Exhibit (a)(2)
THIS DOCUMENT AND THE OFFER DOCUMENT ARE IMPORTANT AND REQUIRE YOUR IMMEDIATE
ATTENTION. If you are in any doubt about the action you should take, you are
recommended immediately to seek your own financial advice from your stockbroker,
attorney, accountant or other independent financial adviser.
If you have sold or otherwise transferred all your Innogy ADSs, please pass the
Offer Document and all accompanying documents as soon as possible to the
purchaser or transferee, or to the bank, stockbroker or other agent through whom
the sale or transfer was effected for transmission to the purchaser or
transferee. HOWEVER, SUCH DOCUMENTS SHOULD NOT BE FORWARDED OR TRANSMITTED IN OR
INTO AUSTRALIA, CANADA OR JAPAN OR ANY OTHER JURISDICTION IF TO DO SO WOULD
CONSTITUTE A VIOLATION OF THE RELEVANT LAWS IN SUCH JURISDICTION. If you hold
Ordinary Shares of Innogy Holdings plc, you may not use this Letter of
Transmittal to tender them. Ordinary Shares of Innogy Holdings plc can only be
tendered by completing, signing and delivering a separate Form of Acceptance.
- --------------------------------------------------------------------------------
Letter of Transmittal
To Tender American Depositary Shares
pursuant to the
Recommended Cash Offer
by
a wholly-owned subsidiary of
RWE AG
and (outside the United States) by
Merrill Lynch
on its behalf
for
Innogy Holdings plc
[LOGO] RWE [LOGO] Innogy
One Group.
Multi Utilities.
THE OFFER WILL REMAIN OPEN FOR ACCEPTANCE DURING THE INITIAL OFFER PERIOD. THE
INITIAL OFFER PERIOD FOR ACCEPTANCES AND WITHDRAWALS WILL EXPIRE AT 3.00 P.M.
LONDON TIME, 10.00 A.M. NEW YORK CITY TIME, ON FRIDAY, APRIL 26, 2002, UNLESS
EXTENDED TO A LATER CLOSING DATE. AT THE CONCLUSION OF THE INITIAL OFFER PERIOD,
IF ALL CONDITIONS OF THE OFFER HAVE BEEN SATISFIED, FULFILLED OR, WHERE
PERMITTED, WAIVED, THE OFFER WILL BE EXTENDED FOR A SUBSEQUENT OFFER PERIOD OF
AT LEAST 14 CALENDAR DAYS. HOLDERS OF INNOGY SECURITIES WILL HAVE THE RIGHT TO
WITHDRAW THEIR ACCEPTANCE OF THE OFFER FROM THE DATE OF THIS LETTER UNTIL THE
SPECIFIED TIME ON THE LAST DAY OF THE INITIAL OFFER PERIOD, BUT NOT DURING THE
SUBSEQUENT OFFER PERIOD.
The Depositary for the Offer is:
The Bank of New York
Telephone Assistance:
(800) 507-9357
By Mail: By Overnight Delivery: By Hand:
Tender & Exchange Department Tender & Exchange Department Tender & Exchange Department
P.O. Box 11248 5th Floor 3rd Floor
Church Street Station 385 Rifle Camp Road One Wall Street
New York, NY 10286-1248 West Paterson, NJ 07424 New York, NY 10286
Facsimile Transmission To Confirm Facsimile
for Eligible Institutions: Transmission Only:
(973) 247-4077 (973) 247-4075
Delivery of this Letter of Transmittal to an address, or transmission of
instructions via a facsimile number, other than as set forth above, does not
constitute a valid delivery.
The instructions accompanying this Letter of Transmittal should be read
carefully before this Letter of Transmittal is completed. Certain terms used in
this Letter of Transmittal and not otherwise defined herein shall have the
respective meanings assigned to them in the Offer Document.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
DESCRIPTION OF INNOGY ADSs TENDERED
Name(s) and Address(es) of Registered Holder(s)
(Please fill in, if blank, exactly as name(s) Innogy ADS(s) Tendered
appear(s) on ADR(s)) (Attach additional list if necessary)
- ------------------------------------------------ ------------------------------------------------------------
Total Number of
ADR Serial ADSs Represented Number of ADSs
Number(s)* by ADR(s)* Tendered**
- ------------------------------------------------ ------------------- ---------------------- -----------------
- ------------------------------------------------ ------------------- ---------------------- -----------------
- ------------------------------------------------ ------------------- ---------------------- -----------------
- ------------------------------------------------ ------------------- ---------------------- -----------------
Total ADR(s)
- ------------------------------------------------ ------------------- ---------------------- -----------------
* Need not be completed for book-entry transfers.
** Unless otherwise indicated, it will be assumed that all Innogy ADSs
delivered to the Depositary are being tendered. See Instruction 4.
