Holder")
and the undersigned represents that it has received from each beneficial owner
of Original Notes (the "Beneficial Owners") a duly completed and executed form
of "Instruction to Registered Holder from Beneficial Owner" accompanying this
Letter of Transmittal, instructing the undersigned to take the action described
in this Letter of Transmittal.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING ANY
BOX BELOW.
This Letter of Transmittal is to be used by a Holder (i) if certificates
representing Original Notes are to be forwarded herewith and (ii) if a tender
is made pursuant to the guaranteed delivery procedures in the section of the
Prospectus entitled "The Exchange Offer -- Guaranteed Delivery Procedures."
Holders that are tendering by book-entry transfer to the Exchange Agent's
account at DTC can execute the tender through ATOP for which the Exchange Offer
will be eligible. DTC participants that are accepting the Exchange Offer must
transmit their acceptance to DTC which will verify the acceptance and execute a
book-entry delivery to the Exchange Agent'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 Exchange Agent for its acceptance. Transmission of
the Agent's Message by DTC will satisfy the terms of the Exchange Offer as to
execution and delivery of a Letter of Transmittal by the participant identified
in the Agent's Message.
Any Beneficial Owner whose Original Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact such Holder promptly and instruct such Holder to
tender on behalf of the Beneficial Owner. If such Beneficial Owner wishes to
tender on its own behalf, such Beneficial Owner must, prior to completing and
executing this Letter of Transmittal and delivering its Original Notes, either
make appropriate arrangements to register ownership of the Original Notes in
such Beneficial Owner's name or obtain a properly completed bond power from the
Holder. The transfer of record ownership may take considerable time.
In order to properly complete this Letter of Transmittal, a Holder must (i)
complete the box entitled "Description of Original Notes," (ii) if appropriate,
check and complete the boxes relating to book-entry transfer, guaranteed
delivery, Special Issuance Instructions and Special Delivery Instructions,
(iii) sign the Letter of Transmittal by completing the box entitled "Sign Here
To Tender Your Notes" and (iv) complete the Substitute Form W-9. Each Holder
should carefully read the detailed instructions below prior to completing the
Letter of Transmittal.
Holders of Original Notes who desire to tender their Original Notes for
exchange and (i) whose Original Notes are not immediately available or (ii) who
cannot deliver their Original Notes, this Letter of Transmittal and all other
documents required hereby to the Exchange Agent on or prior to the Expiration
Date, must tender the Original Notes pursuant to the guaranteed delivery
procedures set forth in the section of the Prospectus entitled "The Exchange
Offer -- Guaranteed Delivery Procedures." See Instruction 2.
Holders of Original Notes who wish to tender their Original Notes for
exchange must complete columns (1) through (3) in the box below entitled
"Description of Original Notes," and sign the box below entitled "Sign Here To
Tender Your Notes." If only those columns are completed, such Holder will have
tendered for exchange all Original Notes listed in column (3) below. If the
Holder wishes to tender for exchange less than all of such Original Notes,
column (4) must be completed in full. In such case, such Holder should refer to
Instruction 5.
The Exchange Offer may be extended, terminated or amended, as provided in
the Prospectus. During any such extension of the Exchange Offer, all Original
Notes previously tendered and not withdrawn pursuant to the Exchange Offer will
remain subject to such Exchange Offer.
The undersigned hereby tenders for exchange the Original Notes described in
the box entitled "Description of Original Notes" below pursuant to the terms
and conditions described in the Prospectus and this Letter of Transmittal.
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- ----------------------------------------------------------------------------------------------------
DESCRIPTION OF ORIGINAL NOTES TENDERED
- ----------------------------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Owner(s) Certificate Aggregate Principal
(Please fill in, if blank, exactly as Name(s) appear(s) on Number(s)* Principal Amount of
Original Note(s)) Amount Original Notes
Represented by Tendered **
Outstanding
Original Notes
- ----------------------------------------------------------------------------------------------------
(If you need more space, attach a list and sign the list)
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
Total Amount
Tendered:
- ----------------------------------------------------------------------------------------------------
- --------
* Need not be completed by book-entry holders.
