Exhibit (a)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
APACHE MEDICAL SYSTEMS, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED JANUARY 30, 2001
BY
H-QUOTIENT, INC.
and
HENRY M. COHEN
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON THURSDAY, MARCH 8, 2001, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By Mail, Hand and Overnight Courier:
Continental Stock Transfer & Trust Company
Reorganization Department
2 Broadway
New York, New York 10004
By Facsimile Transmissions (for Eligible Institutions Only)
(212) 616-7610
Confirm by Telephone:
(212) 845-3226
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DESCRIPTION OF THE SHARES TENDERED
SHARES TENDERED (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
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NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) APPEAR(S) ON
CERTIFICATE(S)
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NUMBER OF SHARES NUMBER
CERTIFICATE REPRESENTED BY OF SHARES
NUMBER(S)(1) CERTIFICATE(S)(1) TENDERED(2)
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TOTAL SHARES
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1. Need not be completed by Book-Entry Stockholders.
2. Unless otherwise indicated, all shares represented by share certificates
delivered to the Depositary will be deemed to have been tendered. See
instruction 4.
[ ] Check here if certificates have been lost, destroyed or mutilated. See
instruction 11. Number of shares represented by lost, destroyed or
mutilated certificates:
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DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY. YOU MUST SIGN THIS
LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR PROVIDED BELOW AND
COMPLETE THE SUBSTITUTE FORM W-9 SET FORTH BELOW.
THE INSTRUCTIONS CONTAINED WITHIN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be used by stockholders of Apache
Medical Systems, Inc. if certificates for the Shares (as defined below) are to
be forwarded herewith or, unless an Agent's Message (as defined in Instruction 2
below) is used, if delivery of the Shares is to be made by book-entry transfer
to an account maintained by the Depositary at the Book-Entry Transfer Facility
(as defined in and pursuant to the procedures set forth in Section 3 of the
Offer to Purchase dated January 30, 2001 (the "Offer to Purchase")).
Stockholders who deliver Shares by book-entry transfer are referred to herein as
"Book-Entry Stockholders" and other stockholders who deliver Shares are referred
to herein as "Certificate Stockholders."
Stockholders whose certificates for the Shares are not immediately
available or who cannot deliver either the certificates for, or a Book-Entry
Confirmation (as defined in Section 3 of the Offer to Purchase) with respect to,
their Shares and all other documents required hereby to the Depositary before
the Expiration Date (as defined in Section 1 of the Offer to Purchase) must
tender their Shares pursuant to the guaranteed delivery procedures set forth in
Section 3 of the Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO
THE BOOK-ENTRY TRANSFER FACILITY WILL NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
TO THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE
THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY
DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution
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Depository Trust Company Account Number
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Transaction Code Number
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[ ] CHECK HERE IF TENDERED SHARES 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)
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Window Ticket Number (if any)
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Date of Execution of Notice of Guaranteed Delivery
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Name of Institution that Guaranteed Delivery
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If delivered by Book-Entry Transfer, check box: [ ]
Account Number
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Transaction Code Number
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NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE INSTRUCTIONS SET FORTH IN
THIS LETTER OF TRANSMITTAL CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to H-Quotient, Inc., a Virginia
corporation and Henry W. Cohn (collectively, "Purchaser, the above-described
shares of common stock, par value $.01 per share (the "Common Stock"), of Apache
Medical Systems, Inc., a Delaware corporation (the "Company"), paid in the form
of an exchange of one share of H-Quotient common stock for every five (5)
shares of Common Stock tendered (the "Common Stock Price"), upon the terms and
subject to the conditions set forth in the Offer to Purchase dated February 7,
2001 (the "Offer to Purchase") and in this related Letter of Transmittal (which,
together with any amendments or supplements hereto or thereto, collectively
constitute the "Offer"). The undersigned hereby acknowledges receipt of the
Offer.
