LETTER OF TRANSMITTAL
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON __________
__, 1998, UNLESS EXTENDED (THE "EXPIRATION DATE").
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XXXXXX RESPIRATORY CARE INC.
LETTER OF TRANSMITTAL
9 1/8% SENIOR SUBORDINATED NOTES DUE 2008
To: U.S. Trust Company of New York, The Exchange Agent
By Registered or Certified Mail: By Overnight Courier and By Hand after 4:30 p.m.:
United States Trust Company of New York United States Trust Company of New York
P.O. Box 843 Xxxxxx Station 000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services
By Hand before 4:30 p.m.: By Xxxxxxxxx:
United States Trust Company of New York (000) 000-0000
111 Broadway Attention: Customer Service
New York, New York 10006
Attention: Lower Level Confirm by telephone:
Corporate Trust Window (000) 000-0000
Delivery of this instrument to an address other than as set forth
above or transmission of instructions via a facsimile number other than the one
listed above will not constitute a valid delivery. The instructions
accompanying this Letter of Transmittal should be read carefully before this
Letter of Transmittal is completed.
The undersigned acknowledges that he or she has received the
Prospectus dated June __, 1998, (the "Prospectus") of Xxxxxx Respiratory Care
Inc. (the "Company") and this Letter of Transmittal (the "Letter of
Transmittal"), which together constitute the Company's offer (the "Exchange
Offer") to exchange $1,000 principal amount of its 9 1/8% Senior Subordinated
Notes due 2008 (the "Exchange Notes") which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement of which the Prospectus is a part, for each $1,000
principal amount of its outstanding 9 1/8% Senior Subordinated Notes due 2008
(the "Notes"), of which $115,000,000 principal amount is outstanding. Other
capitalized terms used but not defined herein have the meaning given to them in
the Prospectus.
The Letter of Transmittal is to be used by Holders of Notes (i) if
certificates representing the Notes are to be physically delivered herewith; or
(ii) if tender of Notes is to be made by book-entry transfer to the Exchange
Agent's account at The Depository Trust Company ("DTC"), pursuant to the
procedures set forth in the Prospectus under "The Exchange Offer - Procedures
for Tendering" by any financial institution that is a participant in DTC and
whose name appears on a security position listing as the owner of Notes; or
(iii) if tender of Notes is to be made according to the guaranteed delivery
procedures set forth in the Prospectus under "The Exchange Offer - Guaranteed
Delivery Procedures." Delivery of documents to DTC does not constitute delivery
to the Exchange Agent.
The term "Holder" with respect to the Exchange Offer means any person
(i) in whose name Notes are registered on the books of the Company or any other
person who has obtained a properly completed bond power from the registered
holder; or (ii) whose Notes are held of record by DTC who desires to deliver
such Notes by book-entry transfer at DTC. The undersigned has completed,
executed and delivered this Letter of Transmittal to indicate the action the
undersigned desires to take with respect to the Exchange Offer. Holders who
wish to tender their Notes must complete this letter in its entirety.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE CHECKING ANY BOX BELOW
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DESCRIPTION OF 9 1/8% SENIOR SUBORDINATED NOTES DUE 2008 ("NOTES"):
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NAME(S) AND ADDRESS(ES) OF AGGREGATE PRINCIPAL AMOUNT PRINCIPAL AMOUNT TENDERED
REGISTERED HOLDER(S) REPRESENTED BY CERTIFICATE(S) (MUST BE IN INTEGRAL MULTIPLE OF
(PLEASE FILL IN, IF BLANK) $1,000)*
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Total
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* Unless indicated in the column labeled "Principal Amount Tendered," any tendering Holder of
Notes will be deemed to have tendered the entire aggregate principal amount represented by the
column labeled "Aggregate Principal Amount Represented by Certificate(s)."
If the space provided above is inadequate, list the principal amounts on a separate signed
schedule and affix the list to this Letter of Transmittal.
The minimum permitted tender is $1,000 in principal amount of Notes. All other tenders must be
in integral multiples of $1,000.