2
TENDERING HOLDERS OF INNOGY ADSs EVIDENCED BY INNOGY ADRs WILL RECEIVE PAYMENT
IN DOLLARS INSTEAD OF POUNDS STERLING UNLESS THEY ELECT OTHERWISE HEREIN TO
RECEIVE PAYMENT IN POUNDS STERLING. IF YOU WISH TO RECEIVE POUNDS STERLING
INSTEAD OF DOLLARS, YOU MUST PLACE AN "X" IN THE BOX ENTITLED "POUNDS STERLING
PAYMENT ELECTION".
ACCEPTANCE OF THE OFFER IN RESPECT OF INNOGY SHARES CANNOT BE MADE BY MEANS OF
THIS LETTER OF TRANSMITTAL. If you hold Innogy Shares that are not represented
by Innogy ADSs, you can obtain a Form of Acceptance for accepting the Offer in
respect of those Innogy Shares from the Information Agent or the Receiving
Agent. See Instruction 13 of this Letter of Transmittal.
Delivery of a properly completed and duly executed Letter of Transmittal, Innogy
ADRs evidencing Innogy ADSs (or book-entry transfer of such Innogy ADSs) and any
other required documents to the Depositary by a holder of Innogy ADSs will be
deemed (without any further action by the Depositary) to constitute an
acceptance of the Offer by such holder with respect to such Innogy ADSs subject
to the terms and conditions set out in the Offer Document and this Letter of
Transmittal.
This Letter of Transmittal is to be used if Innogy ADRs evidencing Innogy ADSs
are to be forwarded herewith. If delivery of Innogy ADSs is to be made by
book-entry transfer to an account maintained by the Depositary at a Book-Entry
Transfer Facility pursuant to the procedures for book-entry transfer set forth
in Appendix I, "Part B: Further Terms of the Offer" in the Offer Document, then
either this Letter of Transmittal or an Agent's Message, as defined in the Offer
Document, should be used.
Questions or requests for assistance may be directed to the Information Agent at
its address and telephone numbers set forth below. Requests for copies of the
Offer Document, this Letter of Transmittal, the Notice of Guaranteed Delivery
and all other tender offer materials may be directed to the Information Agent as
set forth below and will be furnished promptly at the Offeror's expense. Except
as set out in Appendix V of the Offer Document, the Offeror will not pay fees or
commissions to any broker or dealer or any other person for soliciting tenders
of Innogy ADSs pursuant to the Offer. Holders of Innogy ADSs may also contact
their broker, dealer, commercial bank, trust company or other nominee for
assistance concerning the Offer.
The Information Agent for the Offer is:
[LOGO] Georgeson Shareholder
17 State Street
10th Floor
New York, NY 10004
Banks and Brokers Call: (212) 440-9800
Toll-Free: (866) 867-1144
3
TENDER OF INNOGY ADSs
[_] CHECK BOX IF INNOGY ADSs IN RESPECT OF WHICH THE OFFER IS BEING ACCEPTED
ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY
THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE
FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY TRANSFER FACILITY MAY DELIVER
INNOGY ADSs BY BOOK-ENTRY TRANSFER):
Name of Delivering Institution.............................................
Account Number at The Depository Trust Company.............................
Transaction Code Number....................................................
By crediting the Innogy ADSs to the Depositary's account at the Book-Entry
Transfer Facility's Automated Tender Offer Program ("ATOP") and by
complying with applicable ATOP procedures with respect to the Offer,
including transmitting to the Depositary an Agent's Message, the
participant in the Book-Entry Transfer Facility confirms on behalf of
itself and the beneficial owners of such Innogy ADSs all provisions of this
Letter of Transmittal (including all representations and warranties)
applicable to it and such beneficial owner as fully as if it had completed
the information required herein and executed and transmitted this Letter of
Transmittal to the Depositary.
[_] CHECK BOX ONLY IF INNOGY ADSs IN RESPECT OF WHICH THE OFFER IS BEING
ACCEPTED ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s).............................................
Date of Execution of Notice of Guaranteed Delivery.........................
Name of Institution that Guaranteed Delivery...............................
If a holder of Innogy ADSs wishes to accept the Offer and Innogy ADRs evidencing
such Innogy ADSs are not immediately available or the procedures for book-entry
transfer cannot be completed on a timely basis, or if time will not permit all
required documents to reach the Depositary before the expiration of the Offer,
such holder's acceptance of the Offer may nevertheless be effected using the
Guaranteed Delivery Procedure set out under Appendix I, "Part B: Further Terms
of the Offer" in the Offer Document. See Instruction 2 of this Letter of
Transmittal. HOWEVER, RECEIPT OF A NOTICE OF GUARANTEED DELIVERY WILL NOT BE
TREATED AS A VALID ACCEPTANCE FOR THE PURPOSE OF SATISFYING THE ACCEPTANCE
CONDITION.
