EXHIBIT 99.3
LETTER OF ACCEPTANCE
To Tender Shares of Common Stock
of
EMERGING DELTA CORPORATION
at
$12.50 Per Share
Pursuant to the Tender Offer Dated September 16, 2002
by
DELTA GAMMA ACQUISITION, LLC
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THE TENDER OFFER WILL EXPIRE AT 5:00 P.M.
CENTRAL TIME, ON OCTOBER 8, 2002, UNLESS THE TENDER OFFER IS EXTENDED
(THE "EXPIRATION DATE").
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To: Jerry W. Jarrell, Escrow Agent
By Mail or Hand Delivery:
Jerry W. Jarrell
17571 Red Oak Drive
Houston, Texas 77090-1247
Telephone: (281) 537-9602
Fax No: (281) 397-6319
Delivery of this Letter of Acceptance to an address other than as set forth
above does not constitute a valid delivery.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
This Letter of Acceptance is to be completed by shareholders who choose to
accept the Tender Offer and returned to the Escrow Agent together with
certificates evidencing tendered shares of Common Stock (the "Shares).
Shareholders whose certificates are not immediately available or who cannot
deliver their certificates for Shares and all other documents required hereby to
the Escrow Agent so that they are received prior to the Expiration Date must
tender their Shares according to the guaranteed delivery procedures described
below. See Instruction 2 of this Letter of Acceptance. Delivery of documents to
the Purchaser (as defined below) does not constitute a delivery to the Escrow
Agent.
(Shareholder name and address to go here, have labels to use)
Total number of shares owned as of August 30, 2002 ----- Check here if share
certificate is lost [ ]
You have three choices under the terms of the Tender Offer.
1. You may elect to stand pat and not tender any of your shares. If so it is
not necessary to complete this form or take any action.
2. You may tender a portion of your shares. If you elect to tender, please
check which option you choose.
[ ] 80% of your shares or _______ shares at $12.50 per share or $_________.
[ ] 40% of your shares or _______ shares at $12.50 per share or $_________
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NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
SHAREHOLDER'S AGREEMENT
Escrow Agent:
The undersigned hereby tenders to Delta Gamma Acquisition LLC, a Texas
limited liability company (the "Purchaser"), the above-described shares of
Common Stock, $1.00 par value (the "Shares"), of Emerging Delta Corporation, a
Delaware corporation (the "Company"), in each case at $12.50 per Share, net to
the seller in cash, upon the terms and subject to the conditions set forth in
the Tender Offer dated September 16, 2002 (the "Tender Offer"), receipt of which
is hereby acknowledged, and in this Letter of Acceptance.
Accordingly, the undersigned hereby deposits with you the above-described
certificates representing the Shares. Upon the terms and subject to the
conditions of the Tender Offer, and subject to, and effective upon, acceptance
for payment of and payment for the Shares validly tendered herewith in
accordance with the terms of the Tender Offer, the undersigned hereby sells,
assigns and transfers to, or upon the order of, the Purchaser, all right, title
and interest in and to all Shares tendered hereby and hereby irrevocably
constitutes and appoints the Escrow Agent as the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Shares, with full power
of substitution and resubstitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to (a) deliver certificates for
such Shares or to transfer ownership of such Shares together with all
accompanying evidences of transfer and authenticity, to or upon the order of the
Purchaser, (b) present such Shares for cancellation and transfer on the
Company's books, and (c) receive all benefits (including all dividends or
distributions resulting from any stock split, combination or exchange of Shares)
and otherwise exercise all rights of beneficial ownership of such Shares, all in
accordance with the terms of the Tender Offer.
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 that, when the same are accepted for payment by the
Purchaser, the Purchaser will acquire good and marketable title thereto, free
and clear of all liens, restrictions, charges, encumbrances, conditional sales
agreements or other obligations relating to the sale or transfer thereof, and
the same will not be subject to any adverse claim. Upon request, the undersigned
will execute and deliver any additional documents deemed by the Escrow Agent or
the Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the Shares tendered hereby.