** All Original Notes held shall be deemed tendered unless a lesser number is
specified in this column.
[_]CHECK HERE IF TENDERED ORIGINAL NOTES ARE ENCLOSED HEREWITH.
[_]CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS ONLY):
Name(s) of Registered Holder(s) _____________________________________________
Window Ticket Number (if any) _______________________________________________
Date of Execution of Notice of Guaranteed Delivery __________________________
Name of Institution which Guaranteed Delivery _______________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution_____________________________________________
DTC Book-Entry 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:_____________________________________________________________________
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Only Holders are entitled to tender their Original Notes for exchange in the
Exchange 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 Original Notes and who wishes to make book-entry delivery of Original Notes
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
Original Notes for exchange. Persons who are Beneficial Owners of Original
Notes but are not Holders and who seek to tender Original Notes should (i)
contact the Holder and instruct such Holder to tender on his or her behalf,
(ii) obtain and include with this Letter of Transmittal, Original Notes
properly endorsed for transfer by the Holder or accompanied by a properly
completed bond power from the Holder, with signatures on the endorsement or
bond power guaranteed by a firm that is an eligible guarantor institution
within the meaning of Rule 17Ad-5 under the Exchange Act, including 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 (iii) effect a record transfer
of such Original Notes from the Holder to such Beneficial Owner and comply with
the requirements applicable to Holders for tendering Original Notes prior to
the Expiration Date. See the section of the Prospectus entitled "The Exchange
Offer -- Procedures for Tendering."
SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 6, 7 and 8)
To be completed ONLY (i) if Exchange Notes issued in exchange for the
Original Notes, certificates for Original Notes in a principal amount not
exchanged for Exchange Notes or Original Notes (if any) not tendered for
exchange are to be issued in the name of someone other than the undersigned or
(ii) if Original Notes tendered by book-entry transfer which are not exchanged
are to be returned by credit to an account maintained at DTC.
Issue to:
Name(s):________________________________________________________________________
(Please Type or Print)
Address:________________________________________________________________________
_________________________________________________________________________
(Include Zip Code)
________________________________________________________________________________
Taxpayer Identification or Social Security Number
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 6, 7 and 8)
To be completed ONLY if the Exchange Notes issued in exchange for Original
Notes, certificates for Original Notes in a principal amount not exchanged for
Exchange Notes or Original Notes (if any) not tendered for exchange are to be
mailed or delivered (i) to someone other than the undersigned or (ii) to the
undersigned at an address other than the address shown below the undersigned's
signature.
Mail or deliver to:
Name(s):________________________________________________________________________
(Please Type or Print)
Address:________________________________________________________________________
_________________________________________________________________________
(Include Zip Code)
________________________________________________________________________________
Taxpayer Identification or Social Security Number
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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 Company for exchange the Original Notes
indicated above. Subject to, and effective upon, acceptance for exchange of the
Original Notes tendered for exchange herewith, the undersigned will have
irrevocably sold, assigned, transferred and exchanged, to the Company, all
right, title and interest in, to and under all of the Original Notes tendered
for exchange hereby, and hereby will have appointed the Exchange Agent as the
true and lawful agent and attorney-in-fact (with full knowledge that the
Exchange Agent also acts as agent of the Company) of such Holder with respect
to such Original Notes, with full power of substitution to (i) deliver
certificates representing such Original Notes, or transfer ownership of such
Original Notes on the account books maintained by DTC (together, in any such
case, with all accompanying evidences of transfer and authenticity), to the
Company, (ii) present and deliver such Original Notes for transfer on the books
of the Company and (iii) receive all benefits and otherwise exercise all rights
and incidents of beneficial ownership with respect to such Original Notes, all
in accordance with the terms of the Exchange Offer. The power of attorney
granted in this paragraph shall be deemed to be irrevocable and coupled with an
interest.