4
Ladies and Gentlemen:
The undersigned acknowledges that he or she has received and reviewed the Offer
Document dated March 28, 2002, of GBV Funfte Gesellschaft fur
Beteiligungsverwaltung mbH, a company organized under the laws of The Federal
Republic of Germany (the "Offeror"), and a wholly owned subsidiary of RWE AG,
and this Letter of Transmittal, which together contain the Offer by the Offeror
to purchase, upon the terms and subject to the conditions set out in the Offer
Document and the Letter of Transmittal, all of the issued ordinary shares of 10
pence each ("Innogy Shares") of Innogy Holdings plc ("Innogy") and all of the
issued American Depositary Shares ("Innogy ADSs"), each representing 10 Innogy
Shares and evidenced by American Depositary Receipts ("Innogy ADRs").
The Offer in the United States is made solely by the Offeror and neither Merrill
Lynch International nor any of its affiliates is making the Offer in the United
States.
The undersigned hereby accepts the Offer with respect to the Innogy ADSs
evidenced by Innogy ADRs (which expression in this Letter of Transmittal shall,
except where the context otherwise requires, be deemed to include, without
limitation, Innogy Shares represented thereby) specified in the box entitled
"Description of Innogy ADSs Tendered" subject to the terms and conditions set
forth in the Offer Document and this Letter of Transmittal, and instructs the
Depositary to inform the Offeror in writing that the Offer has been so accepted.
The undersigned hereby acknowledges that delivery of this Letter of Transmittal,
Innogy ADRs evidencing tendered Innogy ADSs (or book-entry transfer of such
Innogy ADSs) and any other required documents to the Depositary by a holder of
Innogy ADSs will be deemed (without any further action by the Depositary) to
constitute acceptance of the Offer by such holder in respect of such holder's
Innogy ADSs, subject to the terms and conditions set out in the Offer Document
and this Letter of Transmittal.
The undersigned understands that acceptance of the Offer by the undersigned
pursuant to the procedures described herein and in the instructions hereto,
subject to the withdrawal rights described in the Offer Document, will
constitute a binding agreement between the undersigned and the Offeror upon the
terms and subject to the conditions of the Offer. IF ACCEPTANCE HAS BEEN MADE IN
RESPECT OF THE INNOGY ADSs THEN A SEPARATE ACCEPTANCE IN RESPECT OF THE INNOGY
ORDINARY SHARES REPRESENTED BY SUCH INNOGY ADSs MAY NOT BE MADE.
The undersigned hereby delivers to the Depositary for tender to the Offeror the
above-described Innogy ADSs evidenced by Innogy ADRs for which the Offer is
being accepted, in accordance with the terms and conditions of the Offer
Document and this Letter of Transmittal.
Upon the terms of the Offer (including, if the Offer is extended, revised or
amended, the terms or conditions of any such extension, revision or amendment),
and effective at the time that all conditions of the Offer have been satisfied,
fulfilled or, where permitted, waived (at which time the Offeror will give
notice thereof to the Depositary), and if the undersigned has not validly
withdrawn his or her acceptance, the undersigned hereby sells, assigns and
transfers to, or upon the order of, the Offeror all right, title and interest in
and to all Innogy ADSs evidenced by Innogy ADRs with respect to which the Offer
is being accepted (and any and all Innogy ADSs or other securities or rights
issuable in respect of such Innogy ADSs) and irrevocably constitutes and
appoints the Depositary the true and lawful agent and attorney-in-fact of the
undersigned with respect to such Innogy ADSs (and any such other Innogy ADSs,
securities or rights), with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest), to (a)
deliver Innogy ADRs for such Innogy ADSs (and any such other Innogy ADSs,
securities or rights) or accept transfer of ownership of such Innogy ADSs (and
any such other Innogy ADSs, securities or rights) on the account books
maintained by a Book-Entry Transfer Facility together, in any such case, with
all accompanying evidences of transfer and authenticity to, or upon the order
of, the Offeror, (b) present such Innogy ADRs for such Innogy ADSs (and any
other such Innogy ADSs, securities or rights) for transfer and (c) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Innogy ADSs (and any such other Innogy ADSs, securities or rights), all in
accordance with the terms of the Offer.
The undersigned agrees that the execution of this Letter of Transmittal
(together with any signature guarantees) and its delivery to the Depositary (or
the completion of the book-entry transfer procedures) shall constitute an
authority to any Director of the Offeror in accordance with the terms of
paragraph 5 of Part B of Appendix I of the Offer Document.