Upon the terms and subject to the conditions of the Offer (and if the
Offer is extended or amended, the terms of any such extension or amendment), and
subject to, and effective upon, acceptance for payment of the Shares tendered
herewith in accordance with the terms of the Offer, the undersigned hereby
sells, assigns and transfers to, or upon the order of, Purchaser all right,
title and interest in and to all the Shares that are being tendered hereby (and
any and all non-cash dividends, distributions, rights, other shares of common
stock or other securities issued or issuable in respect thereof on or after
February 7, 2001 (collectively, "Distributions")) and irrevocably constitutes
and appoints the Depositary the true and lawful agent and attorney-in-fact of
the undersigned with respect to such Shares (and all Distributions), with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to (i) deliver certificates for such Shares
(and any and all Distributions), or transfer ownership of such Shares (and any
and all Distributions) on the account books maintained by the Book-Entry
Transfer Facility, together, in any such case, with all accompanying evidences
of transfer and authenticity, to or upon the order of Purchaser, (ii) present
such Shares (and any and all Distributions) for transfer on the books of the
Company, and (iii) receive all benefits and otherwise exercise all rights of
beneficial ownership of such Shares (and any and all Distributions), all in
accordance with the terms of the Offer Documents.
By executing this Letter of Transmittal, the undersigned hereby
irrevocably appoints Douglas Cohn, an officer of H-Quotient, Inc and any
individual who shall thereafter succeed to any such offices of Purchaser, and
each of them, and any other designees of Purchaser, the attorneys-in-fact and
proxies of the undersigned, each with full power of substitution (i) to vote at
any annual or special meeting of the Company's stockholders or any adjournment
or postponement thereof or otherwise in such manner as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, (ii) to execute any written consent concerning any
matter as each such attorney-in-fact and proxy or his substitute shall in his
sole discretion deem proper with respect to, and (iii) to otherwise act as each
such attorney-in-fact and proxy or his substitute shall in his sole discretion
deem proper
with respect to, all of the Shares (and any and all Distributions) tendered
hereby and accepted for payment by Purchaser. This appointment will be effective
if and when, and only to the extent that, Purchaser accepts such Shares for
payment pursuant to the Offer. This power of attorney and proxy are irrevocable
and are granted in consideration of the acceptance for payment of such Shares in
accordance with the terms of the Offer. Such acceptance for payment shall,
without further action, revoke any prior powers of attorney and proxies granted
by the undersigned at any time with respect to such Shares (and any and all
Distributions), and no subsequent powers of attorney, proxies, consents or
revocations may be given by the undersigned with respect thereto (and, if given,
will not be deemed effective). Purchaser reserves the right to require that, in
order for the Shares to be deemed validly tendered, immediately upon Purchaser's
acceptance for payment of such Shares, Purchaser must be able to exercise full
voting, consent and other rights with respect to such Shares (and any and all
Distributions), including voting at any meeting of the Company's stockholders.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby and all Distributions, that the undersigned owns the Shares
tendered hereby within the meaning of Rule 14e-4 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that the
tender of the tendered Shares complies with Rule 14e-4 under the Exchange Act,
and that when the same are accepted for payment by Purchaser, Purchaser will
acquire good, marketable and unencumbered title thereto and to all
Distributions, free and clear of all liens, restrictions, charges and
encumbrances and the same will not be subject to any adverse claims. The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Depositary or Purchaser to be necessary or desirable to complete
the sale, assignment and transfer of the Shares tendered hereby and all
Distributions. In addition, the undersigned shall remit and transfer promptly to
the Depositary for the account of Purchaser all Distributions in respect of the
Shares tendered hereby, accompanied by appropriate documentation of transfer,
and, pending such remittance and transfer or appropriate assurance thereof,
Purchaser shall be entitled to all rights and privileges as owner of each such
Distribution and may withhold the entire purchase price of the Shares tendered
hereby or deduct from such purchase price the amount or value of such
Distribution as determined by Purchaser in its sole discretion.