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SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6) (SEE EXCHANGE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if certificates for Notes in a To be completed ONLY if certificates for Notes in
principal amount not tendered or not accepted for a principal amount not tendered or not accepted for
exchange, or Exchange Notes issued in exchange for exchange, or Exchange Notes issued in exchange for
Notes accepted for exchange, are to be issued in the Notes accepted for exchange, are to be sent to
name of someone other than the undersigned, or if someone other than the undersigned, or to the
the Notes tendered by book-entry transfer that are not undersigned at an address other than that shown
accepted for exchange are to be credited to an above.
account maintained by DTC.
ISSUE CERTIFICATE(S) TO: MAIL TO:
Name_____________________________________ Nme____________________________________________
(Please Print) (Please Print)
Address___________________________________ Address________________________________________
__________________________________________ _______________________________________________
(Include Zip Code) (Include Zip Code)
__________________________________________ _______________________________________________
(Tax Identification or Social Security No.) (Tax Identification or Social Security No.)
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[_] CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED BY DTC TO THE EXCHANGE AGENT'S ACCOUNT AT DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution: _____________________________________________________________________
DTC Book-Entry Account No. _____________________________________________________________________
Transaction Code No. _____________________________________________________________________
[_] CHECK HERE IF YOU ARE A BROKER-DEALER.
Name: _____________________________________________________________________
Address: _____________________________________________________________________
_____________________________________________________________________
[_] 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.
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND ANY OF THE NOTES YOU ARE TENDERING WERE ACQUIRED DIRECTLY
FROM THE COMPANY.
Principal Amount of Tendered Notes Acquired from the Company: $ ___________________________________
2
LADIES AND GENTLEMEN:
Subject to the terms and conditions of the Exchange Offer, the undersigned
hereby tenders to the Company the principal amount of Notes indicated above.
Subject to and effective upon the acceptance for exchange of the principal
amount of Notes tendered in accordance with this Letter of Transmittal, the
undersigned sells, assigns and transfers to, or upon the order of, the Company
all right, title and interest in and to the Notes tendered hereby. The
undersigned hereby irrevocably constitutes and appoints the Exchange Agent its
agent and attorney-in-fact (with full knowledge that the Exchange Agent also
acts as the agent of the Company) with respect to the tendered Notes with full
power of substitution to (i) deliver certificates for such Notes to the Company,
or transfer ownership of such Notes on the account books maintained by DTC, and
deliver all accompanying evidences of transfer and authenticity to, or upon the
order of, the Company; and (ii) present such Notes for transfer on the books of
the Company and receive all benefits and otherwise exercise all rights of
beneficial ownership of such Notes, all in accordance with the terms of the
Exchange Offer. The power of attorney granted in this paragraph shall be deemed
irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that he or she has full
power and authority to tender, sell, assign and transfer the Notes tendered
hereby and that the Company 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 acquired by the Company. THE
UNDERSIGNED HEREBY FURTHER REPRESENTS THAT ANY EXCHANGE NOTES ACQUIRED IN
EXCHANGE FOR NOTES TENDERED HEREBY WILL HAVE BEEN ACQUIRED IN THE ORDINARY
COURSE OF BUSINESS OF THE HOLDER RECEIVING SUCH EXCHANGE NOTES, WHETHER OR NOT
THE UNDERSIGNED, THAT NEITHER THE HOLDER NOR ANY SUCH OTHER PERSON HAS AN
ARRANGEMENT WITH ANY PERSON TO PARTICIPATE IN THE DISTRIBUTION OF SUCH EXCHANGE
NOTES AND THAT NEITHER THE HOLDER NOR ANY SUCH OTHER PERSON IS AN "AFFILIATE,"
AS DEFINED UNDER RULE 405 OF THE SECURITIES ACT, OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES. If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes. If the undersigned is a broker-dealer that will
receive Exchange Notes, it represents that, except to the extent indicated at
the bottom of the preceding page, the Notes to be exchanged for Exchange Notes
were acquired as a result of market-making activities or other trading
activities and not acquired directly from the Company, and it acknowledges that
it will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. IF THE UNDERSIGNED IS A BROKER-DEALER, IT
ACKNOWLEDGES THAT IT MAY NOT USE THE PROSPECTUS IN CONNECTION WITH RESALES OF
EXCHANGE NOTES RECEIVED IN EXCHANGE FOR NOTES THAT WERE ACQUIRED DIRECTLY FROM
THE COMPANY. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Exchange Agent or the Company to be necessary
or desirable to complete the assignment, transfer and purchase of the Notes
tendered hereby.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted validly tendered Notes when, as and if the Company has given oral or
written notice thereof to the Exchange Agent.