5
By executing this Letter of Transmittal as set forth above, the tendering holder
of Innogy ADSs evidenced by Innogy ADRs agrees that, effective from and after
the date hereof or, if later, the date on which all conditions of the Offer are
satisfied, fulfilled or, where permitted, waived: (a) the Offeror or its agents
shall be entitled to direct the exercise of any votes attaching to Innogy Shares
represented by any Innogy ADSs in respect of which the Offer has been accepted
or is deemed to have been accepted (the "accepted ADSs") and any other rights
and privileges attaching to such Innogy Shares, including any right to
requisition a general meeting of Innogy or of any class of its securities, and
(b) the execution of this Letter of Transmittal by a holder of Innogy ADSs
(together with any signature guarantees) and its delivery to the Depositary
shall constitute in respect of accepted ADSs (i) an authority to Innogy or its
agents from the tendering holder of accepted ADSs to send any notice, circular,
warrant, document or other communications that may be required to be sent to him
or her as a holder of Innogy ADSs to the Offeror at its registered office, (ii)
an authority to the Offeror or its agent to sign any consent to short notice of
a general meeting or separate class meeting on behalf of the holder of accepted
ADSs and/or to execute a form of proxy in respect of the accepted ADSs
appointing any person nominated by the Offeror to attend general meetings and
separate class meetings of Innogy or any adjournment thereof and to exercise the
votes attaching to Innogy Shares represented by such accepted ADSs on his or her
behalf, and (iii) the agreement of the tendering holder of accepted ADSs not to
exercise any such rights without the consent of the Offeror and the irrevocable
undertaking of such tendering holder of accepted ADSs not to appoint a proxy for
or to attend any such general meetings or separate class meetings.
By executing this Letter of Transmittal as set forth above, the tendering holder
of Innogy ADSs represents and warrants that the tendering holder of accepted
ADSs has full power and authority to accept the Offer and to tender, sell,
assign and transfer Innogy ADSs in respect of which the Offer is being accepted
or deemed to be accepted (and any and all other Innogy ADSs, securities or
rights issued or issuable in respect of such Innogy ADSs) and, when the same are
purchased by the Offeror, the Offeror will acquire good title thereto, free from
all liens, charges, equitable interests, third party rights and interests and
encumbrances and together with all rights now or hereafter attaching thereto,
including voting rights and the right to receive all dividends and other
distributions (if any) declared, made or paid with respect to Innogy Shares
represented by Innogy ADSs. The tendering holder of accepted ADSs will, upon
request, execute any additional documents deemed by the Depositary or the
Offeror to be necessary or desirable to complete the sale, assignment and
transfer of Innogy ADSs evidenced by Innogy ADRs in respect of which the Offer
is being accepted (and any and all other Innogy ADSs, securities or rights).
By executing this Letter of Transmittal as set forth above, the tendering holder
of Innogy ADSs irrevocably undertakes, represents and warrants to and agrees
with the Offeror (so as to bind him or her and his or her personal
representatives, heirs, successors and assigns) to the effect that such
tendering holder of accepted ADSs: (i) has not received or sent copies or
originals of the Offer Document or this Letter of Transmittal or any related
offering documents in, into or from Australia, Canada or Japan; (ii) has not
used in connection with the Offer or the execution or delivery of this Letter of
Transmittal, directly or indirectly, the mails of, or any means or
instrumentality (including, without limitation, e-mail, facsimile transmission,
telex and telephone) of interstate or foreign commerce of, or any facilities of
a national securities exchange of Australia, Canada or Japan; (iii) is accepting
the Offer from outside Australia, Canada and Japan; and (iv) is not an agent or
fiduciary acting on a non-discretionary basis for a principal, unless such agent
or fiduciary is an authorized employee of such principal or such principal has
given all instructions with respect to the Offer from outside Australia, Canada
or Japan.
This Letter of Transmittal relates to the tender of Innogy ADSs. For the
avoidance of doubt, by delivery of this Letter of Transmittal to the Depositary
in respect of Innogy ADSs, the undersigned agrees not to instruct, and nothing
in this Letter of Transmittal shall be interpreted or deemed to be an
instruction to, The Bank of New York, as depositary (the "ADS depositary") under
the deposit agreement between Innogy and the ADS depositary to accept the Offer
for Innogy Shares made by the Offeror in respect of the Innogy Shares
represented by such Innogy ADSs.
The undersigned further agrees that by delivery of this Letter of Transmittal to
the Depositary in respect of Innogy ADSs, the undersigned will not, unless such
Letter of Transmittal is validly withdrawn, deliver such ADSs to the ADS
depositary to request withdrawal of the Innogy Shares represented by such Innogy
ADSs.
6
References in this Letter of Transmittal to a holder of Innogy ADSs shall
include references to the person or persons executing a Letter of Transmittal
and, in the event of more than one person executing a Letter of Transmittal, the
provisions of this Letter of Transmittal shall apply to them jointly and to each
of them.
All authority herein conferred or agreed to be conferred pursuant to this Letter
of Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer Document, this acceptance is irrevocable.
