1
EXHIBIT 99.(a)(1)(ii)
LETTER OF TRANSMITTAL
to Tender Shares of Common Stock
TODD SHIPYARDS CORPORATION
Pursuant to the Offer to Purchase
dated June 28, 2001
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON TUESDAY, JULY 31, 2001, UNLESS THE OFFER IS EXTENDED.
TO: US BANK
The Depositary for the offer is:
US Bank
By Mail: By Overnight Delivery: By Hand Delivery:
-------- ---------------------- -----------------
US Bank Corporate Trust US Bank Corporate Trust US Bank Corporate Trust
180 East Fifth Street 180 East Fifth Street 180 East Fifth Street
St. Paul, MN 55101 St. Paul, MN 55101 Fourth Floor
Attention: Specialized Attention: Specialized St. Paul, MN 55101
Finance Finance Attention: Specialized
Finance
------------------------
DELIVERY OF THIS INSTRUMENT AND ALL OTHER DOCUMENTS TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE ACCOMPANYING
INSTRUCTIONS, CAREFULLY BEFORE CHECKING ANY BOX BELOW.
This Letter of Transmittal is to be used only if (a) certificates for
Shares (as defined below) are to be forwarded herewith or (b) a tender of Shares
is being made concurrently by book-entry transfer to the account maintained by
the Depositary at The Depository Trust Company (the "Book-Entry Transfer
Facility") pursuant to Section 3 of the Offer to Purchase. See Instruction 2.
YOUR ATTENTION IS INVITED IN PARTICULAR TO THE FOLLOWING:
1. If you want to retain your Shares, you do not need to take any action.
2. If you want to participate in the Offer and wish to maximize the chance of
having the Company accept for exchange all the Shares you are tendering
hereby, you should check the box marked "SHARES TENDERED AT PRICE DETERMINED
PURSUANT TO THE OFFER" below and complete the other portions of this Letter
of Transmittal as appropriate.
3. If you wish to select a specific Price at which you will be tendering your
Shares, you should select one of the boxes in the section captioned "PRICE
(IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED" below and complete
the other portions of this Letter of Transmittal as appropriate.
IN ANY EVENT, YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM.
THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE OFFER OF
THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE INFORMATION AGENT AT THE
ADDRESS OR TOLL-FREE NUMBER INDICATED ON THE BACK COVER.
2
- ------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
(SEE INSTRUCTIONS 3 AND 4)
- ------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE USE PRE-ADDRESSED LABEL OR FILL IN
TENDERED CERTIFICATES EXACTLY AS NAME(S) APPEAR(S) ON TENDERED CERTIFICATES*
CERTIFICATE(S)) (ATTACH SIGNED ADDITIONAL LIST IF NECESSARY)
- ---------------------------------------------------------------------------------------------------------------
NUMBER OF
CERTIFICATE NUMBER SHARES
NUMBER(S)** OF SHARES TENDERED***
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
TOTAL SHARES TENDERED
- ------------------------------------------------------------
* In the event of pro-ration, Shares will be purchased from certificates in the order in which such
certificates are listed, from top to bottom.
** DOES NOT need to be completed if Shares are tendered by book-entry transfer.
*** If you desire to tender fewer than all Shares evidenced by any certificates listed above, please
indicate in this column the number of Shares you wish to tender. Otherwise, all Shares evidenced by such
certificates will be deemed to have been tendered. See Instruction 4.
- ------------------------------------------------------------
3
NOTE: SIGNATURE MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Stockholders who desire to tender Shares pursuant to the Offer (as defined
below) and who cannot deliver their certificates for their Shares (or who are
unable to comply with the procedures for book-entry transfer on a timely basis)
and all other documents required by this Letter of Transmittal to the Depositary
at or before the Expiration Date (as defined in the Offer to Purchase) may
tender their Shares according 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 does not constitute delivery to the Depositary.