The undersigned hereby irrevocably appoints Jerry Jarrell and Allen
Campbell and each of them, and any other designees of the Purchaser, and each of
them, the attorneys-in-fact and proxies of the undersigned, each with full power
of substitution, to the full extent of such shareholder's rights with respect to
all the Shares tendered hereby and accepted for payment by the Purchaser. The
appointment is effective when, and only to the extent that, the Purchaser
accepts such Shares for payment as provided in the Tender Offer. This power of
attorney and proxy is irrevocable and coupled with an interest and is granted in
consideration of the acceptance for payment of such Shares. Upon such
appointment, all prior powers of attorney and proxies given by the undersigned
at any time with respect to such Shares will be, without further action,
revoked, and no subsequent powers of attorney or proxies may be given with
respect thereto by the undersigned or subsequent written consents executed (and,
if given or executed, will be deemed ineffective). The undersigned understands
that the Purchaser reserves the right to require that, in order for the Shares
to be deemed validly tendered, immediately upon the Purchaser's acceptance for
payment of such Shares, the Purchaser must be able to exercise full voting or
other rights of a record and beneficial holder, including rights to execute a
written consent with respect to such Shares.
The undersigned understands that the valid tender of Shares pursuant to the
procedures described in the Tender Offer and in the Instructions hereto will
constitute a binding agreement between the undersigned and the Purchaser upon
the terms and subject to the conditions of the Tender Offer, including the
tendering shareholder's representation and warranty that such shareholder owns
the Shares tendered.
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, trustees
in bankruptcy and legal representatives, successors and assigns of the
undersigned. Except as stated in the Tender Offer, this tender is irrevocable.
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Unless otherwise indicated under "Special Payment Instructions," below,
please issue the check for the purchase price of any Shares purchased and/or
return any certificates for Shares not tendered or not accepted for payment in
the name(s) of the registered holder(s) appearing on the cover page of this
Letter of Acceptance. Similarly, unless otherwise indicated under "Special
Delivery Instructions," below, please mail the check for the purchase price for
any Shares purchased and return any certificates for Shares not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing on the cover page of this
Letter of Acceptance. In the event that both the Special Delivery Instructions
and the Special Payment Instructions are completed, please issue the check for
the purchase price and/or return any certificates for Shares not tendered or
accepted for payment in the name of, and deliver said check and/or return such
certificates to, the person or persons so indicated. The undersigned recognizes
that the Purchaser has no obligations, pursuant to the Special Payment
Instructions, to transfer any Shares from the name of the registered holder
thereof if the Purchaser does not accept for payment any of the Shares so
tendered.
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SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, 6 and 7) (See Instructions 1, 5, 6 and 7)
To be completed ONLY if certificates for Shares not To be completed ONLY if certificates for Shares not
tendered or not accepted for payment and/or the check for tendered or not accepted for payment and/or the check
the purchase price of the Shares accepted for payment are for the purchase price of the Shares accepted for
to be issued in the name of and sent to someone other payment, issued in the name of the undersigned, are to
than the undersigned. be sent to someone other than the undersigned or to the
undersigned at an address other than that shown above.
Issue: |_| Check |_| Certificate(s) to:
Mail: |_| Check |_| Certificate(s) to:
Name:____________________________________________
(Please Print) Name:____________________________________________
(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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SIGN HERE
(Also Complete Substitute Form W-9)
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(Signature(s) of Shareholder(s)
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(Signature(s) of Shareholder(s)
Dated:--------------------------------------------------------------------------
(Must be signed by registered holder(s) exactly as name(s) appear on stock
certificate(s) for the Shares or by person(s) authorized to become registered
holder (s) by certificates and documents transmitted herewith. If signature is
by an officer of a corporation, trustee, executor, administrator, guardian,
attorney-in-fact or other person acting in a fiduciary or representative
capacity, please set forth full title. See Instruction 5. For information
concerning signature guarantees see Instruction 1.)