The undersigned hereby represents and warrants that it has full power and
authority to tender, exchange, assign and transfer the Original Notes; and that
when such Original Notes are accepted for exchange by the Company, the Company
will acquire good and marketable title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claims.
The undersigned further warrants that it will, upon request, execute and
deliver any additional documents deemed by the Exchange Agent or the Company to
be necessary or desirable to complete the exchange, assignment and transfer of
the Original Notes tendered for exchange hereby. The undersigned further agrees
that acceptance of any and all validly tendered Original Notes by the Company
and the issuance of Exchange Notes in exchange therefor shall constitute
performance in full by the Company of its obligations under the Registration
Rights Agreement.
By tendering, the undersigned hereby further represents to the Company that
(i) the Exchange Notes to be acquired by the undersigned in exchange for the
Original Notes tendered hereby and any Beneficial Owner(s) of such Original
Notes in connection with the Exchange Offer will be acquired by the undersigned
and such Beneficial Owner(s) in the ordinary course of their respective
businesses, (ii) the undersigned is not engaged in, and does not intend to
engage in, a distribution of the Exchange Notes, (iii) the undersigned and each
Beneficial Owner acknowledge and agree that any person who is a broker-dealer
registered under the Exchange Act or is participating in the Exchange Offer for
the purpose of distributing the Exchange Notes must comply with the
registration and prospectus delivery requirements of Section 10 of the
Securities Act in connection with a secondary resale transaction of the
Exchange Notes acquired by such person and cannot rely on the position of the
staff of the Securities and Commission (the "Commission") set forth in certain
no-action letters, (iv) the undersigned and each Beneficial Owner understand
that a secondary resale transaction described in clause (iii) above and any
resales of Exchange Notes obtained by the undersigned in exchange for the
Original Notes acquired by the undersigned directly from the Company should be
covered by an effective registration statement containing the selling security
holder information required by Item 507 or Item 508, as applicable, of
Regulation S-K of the Commission and (v) neither the undersigned nor any
Beneficial Owner is an "affiliate," as defined under Rule 405 under the
Securities Act, of the Company.
If the undersigned is a broker-dealer that will receive Exchange Notes for
its own account in exchange for Original Notes that were acquired as a result
of market-making activities or other trading activities, it acknowledges that
it will deliver a prospectus meeting the requirements of Section 10 of the
Securities Act in connection with any resale of such Exchange Notes; however,
by so acknowledging and by delivering such prospectus, the undersigned will not
be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. A broker-dealer may not participate in the Exchange Offer with
respect to the Original Notes acquired other than as a result of market-making
activities or other trading activities.
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For purposes of the Exchange Offer, the Company will be deemed to have
accepted for exchange, and to have exchanged, validly tendered Original Notes,
if, as and when the Company gives oral or written notice thereof to the
Exchange Agent. Tenders of Original Notes for exchange may be withdrawn at any
time prior to 5:00 p.m., New York City time, on the Expiration Date. See "The
Exchange Offer -- Withdrawal of Tenders" in the Prospectus. Any Original Notes
tendered by the undersigned and not accepted for exchange will be returned to
the undersigned at the address set forth above unless otherwise indicated in
the box above entitled "Special Delivery Instructions" as promptly as
practicable after the Expiration Date.
The undersigned acknowledges that the Company's acceptance of Original Notes
validly tendered for exchange pursuant to any one of the procedures described
in the section of the Prospectus entitled "The Exchange Offer" and in the
instructions hereto will constitute a binding agreement between the undersigned
and the Company upon the terms and subject to the conditions of the Exchange
Offer.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions," please return any Original Notes not tendered for exchange in
the name(s) of the undersigned. Similarly, unless otherwise indicated in the
box entitled "Special Delivery Instructions," please mail any certificates for
Original Notes not tendered or exchanged (and accompanying documents, as
appropriate) to the undersigned at the address shown below the undersigned's
signature(s). In the event that both "Special Issuance Instructions" and
"Special Delivery Instructions" are completed, please issue the certificates
representing the Exchange Notes issued in exchange for the Original Notes
accepted for exchange in the name(s) of, and return any Original Notes not
tendered for exchange or not exchanged to, the person(s) so indicated. The
undersigned recognizes that the Company has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Original Notes from the name of the Holder(s) thereof if the Company does
not accept for exchange any of the Original Notes so tendered for exchange or
if such transfer would not be in compliance with any transfer restrictions
applicable to such Original Note(s).