If any tendered Notes are not accepted for exchange pursuant to the
Exchange Offer for any reason, certificates for any such unaccepted Notes will
be returned (except as noted below with respect to tenders through DTC), without
expense, to the undersigned at the address shown below or at a different address
as may be indicated herein under "Special Payment Instructions" as promptly as
practicable after the Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representatives, successors and assigns.
The undersigned understands that tenders of Notes pursuant to the
procedures described under the caption "The Exchange Offer - Procedures for
Tendering" in the Prospectus 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 under "Special Payment Instructions," please
issue the certificates representing the Exchange Notes issued in exchange for
the Notes accepted for exchange and return any Notes not tendered or not
exchanged, in the name(s) of the undersigned (or in either such event in the
case of Notes tendered by DTC, by credit to the undersigned's account at DTC).
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please send the certificates representing the Exchange Notes issued in exchange
for the Notes accepted for exchange and any certificates for Notes not tendered
or not exchanged (and accompanying documents, as appropriate) to the undersigned
at the address shown below the undersigned's signature(s), unless, in either
event, tender is being made through DTC. In the event that both "Special
Payment Instructions" and "Special Delivery Instructions" are completed, please
issue the certificates representing the Exchange Notes issued in exchange for
the Notes accepted for exchange and return any Notes not tendered or not
exchanged in the name(s) of, and send said certificates to, the person(s) so
indicated. The undersigned
3
recognizes that the Company has no obligation pursuant to the "Special Payment
Instructions" and "Special Delivery Instructions" to transfer any Notes from the
name of the registered holder(s) thereof if the Company does not accept for
exchange any of the Notes so tendered.
Holders of Notes who wish to tender their Notes and (i) whose Notes are not
immediately available, or (ii) who cannot deliver their Notes, this Letter of
Transmittal or any other documents required hereby to the Exchange Agent, or
cannot complete the procedure for book-entry transfer, prior to the Expiration
Date, may tender their Notes according to the guaranteed delivery procedures set
forth in the Prospectus under the caption "The Exchange Offer - Guaranteed
Delivery Procedures". See Instruction 1 regarding the completion of the Letter
of Transmittal printed below.
PLEASE SIGN HERE WHETHER OR NOT
NOTES ARE BEING PHYSICALLY TENDERED HEREBY
X
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Date
X
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Signature(s) of Registered Holder(s) Date
or Authorized Signatory
Area Code and Telephone Number:____________________________
The above lines must be signed by the registered holder(s) of Notes as
their name(s) appear(s) on the Notes or, if the Notes are tendered by a
participant in DTC, as such participant's name appears on a security position
listing as the owner of the Notes, or by person(s) authorized to become
registered holder(s) by a properly completed bond power from the registered
holder(s), a copy of which must be transmitted with this Letter of Transmittal.
If Notes to which this Letter of Transmittal relates are held of record by two
or more joint holders, then all such holders must sign this Letter of
Transmittal. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, such person must (i) set forth his or her full title
below and (ii) unless waived by the Company, submit evidence satisfactory to the
Company of such person's authority so to act. See Instruction 4 regarding the
completion of this Letter of Transmittal printed below.