Unless otherwise indicated herein under "Special Payment Instructions", the
undersigned hereby instructs the Depositary to issue, or cause to be issued, the
check for the purchase price in the name(s) of the registered holder(s)
appearing under "Description of Innogy ADSs Tendered". Similarly, unless
otherwise indicated under "Special Delivery Instructions", the undersigned
hereby instructs the Depositary to mail, or cause to be mailed, the check for
the purchase price and/or return, or cause to be returned, any Innogy ADRs
evidencing Innogy ADSs in respect of which the Offer is not being accepted or
which are not purchased (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under "Description of Innogy
ADSs Tendered". In the event that the "Special Payment Instructions" and/or the
"Special Delivery Instructions" are completed, the undersigned hereby instructs
the Depositary to (i) issue and/or mail, or cause to be issued and/or mailed,
the check for the purchase price, if any, in the name of, and/or to the address
of, the person or persons so indicated, and/or (ii) return, or cause to be
returned, any Innogy ADRs evidencing Innogy ADSs in respect of which the Offer
is not being accepted or which are not purchased, if any, to the person at the
address so indicated. In the case of a book-entry delivery of Innogy ADSs
evidenced by Innogy ADRs, the undersigned hereby instructs the Depositary to
credit the account maintained at the Book-Entry Transfer Facility with any
Innogy ADSs in respect of which the Offer is not being accepted or which are not
purchased. The undersigned recognizes that the Depositary will not transfer any
Innogy ADSs which are not purchased pursuant to the Offer from the name of the
registered holder thereof to any other person.
If the box headed "Pounds Sterling Payment Election" is not checked, the
undersigned hereby instructs the Depositary to pay all amounts payable to the
undersigned pursuant to the Offer in US dollars, converted at the exchange rate
obtainable on the spot market in London at approximately 12.00 noon (London
time) on the date the cash consideration is made available by the Offeror to the
Depositary for delivery to holders of Innogy ADSs and pay such amounts by check
payable in US dollars. The actual amount of US dollars received will depend upon
the exchange rate prevailing on the day funds are made available to the
Depositary by the Offeror. Holders of Innogy ADSs should also be aware that the
US dollar/pound sterling exchange rate which is prevailing at the date on which
the undersigned executes this Letter of Transmittal and on the date of dispatch
of payment may be different from that prevailing on the day funds are made
available to the Depositary by the Offeror. In all cases, fluctuations in the US
dollar/pounds sterling exchange rate are at the risk of accepting holders of
Innogy ADSs who do not elect to receive their consideration in pounds sterling.
SUBJECT TO THE TERMS OF THE OFFER DOCUMENT, THIS LETTER OF TRANSMITTAL SHALL NOT
BE CONSIDERED COMPLETE AND VALID, AND PAYMENT OF CONSIDERATION PURSUANT TO THE
OFFER SHALL NOT BE MADE, UNTIL INNOGY ADRs EVIDENCING INNOGY ADSs IN RESPECT OF
WHICH THE OFFER IS BEING ACCEPTED HEREBY AND ALL OTHER REQUIRED DOCUMENTATION
HAVE BEEN RECEIVED BY THE DEPOSITARY AS PROVIDED IN THE OFFER DOCUMENT AND THIS
LETTER OF TRANSMITTAL.
[_] CHECK HERE IF ANY INNOGY ADRs REPRESENTING INNOGY ADSs THAT YOU OWN HAVE
BEEN LOST, STOLEN OR DESTROYED AND SEE INSTRUCTION 12.
Number of Innogy ADSs represented by the lost, stolen or destroyed Innogy ADRs:
______
7
POUNDS STERLING PAYMENT ELECTION
[_] Check box ONLY if you wish to receive all (but not part) of the amount of
cash consideration to be paid by a check in pounds sterling. If you do not
check this box you will receive payment by a check in US dollars in an
amount equal to the pound sterling amounts payable to you converted to US
dollars at the exchange rate obtainable on the spot market in London at
approximately 12.00 noon (London time) on the date the cash consideration
is made available by the Offeror to the Depositary for delivery to holders
of Innogy ADSs.
SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 5, 6 and 7)
[_] Check box ONLY if the check for the purchase price with respect to Innogy
ADSs purchased is to be issued in the name of someone other than the
undersigned.
Issue to:
Name:......................................................................
Address:...................................................................
(Include Zip Code)
...........................................................................
(Tax Identification or Social Security Number)
(See Substitute Form W-9 included herein)
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, 6 and 7)
[_] Check box ONLY if the check for the purchase price with respect to Innogy
ADSs purchased and/or Innogy ADRs evidencing Innogy ADSs in respect of
which the Offer is not accepted or which are not purchased are to be mailed
to someone other than the undersigned, or to the undersigned at an address
other than that shown above.