Name(s):------------------------------------------------------------------------
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(Please Print)
Capacity (Full Title):----------------------------------------------------------
(See Instructions)
Address:------------------------------------------------------------------------
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(Include Zip Code)
Area Code and Telephone Number:-------------------------------------------------
Employer Identification or Social Security Number:------------------------------
GUARANTEE OF SIGNATURE(S)
(See Instructions 1 and 5)
Authorized Signature:-----------------------------------------------------------
Name:---------------------------------------------------------------------------
Title:--------------------------------------------------------------------------
Name of Firm:-------------------------------------------------------------------
Address:------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone No.:----------------------------------------------------
Dated:--------------------------------------------------------------------------
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PAYER'S NAME: DELTA GAMMA ACQUISITION, LLC
SUBSTITUTE
FORM W-9 Part 1 PLEASE PROVIDE YOUR TIN IN TIN___________________________
Department of the Treasury THE BOX AT RIGHT AND CERTIFY BY Social Security Number
Internal Revenue Service SIGNING AND DATING BELOW. or Employer
Identification Number
Payer's Request for Taxpayer
Identification Number ("TIN")
CERTIFICATION - UNDER PENALTIES OF PERJURY, I CERTIFY THAT (1)
the number shown on this form is my correct taxpayer
identification number (or a TIN has not been issued to me but I
have mailed or delivered an application to receive a TIN or
intend to do so in the near future), (2) I am not subject to
backup withholding either because 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 the IRS has notified me that I am no longer subject
to backup withholding, and (3) all other information provided on
this form is true, correct and complete. Part 2
NAME:------------------------------------------------------------ Awaiting TIN [ ]
(Please Print)
ADDRESS:----------------------------------------------------------
------------------------------------------------------------------
(Include Zip Code)
SIGNATURE:--------------------------------------------------------
DATE:-------------------------------------------------------------
You must cross out item (2) above if you have been notified by the IRS that you are currently subject to backup
withholding because of underreporting of interest or dividends on your tax return and you have not been notified by
the IRS that you are no longer subject to backup withholding
NOTE:FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 20% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE TENDER 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 2 OF THE SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (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 2 (and have completed
this Certificate of Awaiting Taxpayer Identification Number), all reportable
payments made to me prior to the time I provide a properly certified taxpayer
identification number to the Escrow Agent will be subject to a 20% backup
withholding tax.
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Signature Date
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INSTRUCTIONS
1. Guarantee of Signatures. No signature guarantee is required (i) if this
Letter of Acceptance is signed by the registered holder(s) of Shares tendered
herewith who has not completed either the box entitled "Special Payment
Instructions" or the box entitled "Special Delivery Instructions" on this Letter
of Acceptance or (ii) if such Shares are tendered for the account of a member
firm of a registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or trust company
having an office or correspondent in the United States (an "Eligible
Institution"). IN ALL OTHER CASES, ALL SIGNATURES ON THIS LETTER OF ACCEPTANCE
OR FACSIMILE HEREOF MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION. See
Instruction 5.
2. Delivery of Letter of Acceptance and Certificates; Guaranteed Delivery
Procedures. This Letter of Acceptance is to be used if certificates are to be
forwarded herewith. For a shareholder to tender Shares validly, a Letter of
Acceptance, properly completed and duly executed, with any required signature
guarantees and all other documents required by this Letter of Acceptance, and
certificates for all tendered Shares, must be transmitted to and received by the
Escrow Agent at the address set forth herein on or prior to the Expiration Date.
Tenders of Shares pursuant to the procedures described in the Tender Offer
and in the instructions hereto will constitute a binding agreement between the
shareholder and the Purchaser upon the terms and subject to the conditions of
the Tender Offer.
No alternative, conditional or contingent tenders will be accepted and no
fractions of Shares will be purchased. All tendering shareholders, by execution
of this Letter of Acceptance, waive any right to receive any notice of the
acceptance of their Shares for payment.
The method of delivery of this Letter of Acceptance, certificates for the
Shares, and other documents, is at the option and risk of the tendering
shareholder. Except as otherwise provided in these Instructions, the delivery of
any document will be deemed made only when actually received by the Escrow
Agent. If sent by mail, registered mail with return receipt requested, property
insured, is recommended.