Names(s): __________________________________________________________________
__________________________________________________________________
(Please Print)
Capacity: __________________________________________________________________
Address: __________________________________________________________________
__________________________________________________________________
(Include Zip Code)
Signature(s) Guaranteed by an Eligible Institution:
(If required by Instruction 4)
__________________________________________________________________
(Authorized Signature)
__________________________________________________________________
(Name of Firm)
Dated:______________________, 1998
4
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND NOTES. The tendered Notes
(or a confirmation of a book-entry transfer into the Exchange Agent's account at
DTC of all Notes delivered electronically), as well as a properly completed and
duly executed copy of this Letter of Transmittal or facsimile hereof and any
other documents required by this Letter of Transmittal, must be received by the
Exchange Agent at its address set forth herein prior to 5:00 P.M., New York City
time, on the Expiration Date. The method of delivery of the tendered Notes,
this Letter of Transmittal and all other required documents to the Exchange
Agent is at the election and risk of the Holder and, except as otherwise
provided below, the delivery will be deemed made only when actually received by
the Exchange Agent. Instead of delivery by mail, it is recommended that the
Holder use an overnight or hand delivery service. In all cases, sufficient time
should be allowed to assure timely delivery. No Letter of Transmittal or Notes
should be sent to the Company.
Holders who wish to tender their Notes and (i) whose Notes are not
immediately available; or (ii) who cannot deliver their Notes, this Letter of
Transmittal or any other documents required hereby to the Exchange Agent, or
cannot complete the procedure for book-entry transfer, prior to 5:00 P.M., New
York City time, on the Expiration Date must tender their Notes according to the
guaranteed delivery procedures set forth in the Prospectus. Pursuant to such
procedures: (i) such tender must be made by or through a member firm of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an office
or correspondent in the United States or an institution which falls within the
definition of "Eligible Guarantor Institution" contained in Regulation 17Ad-15
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, which 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) (each, an
"Eligible Institution"); (ii) prior to the Expiration Date, the Exchange Agent
must have received from the Eligible Institution a properly completed and duly
executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the Holder of the Notes and the
principal amount of Notes tendered, stating that the 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 hereof)
together with the certificate(s) representing the Notes (or a confirmation of
electronic delivery of book-entry delivery into the Exchange Agent's account at
DTC) and any other required documents will be deposited by the Eligible
Institution with the Exchange Agent; and (iii) such properly completed and
executed Letter of Transmittal (or facsimile hereof), as well as all other
documents required by this Letter of Transmittal and the certificate(s)
representing all tendered Notes in proper form for transfer (or a confirmation
of electronic delivery of book-entry delivery into the Exchange Agent's account
at DTC), must be received by the Exchange Agent within three New York Stock
Exchange trading days after the Expiration Date, all as provided in the
Prospectus under the caption "Exchange Offer - Guaranteed Delivery Procedures."
Any Holder of Notes who wishes to tender his or her Notes pursuant to the
guaranteed delivery procedures described above must ensure that the Exchange
Agent receives the Notice of Guaranteed Delivery prior to 5:00 P.M., New York
City time, on the Expiration Date. Upon request of the Exchange Agent, a Notice
of Guaranteed Delivery will be sent to Holders who wish to tender their Notes
according to the guaranteed delivery procedures set forth above.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of tendered Notes and withdrawal of tendered Notes will
be determined by the Company in its sole discretion, which determination will be
final and binding. The Company reserves the absolute right to reject any and
all Notes not properly tendered or any 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 or irregularities or conditions of
tender as to the Exchange Offer and/or particular Notes. The Company's
interpretation of the terms and conditions of the Exchange Offer (including the
instructions in this Letter of Transmittal) shall be final and binding on all
parties. Unless waived, any defects or irregularities in connection with
tenders of Notes must be cured within such time as the Company shall determine.
Neither the Company, the Exchange Agent nor any other person shall be under any
duty to give notification of defects or irregularities with respect to tenders
of Notes, nor shall any of them incur any liability for failure to give such
notification. Tenders of Notes will not be deemed to have been made until such
defects or irregularities have been cured or waived. Any 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 of Notes, unless otherwise provided in this
Letter of Transmittal, as soon as practicable following the Expiration Date.
5
2. TENDER BY XXXXXX. Only a Holder of Notes may tender such Notes in the
Exchange Offer. Any beneficial holder of Notes who is not the registered holder
and who wishes to tender should arrange with the registered holder to execute
and deliver this Letter of Transmittal on his or her behalf or must, prior to
completing and executing this Letter of Transmittal and delivering his or her
Notes, either make appropriate arrangements to register ownership of the Notes
in such Xxxxxx's name or obtain a properly completed bond power from the
registered holder.