IN ORDER TO VALIDLY TENDER ORIGINAL NOTES FOR EXCHANGE, HOLDERS MUST
COMPLETE, EXECUTE, AND DELIVER THIS LETTER OF TRANSMITTAL.
Except as stated in the Prospectus, all authority herein conferred or agreed
to be conferred shall survive the death, incapacity or dissolution of the
undersigned, and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. Except as otherwise stated in the Prospectus, this tender for
exchange of Original Notes is irrevocable.
HOLDER(S) SIGN HERE TO TENDER YOUR ORIGINAL NOTES
(Please Complete Substitute Form W-9 in This Letter of Transmittal)
(right arrow)_________________________________________________________________
(right arrow)_________________________________________________________________
(Signature(s) of Holder(s))
Dated: ____________, 2004
(Must be signed by registered Holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Original Notes hereby tendered or on a security
position listing, or by any person(s) authorized to become the registered
Holder(s) by endorsements and documents transmitted herewith (including such
opinions of counsel, certificates and other information as may be required by
Scotts for the Original Notes to comply with any restrictions on transfer
applicable to the Original Notes). If signature is by an attorney-in-fact,
executor, administrator, trustee, guardian, officer of a corporation or
another acting in a fiduciary capacity or representative capacity, please
provide the following information. See Instruction 6.)
6
Name(s):______________________________________________________________________
______________________________________________________________________________
(Please Type or Print)
Capacity (full title):________________________________________________________
Address:______________________________________________________________________
______________________________________________________________________________
(Include Zip Code)
Principal place of business (if different from address listed above:__________
______________________________________________________________________________
Daytime Area Code and Telephone No.:__________________________________________
Taxpayer Identification or Social Security No.:_______________________________
(See Substitute Form W-9 Included Herein)
GUARANTEE OF SIGNATURE(S)
(Signature(s) Must Be Guaranteed If Required by Instruction 1)
Authorized Signature:_________________________________________________________
Name:_________________________________________________________________________
(Please Type or Print)
Title:________________________________________________________________________
Name of Firm:_________________________________________________________________
Address:______________________________________________________________________
_______________________________________________________________________
(Include Zip Code)
Area Code and Telephone No.:__________________________________________________
Dated: ______________, 2004
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Guarantee of Signatures. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by an institution
which is (1) a member of a registered national securities exchange or of the
National Association of Securities Dealers, Inc., (2) a commercial bank or
trust company having an office or correspondent in the United States, or (3) an
Eligible Institution that is a member of one of the following recognized
Signature Guarantee Programs:
(a) The Securities Transfer Agents Medallion Program (STAMP);
(b) The New York Stock Exchange Medallion Signature Program (MSP); or
(c) The Stock Exchange Medallion Program (SEMP).
Signatures on this Letter of Transmittal need not be guaranteed (i) if this
Letter of Transmittal is signed by the Holder(s) of the Original Notes tendered
herewith and such Holder(s) have not completed the box entitled "Special
Issuance Instructions" or the box entitled "Special Delivery Instructions" on
this Letter of Transmittal or (ii) if such Original Notes are tendered for the
account of an Eligible Institution. In all other cases, all signatures must be
guaranteed by an Eligible Institution.
2. Delivery of this Letter of Transmittal and Original Notes; Guaranteed
Delivery Procedures. This Letter of Transmittal is to be completed by Holders
if certificates representing Original Notes are to be forwarded herewith. All
physically delivered Original Notes, as well as a properly completed and duly
executed Letter of Transmittal (or manually signed facsimile thereof) and any
other required documents, must be received by the Exchange Agent at its address
set forth herein prior to the Expiration Date or the tendering holder must
comply with the guaranteed delivery procedures set forth below. Delivery of the
documents to DTC does not constitute delivery to the Exchange Agent.