3. Completion of Acceptance Box. If you elect not to tender any shares, it
is not necessary to complete this form or take any other action. If you elect to
tender shares you have two choices, to tender 80% of your shares or 40% of your
shares. Please check the appropriate box on the front page of this Letter of
Acceptance reflecting your choice. Forty percent (40%) of all Shares represented
by certificates delivered to the Escrow Agent will be deemed to have been
tendered unless otherwise indicated in the appropriate box on this Letter of
Acceptance.
4. Return of Shares. Shareholders accepting to tender either 80% or 40% of
their shares should mail share certificates along with this Letter of
Acceptance. A new certificate for the remainder of the Shares evidenced by the
shareholder's old certificate(s) will be sent to the shareholder, unless
otherwise specified in the "Special Payment Instruction" or "Special Delivery
Instructions" boxes on this Letter of Acceptance, as soon as practicable after
the Expiration Date.
5. Signatures on Letter of Acceptance, Stock Powers and Endorsements.
(a) If this Letter of Acceptance is signed by the registered holder(s) of
the Shares tendered hereby, the signature(s) must correspond exactly with the
name(s) as written on the face of the certificate)s) without any change
whatsoever.
(b) If the Shares tendered are held of record by two or more joint holders,
all such holders must sign this Letter of Acceptance.
(c) If any Shares tendered are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Acceptance as there are different registrations of certificates.
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(d) If this Letter of Acceptance is signed by the registered holder(s) of
the Shares tendered hereby, no endorsements of certificate(s) or separate stock
powers are required. If, however, payment is to be made or the certificates for
Shares not tendered or accepted for payment are to be issued to a person other
than the registered holder(s), then the certificates transmitted hereby 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. Signatures on such certificate(s) or stock power(s) must be
guaranteed by an Eligible Institution.
(e) If this Letter of Acceptance is signed by a person other than the
registered holder(s) of the certificates tendered, the certificate(s) 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. Signatures on such certificate(s) or stock power(s) required by
Instruction 1 above must be guaranteed by an Eligible Institution.
(f) If this Letter of Acceptance or any certificates or stock powers are
signed by officers of a corporation, trustees, executors, administrators,
guardians, attorneys-in-fact or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit proper
evidence satisfactory to the Purchaser of their authority so to act.
6. Special Payment and Delivery Instructions. If a check for the purchase
price of any Shares accepted for payment is to be issued, or any certificates
for Shares not tendered or not accepted for payment are to be returned, to a
person other than the person(s) signing this Letter of Acceptance of if the
check or any certificates for Shares not tendered or not accepted for payment
are to be mailed to someone other than the person(s) signing this Letter of
Acceptance, or to the person(s) signing this Letter of Acceptance at an address
other than that shown above, the appropriate boxes on this Letter of Acceptance
should be completed.
7. Stock Transfer Taxes. The Purchaser will pay all stock transfer taxes,
if any, payable on the transfer to it of Shares purchased pursuant to the Tender
Offer. If, however, payment of the purchase price is to be made to, or (in the
circumstances permitted by the Tender Offer) if Shares not accepted for payment
are to be registered in the name of, any person(s) other than the registered
holder(s), of if tendered certificates are registered in the name of any person
other than the person(s) signing this Letter of Acceptance, the amount of any
stock transfer taxes (whether imposed on the registered holders or such other
person) payable 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.
8. Irregularities. All questions as to the validity, form, eligibility
(including timeliness of receipt) and acceptance for payment of any tender of
Shares will be determined by the Purchaser, in its sole discretion, which
determination shall be final and binding. The Purchaser reserves the absolute
right to reject any or all tenders of any Shares determined by it to be not in
appropriate form or the acceptance of or payment for which may, in the opinion
of the Purchaser's counsel, be unlawful. The Purchaser also reserves the
absolute right to waive any of the conditions of the Tender Offer or any defect
or irregularity in any tender with respect to any particular Shares or any
particular shareholder, whether or not similar defects or irregularities are
waived in the case of other shareholders. The Purchaser's interpretation of the
terms and conditions of the Tender Offer (including these Instructions) shall be
final and binding on all parties. No tender of Shares will be deemed to have
been validly made until all defects and irregularities have been cured or
waived. Neither the Purchaser, the Escrow Agent or any other person will be
under any duty to give notification of any defects or irregularities in tenders,
or incur any liability for failure to give such notification.