3. PARTIAL TENDERS. Tenders of Notes will be accepted only in integral
multiples of $1,000. If less than the entire principal amount of any Notes is
tendered, the tendering Holder should fill in the principal amount tendered in
the third column of the box entitled "Description of 9 1/8% Senior Subordinated
Notes due 2008 ("Notes")" above. The entire principal amount of Notes delivered
to the Exchange Agent will be deemed to have been tendered unless otherwise
indicated. If the entire principal amount of all Notes is not tendered, then
Notes for the principal amount of Notes not tendered and a certificate or
certificates representing Exchange Notes issued in exchange for any Notes
accepted will be sent to the Holder at his or her registered address, unless a
different address is provided in the appropriate box on this Letter of
Transmittal, promptly after the Notes are accepted for exchange.
4. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES. If this Letter of Transmittal (or facsimile hereof) is
signed by the record Holder(s) of the Notes tendered hereby, the signature must
correspond with the name(s) as written on the face of the Notes or, if the Notes
are tendered by a participant in DTC, as such participant's name appears on a
security position listing as the owner of the Notes, without alteration,
enlargement or any change whatsoever.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder or Holders of Notes tendered and the certificate or
certificates for Exchange Notes issued in exchange therefor are to be issued (or
any untendered principal amount of Notes is to be reissued) to the registered
Holder, the said Holder need not and should not endorse any tendered Notes, nor
provide a separate bond power. In any other case, such Holder must either
properly endorse the Notes tendered or transmit a properly completed separate
bond power with this Letter of Transmittal, with the signatures on the
endorsement or bond power guaranteed by an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a person
other than the registered Holder or Holders of any Notes listed, such Notes must
be endorsed or accompanied by appropriate bond powers signed as the name of the
registered Holder or Holders appears on the Notes.
If this Letter of Transmittal (or facsimile hereof) or any Notes or bond
powers are signed by trustees, executors, administrators, guardians, attorneys-
in-fact or 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 so to act must be submitted with this Letter of Transmittal.
Endorsements on Notes or signatures on bond powers required by this
Instruction 4 must be guaranteed by an Eligible Institution.
Except as otherwise provided below, all signatures on this Letter of
Transmittal (or facsimile hereof) must be guaranteed by an Eligible Institution.
Signatures on this Letter of Transmittal need not be guaranteed if (i) this
Letter of Transmittal is signed by the registered Holder(s) of the Notes
tendered herewith and such Holder(s) have not completed the box set forth herein
entitled "Special Payment Instructions" or the box entitled "Special Delivery
Instructions;" or (ii) such Notes are tendered for the account of an Eligible
Institution.
5. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. Tendering Holders should
indicate, in the applicable box or boxes, the name and address to which Exchange
Notes or substitute Notes for principal amounts not tendered or not accepted for
exchange are to be issued or sent, if different from the name and address of the
person signing this Letter of Transmittal (or in the case of tender of Notes
through DTC, if different from DTC). In the case of issuance in a different
name, the taxpayer identification or social security number of the person named
must also be indicated.
6. TAX IDENTIFICATION NUMBER. Federal income tax law requires that a
Holder whose offered Notes are accepted for exchange must provide the Company
(as payor) with his, her or its correct Taxpayer Identification Number ("TIN"),
which, in the case of an exchanging Holder who is an individual, is his or her
social security number. If the Company is not provided with the correct TIN or
an adequate basis for exemption, such Holder may be subject to a $50 penalty
imposed by the Internal Revenue Service (the "IRS"). In addition, delivery to
such Holder of Exchange Notes
6
may be subject to backup withholding in an amount equal to 31% of the gross
proceeds resulting from the Exchange Offer. If withholding results in an
overpayment of taxes, a refund may be obtained from the IRS by the Holder.
Exempt Holders (including, among others, all corporations and certain foreign
individuals) are not subject to these backup withholding and reporting
requirements. See instructions to the enclosed Form W-9.