All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the undersigned, and any obligation of the
undersigned hereunder shall be binding upon the heirs, executors,
administrators, personal representatives, trustees in bankruptcy, successors and
assigns of the undersigned. This tender is irrevocable.
The undersigned understands that the valid tender of the Shares
pursuant to any one of the procedures described in Section 3 of the Offer to
Purchase and in the Instructions hereto will constitute a binding agreement
between the undersigned and Purchaser upon the terms and subject to the
conditions of the Offer (and if the Offer is extended or amended, the terms or
conditions of any such extension or amendment (including the undersigned's
rights of withdrawal as described in Section 4 of the Offer to Purchase)).
Without limiting the foregoing, if the price to be paid in the Offer is amended
in accordance with the terms of the Offer to Purchase, the price to be paid to
the undersigned will be the amended price notwithstanding the fact that a
different price is stated in this Letter of Transmittal. The undersigned
recognizes that under certain circumstances set forth in the Offer to Purchase,
Purchaser may not be required to accept for payment any of the Shares tendered
hereby.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price of all Shares purchased and/or return any
certificates for any Shares not tendered or accepted for payment in the name(s)
of the registered holder(s) appearing above under "Description of the Shares
Tendered." Similarly, unless otherwise indicated under "Special Delivery
Instructions," please mail the
check for the purchase price of all Shares purchased and/or return any
certificates for any Shares not tendered or not accepted for payment (and any
accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing above under "Description of the Shares Tendered." If the
boxes entitled "Special Payment Instructions" and "Special Delivery
Instructions" are both completed, please issue the check for the purchase price
of all Shares purchased and/or return any certificates evidencing Shares not
tendered or not accepted for payment (and any accompanying documents, as
appropriate) in the name(s) of, and deliver such check and/or return any such
certificates (and any accompanying documents, as appropriate) to, the person(s)
so indicated. Unless otherwise indicated herein in the box entitled "Special
Payment Instructions," please credit any Shares tendered herewith by book-entry
transfer that are not accepted for payment by crediting the account at the
Book-Entry Transfer Facility designated above. The undersigned recognizes that
Purchaser has no obligation pursuant to the "Special Payment Instructions" to
transfer any Shares from the name of the registered holder thereof if Purchaser
does not accept for payment any of the Shares so tendered. 5
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the shares of H-Quotient representing the
purchase price of the Shares accepted for payment is to be issued in the name of
someone other than the undersigned, if certificates for any Shares not tendered
or not accepted for payment are to be issued in the name of someone other than
the undersigned or if any Shares tendered hereby and delivered by book-entry
transfer that are not accepted for payment are to be returned by credit to an
account maintained at a Book-Entry Transfer Facility other than the account
indicated above.
Issue check and/or stock certificate(s) to:
Name ---------------------------------------------------------------------------
(PLEASE PRINT)
Address ------------------------------------------------------------------------
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(INCLUDE ZIP CODE)
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(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER))
(SEE SUBSTITUTE FORM W-9)
Credit Shares delivered by book-entry transfer and not purchased to the
Book-Entry Transfer Facility account.
Account number -----------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for any Shares not tendered or not
accepted for payment and/or the shares of H-Quotient representing the purchase
price of any Shares accepted for payment is to be sent to someone other than the
undersigned or to the undersigned at an address other than that shown under
"Description of the Shares Tendered." Mail check and/or stock certificates to:
Mail check and/or stock certificates to:
Name ---------------------------------------------------------------------------
(PLEASE PRINT)
Address ------------------------------------------------------------------------
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(INCLUDE ZIP CODE)
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(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9)
IMPORTANT
STOCKHOLDER -- SIGN HERE
(COMPLETE SUBSTITUTE FORM W-9 BELOW)
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(SIGNATURE(S) OF OWNER(S))
Dated:
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(Must be signed above by registered holder(s) exactly as name(s) appear(s) on
stock certificate(s) or on a security position listing or by the person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, agent, officer of a corporation or other person
acting in a fiduciary or representative capacity, please provide the following
information and see Instruction 5).