9. Substitute Form W-9; 20% Backup Withholding. Under federal tax law, each
tendering shareholder is required, unless an exemption applies, to provide the
Escrow Agent with a correct Taxpayer Identification Number ("TIN") on Substitute
Form W-9 on this Letter of Acceptance and to certify, under penalty of perjury,
that such TIN is correct. If the correct TIN is not provided, a penalty may be
imposed by the Internal Revenue Service and payments made in exchange for the
surrendered Shares may be subject to backup withholding of 20%. The shareholder
must also certify that (a) the shareholder has not been notified by the Internal
Revenue Service that the shareholder is subject to backup withholding as a
result of failure to report all interest or dividends, or (b) the Internal
Revenue Service has notified the shareholder that the shareholder is no longer
subject to backup withholding.
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Backup withholding is not an additional federal income tax. Rather, the
federal income tax liability of persons subject to backup withholding will be
reduced by the amount of such tax withheld. If backup withholding results in an
overpayment of taxes, a refund may be obtained form the Internal Revenue
Service.
The TIN that must be provided, is that of the registered holder(s) of the
Shares or of the last transferee appearing on the transfer attached to, or
endorsed on the Shares (or, if the check is to be made payable to another person
as provided in Instruction 6, then of such person). The TIN for an individual is
his social security number. The box in Part 2 of the form may be checked if the
tendering shareholder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 2 is checked,
the person surrendering the Shares must also complete the Certificate of
Awaiting Taxpayer Identification Number in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked (and the certificate of
Awaiting Taxpayer Identification Number is completed), the Escrow Agent will
withhold 20% on all payments, if any, of the purchase price until a properly
certified TIN is provided to the Escrow Agent.
Exempt shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these federal income tax backup
withholding and reporting requirements. A foreign individual may qualify as an
exempt person by submitting a statement, signed under penalties of perjury,
certifying to such individual's foreign status. A shareholder should consult his
tax advisor about his qualification for exemption from backup withholding and
the procedure for obtaining such exemption.
10. Lost Certificates. A shareholder who elects to accept the Tender Offer
and who has lost or misplaced his share certificate will need to check the
appropriate box on page 1 of the applicable Letter of Acceptance and otherwise
fully complete and deliver such Letter of Acceptance to the Escrow Agent. A
shareholder who checks the lost certificate box will be contacted by the Stock
Transfer Agent for the Emerging Companies and asked to complete further
documentation before a new certificate can be issued. A shareholder who has lost
his certificate but who timely returns his Letters of Acceptance will be deemed
to have accepted the Tender Offer once all Stock Transfer Agent documentation
regarding the lost certificate has been completed.
11. Waiver of Conditions. The Purchaser expressly reserves the absolute
right in its sole discretion to waive any of the specified conditions of the
Tender Offer in the case of any Shares tendered.
12. Requests for Assistance or Additional Copies. Requests for assistance
or additional copies of the Tender Offer, the Letter of Acceptance, and the
Notice of Guaranteed Delivery may be directed to the Escrow Agent at the address
set forth below or to the holder's broker, dealer, commercial bank or trust
company.
IMPORTANT: This Letter of Acceptance or (together with certificates for
Shares and all other required documents) or the Notice of Guaranteed Delivery
must be received by the Escrow Agent on or prior to the Expiration Date.
the Escrow Agent for the Tender Offer is:
Jerry W. Jarrell
17571 Red Oak Drive
Houston, Texas 77090-1247
Telephone: (281) 537-9602
Fax No. (281) 397-6319
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