To prevent backup withholding, each exchanging Holder must provide his, her
or its correct TIN by completing the Form W-9 enclosed herewith, certifying that
the TIN provided is correct (or that such Holder is awaiting a TIN) and that (i)
the Holder is exempt from backup withholding; (ii) the Holder has not been
notified by the IRS that he, she or it is subject to backup withholding as a
result of a failure to report all interest or dividends; or (iii) the IRS has
notified the Holder that he, she or it is no longer subject to backup
withholding. In order to satisfy the Exchange Agent that a foreign individual
qualifies as an exempt recipient, such Xxxxxx must submit a statement signed
under penalty of perjury attesting to such exempt status. Such statements may
be obtained from the Exchange Agent. If the Notes are in more than one name or
are not in the name of the actual owner, consult the Form W-9 for information on
which TIN to report. If you do not provide your TIN to the Company within 60
days, backup withholding will begin and continue until you furnish your TIN to
the Company.
7. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Notes pursuant to the Exchange Offer. If,
however, certificates representing Exchange Notes or Notes for principal amounts
not tendered or accepted for exchange are to be delivered to, or are to be
registered or issued in the name of, any person other than the registered Holder
of the Notes tendered hereby, or if tendered Notes are registered in the name of
any person other than the person signing this Letter of Transmittal, or if a
transfer tax is imposed for any reason other than the exchange of Notes pursuant
to the Exchange Offer, then the amount of any such transfer taxes (whether
imposed on the registered Holder or on any other persons) will be payable by the
tendering Holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with this Letter of Transmittal, the amount
of such transfer taxes will be billed directly to such tendering Holder.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Notes listed in this Letter of
Transmittal.
8. WAIVER OF CONDITIONS. The Company reserves the absolute right to
amend, waive or modify specified conditions in the Exchange Offer in the case of
any Notes tendered.
9. XXXXXXXXX, LOST, STOLEN OR DESTROYED NOTES. Any tendering Holder
whose Notes have been mutilated, lost, stolen or destroyed should contact the
Exchange Agent at the address indicated herein for further instructions.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance and requests for additional copies of the Prospectus or this
Letter of Transmittal may be directed to the Exchange Agent at the address
specified in the Prospectus. Holders may also contact their broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Exchange Offer.
(DO NOT WRITE IN SPACE BELOW)
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CERTIFICATE NOTES NOTES
SURRENDERED TENDERED ACCEPTED
---------------------------------------------
---------------------------------------------
---------------------------------------------
Delivery Prepared by___________________ Checked By_____________ Date____________
7
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Name (If joint names, see attached guidelines)
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Business name (Sole proprietors, see attached guidelines)
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Please check appropriate box: [_] Individual/Sole Proprietor [_] Corporation [_] Partnership [_] Other
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Address (number, street, and apt. or suite no.)
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City, state, and ZIP code
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SUBSTITUTE PART I -- TAXPAYER IDENTIFICATION PART II -- FOR PAYEES
NO. EXEMPT FROM BACKUP
WITHHOLDING
Form W-9 Enter your taxpayer (SEE ENCLOSED
Department of the Treasury identification number in the GUIDELINES)
Internal Revenue Service appropriate box. For most
individuals, this is your social ------------------------
security number. If you do not Social Security Number
Payer's Request for Taxpayer have a number, see How to
Identification Number (TIN) Obtain a "TIN" in the enclosed
Guidelines.
Note: If the account is more ------------------------
than one name, see the chart in Employer Identification
enclosed Guidelines to Number
determine what number to give.
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PART III -- CERTIFICATION -- Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be
issued to me), and
(2) I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been
notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup
withholding.
Certification Instructions. -- You must cross out item (2) above if you have been notified by the IRS that you are 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 are subject to backup withholding, you received another notification from the IRS that you
are no longer subject to backup withholding, do not cross out item (2).
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SIGNATURE__________________________________________________ DATE________________________, 1998
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NOTE: FAILURE TO COMPLETE THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF
ANY PAYMENTS MADE TO YOU. PLEASE REVIEW ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
8
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
WHAT IS BACKUP WITHHOLDING? -- Persons making certain payments to you are
required to withhold and pay to IRS 31% of such payments under certain
conditions. This is called "backup withholding." Payments that could be subject
to backup withholding include interest, dividends, broker and barter exchange
transactions, rents, royalties, nonemployee compensation, and certain payments
from fishing boat operators, but do not include real estate transactions.