Mail: [_] Check [_] ADR certificates to:
Name:......................................................................
Address:...................................................................
(Include Zip Code)
...........................................................................
(Tax Identification or Social Security Number)
(See Substitute Form W-9 included herein)
8
SIGN HERE
(Also complete Substitute Form W-9 included herein)
Sign Here.......................................................................
Sign Here.......................................................................
(Signature(s) of Owner(s))
Dated............................................., 2002
(Must be signed by registered holder(s) exactly as name(s) appear(s) on Innogy
ADRs evidencing Innogy ADSs or by person(s) to whom Innogy ADRs surrendered have
been assigned and transferred, as evidenced by endorsement, stock powers and
other documents transmitted herewith. If signature is by any trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation or others
acting in a fiduciary or representative capacity, please set forth the following
and see Instruction 5.)
Name(s).........................................................................
(Please Type or Print)
Capacity (full title) ..........................................................
Address.........................................................................
................................................................................
(Include Zip Code)
Area Code and Telephone Number..................................................
Tax Identification or Social Security No. ......................................
Guarantee of Signature(s)
(See Instructions 1 and 5)
Authorized Signature............................................................
Name............................................................................
(Please Type or Print)
Title...........................................................................
Name of Firm....................................................................
Address.........................................................................
................................................................................
(Include Zip Code)
Area Code and Telephone Number..................................................
Dated............................................., 2002
9
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this Letter
of Transmittal if (a) this Letter of Transmittal is signed by the
registered holder(s) of the Innogy ADSs evidenced by Innogy ADRs in respect
of which the Offer is being accepted herewith and such holder(s) have not
completed either the box entitled "Special Payment Instructions" or the box
entitled "Special Delivery Instructions" on this Letter of Transmittal or
(b) the Offer is being accepted in respect of such Innogy ADSs for the
account of an Eligible Institution. In all other cases, all signatures on
this Letter of Transmittal must be guaranteed by a financial institution
(including most banks, savings and loan associations and brokerage houses)
which is a participant in the Securities Transfer Association Medallion
Program, the New York Stock Exchange Medallion Program or the Stock
Exchange Medallion Program (an "Eligible Institution"). See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND INNOGY ADSs. This Letter of
Transmittal is to be completed either if Innogy ADRs evidencing Innogy ADSs
are to be forwarded herewith or if delivery is to be made by book-entry
transfer to an account maintained by the Depositary at a Book-Entry
Transfer Facility pursuant to the procedures for book-entry transfer set
out in Appendix 1, "Part B: Further Terms of the Offer" in the Offer
Document. Innogy ADRs evidencing Innogy ADSs or confirmation of a
book-entry transfer of such Innogy ADSs into the Depositary's account at a
Book-Entry Transfer Facility, as well as a properly completed and duly
executed Letter of Transmittal (or a facsimile thereof), together with any
required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message) and any other documents required by this Letter of
Transmittal must be delivered to the Depositary at one of its addresses set
forth herein.
Holders of Innogy ADSs whose Innogy ADRs are not immediately available or
who cannot deliver their Innogy ADRs and all other required documents to
the Depositary or complete the procedures for book-entry transfer prior to
the expiration of the Offer may tender their Innogy ADSs by properly
completing and duly executing the Notice of Guaranteed Delivery pursuant to
the Guaranteed Delivery procedures set out in Appendix I, "Part B: Further
Terms of the Offer" in the Offer Document. Pursuant to the Guaranteed
Delivery procedures: (a) such tender must be made by or through an Eligible
Institution, (b) a properly completed and duly executed Notice of
Guaranteed Delivery substantially in the form provided by the Offeror must
be received by the Depositary prior to the expiration of the Offer and (c)
Innogy ADRs evidencing the tendered Innogy ADSs (or, in the case of Innogy
ADSs held in book-entry form, timely confirmation of the book-entry
transfer of such Innogy ADSs into the Depositary's account at a Book-Entry
Transfer Facility as described in the Offer Document), together with a
properly completed and duly executed Letter of Transmittal (or a facsimile
thereof) with any required signature guarantees (or, in the case of a
book-entry transfer, an Agent's Message) and any other documents required
by this Letter of Transmittal, are received by the Depositary within three
business days after the date of execution of such Notice of Guaranteed
Delivery. For these purposes, a "business day" is any day on which the New
York Stock Exchange is open for business.
THE METHOD OF DELIVERY OF INNOGY ADSs EVIDENCED BY INNOGY ADRs AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND RISK OF THE TENDERING HOLDERS
OF INNOGY ADSs. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent acceptance will be accepted and
no fractional Innogy ADSs will be purchased. All accepting holders of
Innogy ADSs, by execution of this Letter of Transmittal (or a facsimile
thereof) (or, in the case of a book-entry transfer, an Agent's Message),
waive any right to receive any notice of the acceptance of their Innogy
ADSs for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the serial
numbers of the certificates and/or the number of Innogy ADSs should be
listed on a separate schedule attached hereto.