Name(s)
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(PLEASE PRINT)
Name of Firm
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Capacity (full title)
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(SEE INSTRUCTION 5)
Address
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(INCLUDE ZIP CODE)
Area Code and Telephone Number
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Taxpayer Identification or Social Security Number
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(SEE SUBSTITUTE FORM W-9)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE
BELOW.
Authorized signature(s)
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Name(s)
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Name of Firm
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(PLEASE PRINT)
Address
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(INCLUDE ZIP CODE)
Area Code and Telephone Number
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Dated:
- ------------------------ , 2001
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 (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Instruction, includes any
participant in any of the Book-Entry Transfer Facility's systems whose name
appears on a security position listing as the owner of the Shares) of the Shares
tendered herewith, unless such registered holder(s) has completed either the box
entitled "Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on the Letter of Transmittal or (b) if such Shares are tendered
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in the
Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program or
by any other "eligible guarantor institution," as such term is defined in Rule
17Ad-15 under the Exchange Act (each, an "Eligible Institution"). In all other
cases, all signatures on this Letter of Transmittal must be guaranteed by an
Eligible Institution. See Instruction 5.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be
completed by stockholders of the Company either if certificates are to be
forwarded herewith or, unless an Agent's Message is utilized, if delivery of the
Shares is to be made by book-entry transfer pursuant to the procedures set forth
herein and in Section 3 of the Offer to Purchase. For a stockholder validly to
tender Shares pursuant to the Offer, either (a) a properly completed and duly
executed Letter of Transmittal (or a manually signed facsimile thereof),
together with any required signature guarantees or an Agent's Message (in
connection with book-entry transfer of the Shares) and any other required
documents, must be received by the Depositary at one of its addresses set forth
herein before the Expiration Date, or the expiration of any Subsequent Offering
Period, and either (i) certificates for tendered Shares must be received by the
Depositary at one of such addresses before the Expiration Date, or the
expiration of any Subsequent Offering Period, or (ii) Shares must be delivered
pursuant to the procedures for book-entry transfer set forth herein and in
Section 3 of the Offer to Purchase and a Book-Entry Confirmation must be
received by the Depositary before the Expiration Date, or the expiration of any
Subsequent Offering Period, or (b) the tendering stockholder must comply with
the guaranteed delivery procedures set forth herein and in Section 3 of the
Offer to Purchase.
Stockholders whose certificates for the Shares are not immediately
available or who cannot deliver their certificates and all other required
documents to the Depositary before the Expiration Date, or who cannot comply
with the book-entry transfer procedures on a timely basis, may tender their
Shares by properly completing and duly executing the Notice of Guaranteed
Delivery pursuant to the guaranteed delivery procedures set forth herein and in
Section 3 of the Offer to Purchase.
Pursuant to the guaranteed delivery procedures, (i) such tender must be
made by or through an Eligible Institution, (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form provided by
Purchaser, must be received by the Depositary before the Expiration Date, and
(iii) the certificates for all tendered Shares, in proper form for transfer (or
a Book-Entry Confirmation with respect to all tendered Shares), together with a
properly completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof), with any required signature guarantees (or, in the case of a
book-entry transfer, an Agent's Message in lieu of the Letter of Transmittal),
and any other required documents must be received by the Depositary within three
trading days after the date of execution of such Notice of Guaranteed Delivery.
A "trading day" is any day on which the New York Stock Exchange is open for
business.
The term "Agent's Message" means a message, transmitted by the
Book-Entry Transfer Facility to, and received by, the Depositary and forming a
part of a Book-Entry Confirmation, which states that such Book-Entry Transfer
Facility has received an express acknowledgment from the participant in such
Book-Entry Transfer Facility tendering the Shares which are the subject of such
Book-Entry Confirmation, that such participant has received and agrees to be
bound by the terms of the Letter of Transmittal and that Purchaser may enforce
such agreement against the participant.
The signatures on this Letter of Transmittal cover the Shares tendered
hereby.