If you give the requester your correct TIN, make the appropriate
certifications, and report all your taxable interest and dividends on your tax
return, your payments will not be subject to backup withholding. Payments you
receive will be subject to backup withholding if:
(1) You do not furnish your TIN to the requester, or
(2) IRS notifies the requester that you furnished an incorrect TIN, or
(3) You are notified by IRS that you are subject to backup withholding because
you failed to report all your interest and dividends on your tax return (for
interest and dividend accounts only), or
(4) You fail to certify to the requester that you are not subject to backup
withholding under (3) above (for interest and dividend accounts opened after
1983 only), or
(5) You fail to certify your TIN. This applies only to interest, dividend,
broker or barter exchange accounts opened after 1983, or broker accounts
considered inactive in 1983.
For other payments, you are subject to backup withholding only if (1) or (2)
above applies.
Certain Payees and payments are exempt from backup withholding and information
reporting. See payees and Payments Exempt From Backup Withholding, below, and
Exempt Payees and Payments under Specific Instructions below if you are an
exempt payee.
PAYEES AND PAYMENTS EXEMPT FROM BACKUP WITHHOLDING. -- The following is a list
of payees exempt from backup withholding and for which no information reporting
is required. For interest and dividends, all listed payees are exempt except
item (9). For broker transactions, payees listed in (1) through (13), and a
person registered under the Investment Advisers Act of 1940 who regularly acts
as a broker are exempt. Payments subject to reporting under sections 6041 and
6041A are generally exempt from backup withholding only if made to payees
described in items (1) through (7), except that a corporation that provides
medical and health care services or bills and collects payments for such
services is not exempt from backup withholding or information reporting. Only
payees described in items (2) through (6) are exempt from backup withholding for
barter exchange transactions, patronage dividends, and payments by certain
fishing boat operators.
11. A corporation.
12. An organization exempt from tax under section 501(a), or an individual
retirement plan (IRA), or a custodial account under 403(b)(7).
13. The United States or any of its agencies or instrumentalities.
14. A state, the District of Columbia, a possession of the United States, or
any of their political subdivisions or instrumentalities.
15. A foreign government or any of its political subdivisions, agencies or
instrumentalities.
16. An international organization or any of its agencies or
instrumentalities.
17. A foreign central bank of issue.
18. A dealer in securities or commodities required to register in the U.S. or
a possession of the U.S.
19. A futures commission merchant registered with the Commodity Futures
Trading Commission.
20. A real estate investment trust.
21. An entity registered at all times during the tax year under the
Investment Company Act of 1940.
22. A common trust fund operated by a bank under section 584(a).
23. A financial institution.
24. A middleman known in the investment community as a nominee or listed in
the most recent publication of the American Society of Corporate Securities,
Inc., Nominee List.
25. A trust exempt from tax under section 664 or described in section 4947.
Payments of dividends and patronage dividends generally not subject to backup
withholding also include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S. and
that have at least one nonresident partner.
Payments of interest generally not subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals.
NOTE: You may be subject to backup withholding if this interest is $600 or more
and is paid in the course of the payer's trade or business and you have not
provided your correct TIN to the payer.
Payments that are not subject to information reporting are also not subject to
backup withholding. For details, see sections 6041, 6041A(a), 6042, 6044, 6045,
6049, 6050A, and 6050N, and the regulations under such sections.
PENALTIES
FAILURE TO FURNISH TIN. -- If you fail to furnish your TIN 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.
MISUSE OF TINS. -- If the requester discloses or uses TINs in violation of
Federal laws, the requester may be subject to civil and criminal penalties.
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.
CRIMINAL PENALTY FOR FALSIFYING INFORMATION. -- Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
SPECIFIC INSTRUCTIONS
NAME. -- If you are an individual, generally provide the name shown on your
social security card. However, if you have changed your last name, for
instance, due to marriage, without informing the Social Security Administration
of the name change, please enter your first name and both the last name shown on
your social security card and your new last name.