10
4. PARTIAL ACCEPTANCES (NOT APPLICABLE TO BOOK-ENTRY TRANSFERS). If fewer than
all the Innogy ADSs evidenced by Innogy ADRs delivered to the Depositary
are to be tendered hereby, fill in the number of Innogy ADSs that are to be
tendered in the box entitled "Number of ADSs Tendered" on the front page of
this Letter of Transmittal. In such case, except as otherwise provided in
this Letter of Transmittal, a new Innogy ADR for the untendered Innogy ADSs
will be sent to the registered holder, unless otherwise provided in the
appropriate box entitled "Special Delivery Instructions" on this Letter of
Transmittal, as promptly as practicable following the date on which Innogy
ADSs are accepted for payment.
All Innogy ADSs delivered to the Depositary will be deemed to have been
tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If this
Letter of Transmittal is signed by the registered holder(s) of the Innogy
ADSs tendered hereby, the signature(s) must correspond with the name(s) as
written on the face of the Innogy ADRs without any change whatsoever.
If any of the Innogy ADSs evidenced by Innogy ADRs tendered hereby are
owned of record by two or more owners, all such owners must sign this
Letter of Transmittal.
If any of the tendered Innogy ADSs are registered in different names on
different Innogy ADRs, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal as there are different registrations
of Innogy ADRs.
If this Letter of Transmittal or any Innogy ADRs or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and proper evidence
satisfactory to the Offeror of their authority so to act must be submitted.
When this Letter of Transmittal is signed by the registered holder(s) of
Innogy ADSs listed and transmitted hereby, no endorsements of Innogy ADRs
or separate stock powers are required unless delivery of the cash is to be
to a person other than the registered holder(s). Signatures on such Innogy
ADRs or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Innogy ADSs listed, Innogy ADRs must be
endorsed or accompanied by appropriate stock powers signed exactly as the
name(s) of the registered holder(s) appear(s) on Innogy ADRs evidencing
such Innogy ADSs. Signatures on such Innogy ADRs or stock powers must be
guaranteed by an Eligible Institution.
6. STOCK TRANSFER TAXES. The Offeror will pay or cause to be paid any stock
transfer taxes with respect to the transfer and sale to it or its order of
Innogy ADSs evidenced by Innogy ADRs pursuant to the Offer. If, however,
payment of the cash is to be made to any person other than the registered
holder(s), or if the tendered Innogy ADSs are registered in the name of any
person other than the person(s) signing this Letter of Transmittal, the
amount of any stock transfer taxes (whether imposed on the registered
holder(s) or such person(s) payment on account of the transfer to such
person) will be deducted from the purchase price unless satisfactory
evidence of the payment of such taxes or exemption therefrom is submitted.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to Innogy ADRs listed in this Letter of
Transmittal.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If the check for the purchase
price is to be issued in the name of a person other than the signer of this
Letter of Transmittal or if the check for the purchase price is to be sent
and/or any Innogy ADRs evidencing Innogy ADSs in respect of which the Offer
is not being accepted or which are not purchased are to be returned to a
person other than the signer of this Letter of Transmittal or to an address
other than that shown on the reverse, the boxes labeled "Special Payment
Instructions" and/or "Special Delivery Instructions" on this Letter of
Transmittal should be completed.
11
8. POUNDS STERLING PAYMENT ELECTION. If the check for the purchase price is to
be issued in pounds sterling, please check the box marked "Pounds Sterling
Payment Election". If you do not check such box all pound sterling amounts
payable pursuant to the Offer will be converted into US dollars at the
exchange rate obtainable on the spot market in London at approximately
12.00 noon (London time) on the date the cash consideration is made
available by the Offeror to the Depositary for delivery to holders of
Innogy ADSs.
9. WAIVER OF CONDITIONS. The Offeror reserves the absolute right in its sole
discretion to waive any of the specified conditions of the Offer, in whole
or in part, to the extent permitted by applicable law and the rules of the
Code.
10. 30 PERCENT. US BACKUP WITHHOLDING. In order to avoid backup withholding of
US Federal income tax, a holder of Innogy ADSs must provide the Depositary
with his or her correct Taxpayer Identification Number ("TIN") on
Substitute Form W-9 on this Letter of Transmittal and certify, under
penalties of perjury, that such number is correct and that he or she is not
subject to backup withholding. A holder's TIN is either its Social Security
Number or its Employer Identification Number. See the enclosed Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9
for additional guidance. If the correct TIN is not provided, a $50 penalty
may be imposed by the Internal Revenue Service and cash payments made with
respect to the Offer may be subject to backup withholding at a rate of 30
per cent.