The method of delivery of Original Notes, this Letter of Transmittal and all
other required documents to the Exchange Agent is at the election and risk of
the Holder. Except as otherwise provided below, the delivery will be deemed
made only when actually received or confirmed by the Exchange Agent. Instead of
delivery by mail, it is recommended that Holders use an overnight or hand
delivery service, properly insured. In all cases, sufficient time should be
allowed to assure delivery to the Exchange Agent before the Expiration Date.
Neither this Letter of Transmittal nor any Original Notes should be sent to the
Company. Holders may request their respective brokers, dealers, commercial
banks, trust companies or nominees to effect the above transactions for such
Holders.
Holders of Original Notes who elect to tender Original Notes and (i) whose
Original Notes are not immediately available or (ii) who cannot deliver the
Original Notes, this Letter of Transmittal or other required documents to the
Exchange Agent prior the Expiration Date must tender their Original Notes
according to the guaranteed delivery procedures set forth in the Prospectus.
Holders may have such tender effected if:
(a) such tender is made through an Eligible Institution;
(b) prior to 5:00 p.m., New York City time, on the Expiration Date, the
Exchange Agent has received from such Eligible Institution a properly
completed and duly executed Notice of Guaranteed Delivery, setting forth the
name and address of the Holder, the certificate number(s) of such Original
Notes and the principal amount of Original Notes tendered for exchange,
stating that tender is being made thereby and guaranteeing that, within
three New York Stock Exchange trading days after the Expiration Date, this
Letter of Transmittal (or facsimile thereof), together with the
certificate(s) representing such Original Notes (or a Book-Entry
Confirmation), in proper form for transfer, and any other documents required
by this Letter of Transmittal, will be deposited by such Eligible
Institution with the Exchange Agent; and
8
(c) a properly executed Letter of Transmittal (or facsimile thereof), as
well as the certificate(s) for all tendered Original Notes in proper form
for transfer or a Book-Entry Confirmation, together with any other documents
required by this Letter of Transmittal, are received by the Exchange Agent
within five New York Stock Exchange trading days after the Expiration Date.
No alternative, conditional or contingent tenders will be accepted. All
tendering Holders, by execution of this Letter of Transmittal (or facsimile
thereof), waive any right to receive notice of the acceptance of their Original
Notes for exchange.
3. Inadequate Space. If the space provided in the box entitled "Description
of Original Notes" above is inadequate, the certificate numbers and principal
amounts of Original Notes being tendered should be listed on a separate signed
schedule affixed hereto.
4. Withdrawals. A tender of Original Notes may be withdrawn at any time
prior to the Expiration Date by delivery of written notice of withdrawal (or
facsimile thereof) to the Exchange Agent at the address set forth on the cover
of this Letter of Transmittal. To be effective, a notice of withdrawal of
Original Notes must (i) specify the name of the person who tendered the
Original Notes to be withdrawn (the "Depositor"), (ii) identify the Original
Notes to be withdrawn (including the certificate number(s) and the aggregate
principal amount of Original Notes to be withdrawn), and (iii) be signed by the
Holder in the same manner as the original signature on the Letter of
Transmittal by which such Original Notes were tendered (including any required
signature guarantees). All questions as to the validity, form and eligibility
(including time of receipt) of such notices will be determined by the Company
in its sole discretion, whose determination shall be final and binding on all
parties. Any Original Notes so withdrawn will thereafter be deemed not validly
tendered for purposes of the Exchange Offer and no Exchange Notes will be
issued with respect thereto unless the Original Notes so withdrawn are validly
retendered. Properly withdrawn Original Notes may be retendered by following
one of the procedures described in the section of the Prospectus entitled "The
Exchange Offer -- Procedures for Tendering" at any time prior to the Expiration
Date.