SIGNING THE CERTIFICATION. --
(1) INTEREST, DIVIDEND, AND XXXXXX EXCHANGE ACCOUNTS OPENED BEFORE 1984 AND
BROKER ACCOUNTS THAT WERE CONSIDERED ACTIVE DURING 1983. -- You are not required
to sign the certification; however, you may do so. You are required to provide
your correct TIN.
(2) INTEREST, DIVIDEND, BROKER AND XXXXXX EXCHANGE ACCOUNTS OPENED AFTER 1983
AND BROKER ACCOUNTS THAT WERE CONSIDERED INACTIVE DURING 1983. -- You must sign
the certification or backup withholding will apply. If you are subject to
backup withholding and you are merely providing your correct TIN to the
requester, you must cross out item (2) in the certification before signing the
form.
(3) OTHER PAYMENTS. -- You are required to furnish your correct TIN, but you
are not required to sign the certification unless you have been notified of an
incorrect TIN. Other payments include payments made in the course of the
requestor's trade or business for rents, royalties, goods (other than bills for
merchandise), medical and health care services, payments to a nonemployee for
services (including attorney and accounting fees), and payments to certain
fishing boat crew members.
(4) EXEMPT PAYEES AND PAYMENTS -- If you are exempt from backup withholding,
you should complete this form to avoid possible erroneous backup withholding.
Enter your correct TIN in Part I, write "EXEMPT" in the block in Part II, sign
and date the form. If you are a nonresident alien or foreign entity not subject
to backup withholding, give the requester a completed FORM W-8, Certificate of
Foreign Status.
(5) TIN "APPLIED FOR." -- Follow the instructions under How To Obtain a TIN, on
page 1, sign and date this form.
SIGNATURE.-- For a joint account, only the person whose TIN is shown in Part I
should sign the form.
PRIVACY ACT NOTICE. -- Section 6109 requires you to furnish your correct
taxpayer identification number (TIN) to persons who must file information
returns with IRS to report interest, dividends, and certain other income paid to
you, mortgage interest you paid, the acquisition or abandonment of secured
property, or contributions you made to an individual retirement arrangement
(IRA). IRS uses the numbers for identification purposes and to help verify the
accuracy of your tax return. You must provide your TIN whether or not you are
required to file a tax return. Payers must generally withhold 20% of taxable
interest, dividend, and certain other payments to a payee who does not furnish a
TIN to a payer. Certain penalties may also apply.
9
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER (TIN) ON SUBSTITUTE FORM W-9
(SECTION REFERENCES ARE TO THE INTERNAL REVENUE CODE)
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER. -
- Social Security numbers have nine digits separated by two hyphens: i.e. 000-
00-0000. Employer identification numbers have nine digits separated by only one
hyphen: i.e. 00-0000000. The table below will help determine the number to give
the payer.
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GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF --
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1. An individual's account The individual
2. Two or more individuals The actual owner of the
(joint account) account or, if combined
funds, any one of the
individuals (1)
3. Custodian account of a minor The minor (2)
(Uniform Gift to Minors Act)
4. a. The usual revocable savings trust The grantor-trustee (1)
account (grantor is also trustee)
b. So-called trust account that is not The actual owner (1)
a legal or valid trust under State
law
5. Sole proprietorship account The owner (3)
6. Sole Proprietorship The owner (3)
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GIVE THE
FOR THIS TYPE OF ACCOUNT: EMPLOYER
IDENTIFICATION
NUMBER OF --
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7. A valid trust, estate, or pension The legal entity (5)
trust
8. Corporate account The corporation
9. Association, club, religious, The organization
charitable, educational or other tax-
exempt organization account
10. Partnership account held in the The partnership
name of the business
11. A broker or registered nominee The broker or nominee
12. Account with the Department of The public entity
Agriculture in the name of a public
entity (such as a State or local
government, school district, or
prison) that receives agricultural
program payments
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(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) Show the name of the owner.
(5) List first and circle the name of the valid trust, estate, or pension trust.
(Do not furnish the identifying number of the personal representative or
trustee unless the legal entity itself is not designated in the account
title)
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