Backup withholding is not an additional US Federal income tax. Rather, the
US Federal income tax liability of persons subject to backup withholding
will be reduced by the amount of such tax withheld. If backup withholding
results in an overpayment of taxes, a refund may be applied for from the
Internal Revenue Service.
The TIN that is to be provided on Substitute Form W-9 is that of the
registered holder(s) of the Innogy ADSs or of the last transferee appearing
on the transfer attached to, or endorsed on, the Innogy ADSs. The TIN for
an individual is his or her Social Security Number. Each tendering holder
of Innogy ADSs generally is required to notify the ADS depositary of his or
her correct TIN by completing Substitute Form W-9 contained herein,
certifying that the TIN provided on Substitute Form W-9 is correct (or that
such holder is awaiting a TIN), and that (1) such 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 (2) the Internal Revenue Service has notified such holder
that such holder is no longer subject to backup withholding (see Part 2 of
Substitute Form W-9). Notwithstanding that the "TIN Applied For" box is
checked (and the Certification is completed), the Depositary will withhold
30 per cent. on any cash payment of the purchase price for the tendered
Innogy ADSs made prior to the time it is provided with a properly certified
TIN.
Exempt persons (including, among others, corporations) are not subject to
backup withholding and should so certify on Subsitute Form W-9. A foreign
individual or foreign entity may qualify as an exempt person by submitting
a statement (on Form W-8BEN), signed under penalties of perjury, certifying
such person's foreign status. Form W-8BEN can be obtained from the
Depositary. A holder of Innogy ADSs should consult his or her tax advisor
as to his or her qualification for an exemption from backup withholding and
the procedure for obtaining such exemption.
For additional guidance, see the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for
assistance or additional copies of the Offer Document, this Letter of
Transmittal, the Notice of Guaranteed Delivery or the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may
be directed to the Depositary or the Information Agent, in each case at the
appropriate addresses and telephone numbers set forth in the Offer
Document.
12
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Innogy ADR evidencing Innogy
ADSs has been lost, destroyed or stolen, the holder thereof should promptly
notify the ADS depositary by checking the box immediately preceding the
special payment/special delivery instructions boxes and indicating the
number of Innogy ADSs evidenced by such lost, destroyed or stolen Innogy
ADRs. The holder thereof will then be instructed as to the steps that must
be taken in order to replace such Innogy ADRs. This Letter of Transmittal
and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen Innogy ADRs have been followed.
13. HOLDERS OF INNOGY SHARES. Holders of Innogy Shares have been sent a Form of
Acceptance with the Offer Document and may not tender Innogy Shares
pursuant to this Letter of Transmittal. If any holder of Innogy Shares
which are not represented by Innogy ADSs needs to obtain a copy of a Form
of Acceptance, such holder should contact the Information Agent or the
Receiving Agent at the address and telephone number set forth in the Offer
Document.
March 28, 2002
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- --------------------------------------------------------------------------------
PAYER'S NAME: THE BANK OF NEW YORK, AS DEPOSITARY
- ---------------------------- ------------------------- -----------------------
PART 1-PLEASE PROVIDE Social Security Number
YOUR TIN IN THE BOX AT or Employer
RIGHT AND CERTIFY BY Identification Number
SIGNING AND DATING BELOW. .......................
------------------------- -----------------------
Part 2-Certifications-Under penalties of perjury,
I certify that: (1) the number shown on this form
SUBSTITUTE is my correct Taxpayer Identification Number (or I
am waiting for a number to be issued to me), and
Form W-9 (2) I am not subject to backup withholding
because: (a) I am exempt from backup withholding,
Payer's Request for Taxpayer (b) I have not been notified by the Internal
Identification Number (TIN) 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 US person
(including a US resident alien).
------------------------- -----------------------
Certification Part 3
information-You must
cross out Item (2) above Awaiting TIN [_]
if you have been notified
by the IRS that you are
temporarily subject to -----------------------
backup withholding
because of Part 4
under-reporting interest
or dividends on your tax Exempt [_]
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).
- ---------------------------- ------------------------- -----------------------
Name: ..........................................................................
(Please print)
Address: .......................................................................
(Please print)
Signature: ............................................ Date: ..................
(Including Zip Code)
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 30
PERCENT. 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
SUBSTITUTE FORM W-9:
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that, notwithstanding
that I have checked the box in Part 3 (and have completed this Certificate of
Awaiting Taxpayer Identification Number), all reportable payments made to me
prior to the time I provide the ADS depositary with a properly certified
taxpayer identification number will be subject to a 30 per cent. backup
withholding tax.
Signature:............................................. Date:........
14
The Information Agent for the Offer is:
[LOGO] Georgeson Shareholder
17 State Street
10th Floor
New York, NY 10004
Banks and Brokers Call: (212) 440-9800
Toll-Free: (866) 867-1144