5. Partial Tenders. Tenders of Original Notes will be accepted only in
integral multiples of $1,000 principal amount. If a tender for exchange is to
be made with respect to less than the entire principal amount of any Original
Notes, fill in the principal amount of Original Notes which are tendered for
exchange in column (4) of the box entitled "Description of Original Notes," as
more fully described in the footnotes thereto. In the case of a partial tender
for exchange, a new certificate, in fully registered form, for the remainder of
the principal amount of the Original Notes, will be sent to the Holders unless
otherwise indicated in the appropriate box on this Letter of Transmittal as
promptly as practicable after the expiration or termination of the Exchange
Offer.
6. Signatures on this Letter of Transmittal, Powers of Attorney and
Endorsements.
(a) The signature(s) of the Holder on this Letter of Transmittal must
correspond with the name(s) as written on the face of the Original Notes
without alternation, enlargement or any change whatsoever.
(b) If tendered Original Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
(c) If any tendered Original 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 of Transmittal and any necessary or
required documents as there are different registrations or certificates.
(d) When this Letter of Transmittal is signed by the Holder listed and
transmitted hereby, no endorsements of Original Notes or bond powers are
required. If, however, Original Notes not tendered or not accepted, are to
be issued or returned in the name of a person other than the Holder, then
the Original Notes transmitted hereby must be endorsed or accompanied by a
properly completed bond power, in a form satisfactory to the Company, in
either case signed exactly as the name(s) of the Holder(s) appear(s) on the
Original Notes. Signatures on such Original Notes or bond powers must be
guaranteed by an Eligible Institution (unless signed by an Eligible
Institution).
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(e) If this Letter of Transmittal or Original Notes or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and unless waived by
the Company, evidence satisfactory to the Company of their authority to so
act must be submitted with this Letter of Transmittal.
(f) If this Letter of Transmittal is signed by a person other than the
Holder listed, the Original Notes must be endorsed or accompanied by a
properly completed bond power, in either case signed by such Holder exactly
as the name(s) of the Holder appear(s) on the certificates. Signatures on
such Original Notes or bond powers 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 all transfer taxes, if any, applicable to the exchange of Original
Notes pursuant to the Exchange Offer. If, however, a transfer tax is imposed
for any reason other than the exchange of Original Notes pursuant to the
Exchange Offer, then the amount of such transfer taxes (whether imposed on the
Holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemptions therefrom is not
submitted with this Letter of Transmittal, the amount of such transfer taxes
will be billed directly to such tendering holder.
8. Special Issuance and Delivery Instructions. If the Exchange Notes are to
be issued, or if any Original Notes not tendered for exchange are to be issued
or sent to someone other than the Holder or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
Holders of Original Notes tendering Original Notes by book-entry transfer may
request that Original Notes not accepted be credited to such account maintained
at DTC as such Holder may designate.
9. Irregularities. All questions as to the validity, form, eligibility
(including time of receipt), compliance with conditions, acceptance and
withdrawal of tendered Original Notes will be determined by the Company in its
sole discretion, which determination shall be final and binding. The Company
reserves the absolute right to reject any and all Original Notes not properly
tendered or any Original Notes the Company's acceptance of which would, in the
opinion of counsel for the Company, be unlawful. The Company also reserves the
right to waive any defects, irregularities or conditions of tender as to
particular Original Notes. The Company's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in the Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of Original Notes must be
cured within such time as the Company shall determine. Although the Company
intends to notify Holders of defects or irregularities with respect to tenders
of Original Notes, neither the Company, the Exchange Agent nor any other person
shall incur any liability for failure to give such notification. Tenders of
Original Notes will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Original Notes received by the
Exchange Agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the Exchange
Agent to the tendering holders, unless otherwise provided in this Letter of
Transmittal, as soon as practicable following the Expiration Date.
10. Waiver of Conditions. The Company reserves the absolute right to waive,
amend or modify certain of the specified conditions as described under "The
Exchange Offer -- Conditions" in the Prospectus in the case of any Original
Notes tendered (except as otherwise provided in the Prospectus).