THE METHOD OF DELIVERY OF THE SHARES, THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. THE SHARES
WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION).
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 tenders will be accepted, and
no fractional Shares will be purchased. All tendering stockholders, by executing
this Letter of Transmittal (or a manually signed facsimile thereof), waive any
right to receive any notice of acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the number of Shares tendered and the
certificate numbers with respect to such Shares should be listed on a separate
signed schedule attached hereto.
4. PARTIAL TENDERS (NOT APPLICABLE TO STOCKHOLDERS WHO TENDER BY
BOOK-ENTRY TRANSFER). If fewer than all the Shares evidenced by any certificate
delivered to the Depositary herewith are to be tendered hereby, fill in the
number of Shares that are to be tendered in the box entitled "Number of Shares
Tendered." In any such case, new certificate(s) for the remainder of the Shares
that were evidenced by the old certificates will be sent to the registered
holder, unless otherwise provided in the appropriate box on this Letter of
Transmittal, as soon as practicable after the Expiration Date, or the expiration
of any Subsequent Offering Period, or the termination of the Offer. All Shares
represented by certificates 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
Shares tendered hereby, the signature(s) must correspond with the name(s) as
written on the face of the certificate(s) without alteration, enlargement or any
change whatsoever.
If any of the Shares tendered hereby are held of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal or any stock certificate or stock power
is signed 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 should so indicate when signing, and proper evidence
satisfactory to Purchaser of the authority of such person to so act must be
submitted. If this Letter of Transmittal is signed by the registered holder(s)
of the Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment or certificates for any Shares
not tendered or not accepted for payment are to be issued in the name of a
person other than the registered holder(s). Signatures on any such certificates
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 Shares evidenced by certificates listed and
transmitted hereby, the certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on the certificates. Signature(s) on any such
certificates or stock powers must be guaranteed by an Eligible Institution.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this
Instruction 6, Purchaser will pay all stock transfer taxes with respect to the
transfer and sale of any Shares to it or its order pursuant to the Offer. If,
however, payment of the purchase price of any Shares purchased is to be made to,
or if certificates for any Shares not tendered or not accepted for payment are
to be registered in the name of, any person other than the registered holder(s),
or if tendered certificates 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 other
person) payable on account of the transfer to such other person will be deducted
from the purchase price of such Shares purchased unless evidence satisfactory to
Purchaser 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 the certificates evidencing the Shares
tendered hereby.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the
purchase price of any Shares accepted for payment is to be issued in the name
of, and/or certificates for any Shares not accepted for payment or not tendered
are to be issued in the name of and/or returned to, a person other than the
signer of this Letter of Transmittal or if a check is to be sent, and/or such
certificates are to be returned, to a person other than the signer of this
Letter of Transmittal, or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed. Any
stockholder(s) delivering Shares by book-entry transfer may request that Shares
not purchased be credited to such account maintained at the Book-Entry Transfer
Facility as such stockholder(s) may designate in the box entitled "Special
Payment Instructions." If no such instructions are given, any such Shares not
purchased will be returned by crediting the account at the Book-Entry Transfer
Facility designated above as the account from which such Shares were delivered.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance or additional copies of the Offer to Purchase, this Letter of
Transmittal, the Notice of Guaranteed Delivery and the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may be
directed to the Information Agent or the Dealer Manager at the addresses and
phone numbers set forth below, or to brokers, dealers, commercial banks or trust
companies.
9. WAIVER OF CONDITIONS. Subject to the Offer to Purchase, Purchaser
reserves the absolute right in its sole discretion to waive, at any time or from
time to time, any of the specified conditions of the Offer, in whole or in part,
in the case of any Shares tendered.
10. BACKUP WITHHOLDING. In order to avoid "backup withholding" of
Federal income tax on payments of cash pursuant to the Offer, a stockholder
surrendering Shares in the Offer must, unless an exemption applies, provide the
Depositary with such stockholder's correct taxpayer identification number
("TIN") on Substitute Form W-9 in this Letter of Transmittal and certify, under
penalties of perjury, that such TIN is correct. If a tendering stockholder is
subject to backup withholding, such stockholder must cross out item (2) of the
Certification box on the Substitute Form W-9.