11. Mutilated, Lost, Stolen or Destroyed Original Notes. Any tendering
Holder whose Original Notes have been mutilated, lost, stolen or destroyed,
should contact the Exchange Agent at the address indicated herein for further
instructions.
12. Requests for Information or Additional Copies. Requests for information
or for additional copies of the Prospectus and this Letter of Transmittal may
be directed to the Exchange Agent at the address or telephone number set forth
on the cover of this Letter of Transmittal.
10
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE THEREOF) TOGETHER WITH
CERTIFICATES, OR CONFIRMATION OF BOOK-ENTRY OR THE NOTICE OF GUARANTEED
DELIVERY, AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE
AGENT PRIOR THE EXPIRATION DATE.
IMPORTANT INFORMATION
Under current federal income tax law, a Holder whose tendered Original Notes
are accepted for exchange may be subject to backup withholding unless the
Holder provides the Company (as payor), through the Exchange Agent, with either
(i) such Holder's correct taxpayer identification number ("TIN") on Substitute
Form W-9 attached hereto, certifying that the TIN provided on Substitute Form
W-9 is correct (or that such Holder is awaiting a TIN) and that (A) the Holder
has not been notified by the Internal Revenue Service that he or she is subject
to backup withholding as a result of a failure to report all interest or
dividends or (B) the Internal Revenue Service has notified the Holder that he
or she is no longer subject to backup withholding; or (ii) an adequate basis
for exemption from backup withholding. If such Holder is an individual, the TIN
is such Holder's social security number. If the Exchange Agent is not provided
with the correct taxpayer identification number, the Holder may be subject to
certain penalties imposed by the Internal Revenue Service.
Certain Holders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. Exempt Holders should indicate their exempt status on Substitute
Form W-9. A foreign individual may qualify as an exempt recipient by submitting
to the Exchange Agent a properly completed Internal Revenue Service Form W-8
(which the Exchange Agent will provide upon request) signed under penalty of
perjury, attesting to the Holder's exempt status. See the enclosed Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 (the
"Guidelines") for additional instructions.
If backup withholding applies, the Company is required to withhold a portion
of any payment made to the Holder or other payee. Backup withholding is not an
additional federal income tax. Rather, the federal income tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the record owner of the
Original Notes. If the Original Notes are held in more than one name or are not
held in the name of the actual owner, consult the enclosed Guidelines for
additional guidance regarding which number to report.
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PAYER'S NAME:[insert payer's name]
- ----------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE Part 1--PLEASE PROVIDE YOUR NAME AND TIN IN THE
BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING _________________________
FORM W-9 BELOW. Name
Department of the Treasury _________________________
Internal Revenue Service Social Security Number
OR
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Payer's Request for Part 2 _________________________
Taxpayer Certification--Under penalty of perjury, I Employer Identification Number
Identification certify that:
Number (TIN) (1)The number shown on this form is my correct ______________________________
Taxpayer Identification Number (or I am Part 3--
waiting for a number to be issued to me), and
(2)I am not subject to backup withholding because [_] Awaiting TIN
(a) I am exempt from backup withholding, or
(b) I have not been notified by the Internal
Revenue Service (the "IRS") that I am subject
to backup withholding as a result of a failure
to report all interest or dividends, or (c)
the IRS has notified me that I am no longer
subject to backup withholding, and
(3)I am a U.S. person (including a U.S. resident
alien).
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CERTIFICATE INSTRUCTIONS--You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding because
of under-reporting interest or dividends on your tax return. However, if after
being notified by the IRS that you were subject to backup withholding you
received another notification from the IRS that you are no longer subject to
backup withholding, do not cross out such item (2).
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The Internal Revenue Service does not require your consent to any provision of
this document other than the certifications required to avoid backup withholding.
(R) SIGNATURE_________________________________________________________________ DATE __
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF UP TO 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office, or
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, up to 28% of all reportable payments made to me will be
withheld.
Signature ____________________________ Date ____________________________, 20__
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