Backup withholding is not an additional income tax. Rather, the amount
of the backup withholding can be credited against the Federal income tax
liability of the person subject to the backup withholding, provided that the
required information is given to the IRS. If backup withholding results in an
overpayment of tax, a refund can be obtained by the stockholder upon filing an
income tax return.
The stockholder is required to give the Depositary the TIN (i.e.,
social security number or employer identification number) of the record owner of
the Shares. If the Shares are held in more than one name or are not in the name
of the actual owner, consult the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional guidance
on which number to report.
If the tendering stockholder has not been issued a TIN and has applied
for a TIN or intends to apply for a TIN in the near future, such stockholder
should write "Applied For" in the space provided for the TIN in Part 1 of the
Substitute Form W-9 and sign and date the Substitute Form W-9, and the
stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the Certificate of Awaiting Taxpayer Identification Number
is completed, the Depositary will withhold 31% on all payments made prior to the
time a properly certified TIN is provided to the Depositary. However, such
amounts will be refunded to such stockholder if a TIN is provided to the
Depositary within 60 days.
Certain stockholders (including, among others, all corporations and
certain foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign stockholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the stockholder should
notify the Depository.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE
HEREOF) TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A
BOOK-ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST
BE RECEIVED BY THE DEPOSITARY BEFORE THE EXPIRATION DATE OR THE EXPIRATION OF
ANY SUBSEQUENT OFFERING PERIOD, AND EITHER CERTIFICATES FOR TENDERED SHARES MUST
BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT TO THE
PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE BEFORE THE EXPIRATION DATE OR
THE EXPIRATION OF ANY SUBSEQUENT OFFERING PERIOD, OR THE TENDERING STOCKHOLDERS
MUST COMPLY WITH THE PROCEDURES FOR GUARANTEED DELIVERY.
IMPORTANT TAX INFORMATION
Under Federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required to provide the Depositary (as payer) with such
stockholder's correct taxpayer identification number on Substitute Form W-9
below. If such stockholder is an individual, the TIN is his or her social
security number. If the Depositary is not provided with the correct TIN, the
stockholder may be subject to a $50 penalty imposed by the Internal Revenue
Service. In addition, payments that are made to such stockholder with respect to
Shares purchased pursuant to the Offer may be subject to backup withholding of
31%.
Certain stockholders (including, among others, all corporations, and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, that stockholder must submit a statement, signed under
penalties of perjury, attesting to that individual's exempt status. Such
statements can be obtained from the Depositary. Exempt stockholders, other than
foreign individuals, should furnish their TIN, write "Exempt" on the face of the
Substitute Form W-9 below, and sign, date and return the Substitute Form W-9 to
the Depositary. See the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional instructions.
If backup withholding applies, the Depositary is required to withhold
31% of any payments made to the stockholder. Backup withholding is not an
additional tax. Rather, the 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.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a
stockholder with respect to Shares purchased pursuant to the Offer, the
stockholder is required to notify the Depositary of such stockholder's correct
taxpayer identification number by completing the form contained herein
certifying that the TIN provided on Substitute Form W-9 is correct (or that such
stockholder is awaiting a TIN).
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the social security
number or employer identification number of the record owner of the Shares. If
the Shares are in more than one name or are not in the name of the actual owner,
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 for additional guidance on which number to report.
If the tendering stockholder has not been issued a TIN and has applied for a TIN
or intends to apply for a TIN in the near future, such stockholder should write
"Applied For" in the space provided for the TIN in Part 1 of the Substitute Form
W-9 and sign and date the Substitute Form W-9, and the stockholder or other
payee must also complete the Certificate of Awaiting Taxpayer Identification
Number below in order to avoid backup withholding. Notwithstanding that the
Certificate of Awaiting Taxpayer Identification Number is completed, the
Depositary will withhold 31% on all payments made before a properly certified
TIN is provided to the Depositary. However, such amounts will be refunded to
such stockholder if a TIN is provided to the Depositary within 60 days.
PAYER'S NAME: BANKERS TRUST COMPANY
Name
----------------------------------------------------------------------------
SUBSTITUTE Address
FORM W-9
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(NUMBER AND STREET)
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(ZIP
CODE) (CITY) (STATE)
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PART 1(a) -- PLEASE PROVIDE YOUR TIN TIN -------------------------------
IN THE BOX AT RIGHT AND CERTIFY BY ------------------------------------
SIGNING AND DATING BELOW TIN SOCIAL SECURITY NUMBER OR
EMPLOYER IDENTIFICATION NUMBER
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DEPARTMENT OF THE TREASURY PART 1(b) -- PLEASE CHECK THE BOX AT RIGHT IF YOU HAVE APPLIED FOR, AND ARE
INTERNAL REVENUE SERVICE AWAITING RECEIPT OF YOUR TIN [ ]
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PART 2 -- FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING PLEASE WRITE "EXEMPT"
HERE (SEE INSTRUCTIONS)
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PAYER'S REQUEST FOR TAXPAYER PART 3 -- CERTIFICATION UNDER PENALTIES OF PERJURY, I CERTIFY THAT (X) The
IDENTIFICATION NUMBER (TIN) number shown on this form is my correct TIN (or I am waiting for a number to
AND CERTIFICATION be issued to me), and (Y) 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 (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.
Certification of Instructions -- You must cross out Item (Y) of Part 3 above
if you have been notified by the IRS that you are currently subject to backup
withholding because of underreporting interest or dividends on your tax
return. 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 (Y).
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SIGNATURE
SIGN HERE [ARROW] ----------------------------------------------------------------------------
DATE
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% 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 1(b)
OF THE SUBSTITUTE FORM W-9 INDICATING YOU HAVE APPLIED FOR,
AND ARE AWAITING RECEIPT OF, YOUR TIN.
CERTIFICATION OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and that (1) I mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (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 to the Payer by the
time of payment, 31 percent of all reportable payments made to me pursuant to
this Offer will be withheld.
- ------------------------------------------------------------ ----------
Signature Date
MANUALLY SIGNED FACSIMILE COPIES OF THE LETTER OF TRANSMITTAL WILL BE
ACCEPTED. THE LETTER OF TRANSMITTAL, CERTIFICATES FOR THE SHARES AND ANY OTHER
REQUIRED DOCUMENTS SHOULD BE SENT OR DELIVERED BY EACH STOCKHOLDER OF THE
COMPANY OR SUCH STOCKHOLDER'S BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR
OTHER NOMINEE TO THE DEPOSITARY AT ONE OF ITS ADDRESSES SET FORTH ON THE FIRST
PAGE.
Questions and requests for assistance or for additional copies of the
Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery
and other tender offer materials may be directed to the Information Agent or the
Dealer Manager at their respective telephone numbers and locations listed below,
and will be furnished promptly at Purchaser's expense. You may also contact your
broker, dealer, commercial bank, trust company or other nominee for assistance
concerning the Offer.
SCHEDULE 1
DIRECTORS AND EXECUTIVE OFFICERS OF
H-QUOTIENT, INC.
DIRECTORS AND EXECUTIVE OFFICERS OF H-QUOTIENT, INC. The following tables set
forth the name and principal occupation of each director and executive officer
of H-Quotient, Inc. The business address of each such person is at 8150 Leesburg
Pike, Suite 503, Vienna, VA 22180 and the business telephone number of each such
person is (703) 716-0100, and each such person is a citizen of the United States
of America.
Douglas A. Cohn Chairman of the Board and Chief Executive
Officer of this Company since October, 1999
(Officer and Director)
Jack N. Anderson Director since April, 2000.
J. Brian Copley Director since April, 2000