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO
AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH ONE OF THE BOOK-ENTRY TRANSFER
FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
- --------------------------------------------------------------------------------
Account Number
- --------------------------------------------------------------------------------
Transaction Code Number
- --------------------------------------------------------------------------------
[ ]CHECK HERE IF CERTIFICATES FOR 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)
- -----------------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
- ---------------------------------------------------------
Name of Institution that Guaranteed Delivery
- ----------------------------------------------------------------
4
- --------------------------------------------------------------------------------
ODD LOTS
(SEE INSTRUCTION 9)
To be completed ONLY if the Shares are being tendered by or on behalf
of a person owning beneficially or of record, as of the close of business
on June 28, 2001 and who continues to own beneficially or of record as of
the Expiration Date, an aggregate of fewer than 100 Shares. The
undersigned either (check one box):
[ ] was the beneficial or record owner of, as of the close of business on
June 28, 2001, and continues to own beneficially or of record as of
the Expiration Date, an aggregate of fewer than 100 Shares, all of
which are being tendered; or
[ ] is a broker dealer, commercial bank, trust company, or other nominee
that (a) is tendering for the beneficial owner(s) thereof, Shares with
respect to which it is the record holder and (b) believes, based upon
representations made to it by such beneficial owner(s), that each such
person was the beneficial or record owner of, as of the close of
business on June 28, 2001, and continues to own beneficially or of
record as of the Expiration Date, an aggregate of fewer than 100
Shares and is tendering all of such Shares.
In addition, the undersigned is tendering Shares either (check one
box):
[ ] at the Purchase Price (defined below), as the same shall be determined
by the Company in accordance with the terms of the Offer (persons
checking this box need not indicate the price per Share below); or
[ ] at the price per Share indicated below under "Price (In Dollars) Per
Share At Which Shares Are Being Tendered" in this Letter of
Transmittal.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NON-ODD LOT HOLDERS
[ ] By checking this box the undersigned represents that the Shares being
tendered in response to the Offer to Purchase represent all shares
beneficially owned by the undersigned (or for the benefit of the
beneficial owner) as of the close of business on June 28, 2001
- --------------------------------------------------------------------------------
5
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
TO US BANK:
The undersigned hereby tenders to Todd Shipyards Corporation, a Delaware
corporation (the "Company"), the above described shares of the Company's $.01
par value Common Stock (the "Shares") at the price per Share indicated in this
Letter of Transmittal, net to the seller in cash, upon the terms and subject to
the conditions set forth in the Company's Offer to Purchase, dated June 28, 2001
(the "Offer to Purchase"), receipt of which is hereby acknowledged, and in this
Letter of Transmittal (which together constitute the "Offer"). Unless the
context otherwise requires, all references to the Shares shall include the
associated Rights.
Subject to and effective upon acceptance for payment of the Shares tendered
hereby in accordance with the terms and subject to the conditions of the Offer
(including, if the Offer is extended or amended, the terms and conditions of
such extension or amendment), the undersigned hereby sells, assigns and
transfers to, or upon the order of, the Company all right, title and interest in
and to all the Shares that are being tendered hereby and orders the registration
of all such Shares if tendered by book-entry transfer and hereby irrevocably
constitutes and appoints the Depositary as the true and lawful agent and
attorney-in-fact of the undersigned (with full knowledge that said Depositary
also acts as the agent of the Company) with respect to such Shares with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to:
(a) deliver certificate(s) for such Shares or transfer ownership of such
Shares on the account books maintained by any of the Book-Entry Transfer
Facilities, together in either such case with all accompanying evidences of
transfer and authenticity, to, or upon the order of, the Company upon receipt by
the Depositary, as the undersigned's agent, of the aggregate Purchase Price (as
defined below) with respect to such Shares;
(b) present certificates for such Shares for cancellation and transfer on
the Company's books; and
(c) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares, subject to the next paragraph, all in accordance with
the terms of the Offer.
The undersigned hereby represents and warrants to the Company that:
(a) the undersigned understands that tenders of Shares pursuant to any one
of the procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute the undersigned's acceptance of the terms
and conditions of the Offer, including the undersigned's representation and
warranty that:
(i) the undersigned has a net long position in Shares or equivalent
securities at least equal to the Shares tendered within the meaning of Rule
14e-4 under the Securities Exchange Act of 1934, as amended, and
(ii) such tender of Shares complies with Rule 14e-4;
(b) when and to the extent the Company accepts such Shares for purchase,
the Company will acquire good, marketable and unencumbered title to them, free
and clear of all security interests, liens, charges, encumbrances, conditional
sales agreements or other obligations relating to their sale or transfer, and
not subject to any adverse claim;
(c) on request, the undersigned will execute and deliver any additional
documents the Depositary or the Company deems necessary or desirable to complete
the assignment, transfer and purchase of the Shares tendered hereby; and
(d) the undersigned has read and agrees to all of the terms of the Offer.
All authorities conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned, and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, executors, administrators, successors, assigns,
trustees in bankruptcy, and legal representatives of the undersigned. Except as
stated in the Offer to Purchase, this tender is irrevocable.
6
The name(s) and address(es) of the registered holder(s) should be printed
above, if they are not already printed above, exactly as they appear on the
certificates representing Shares tendered hereby. The certificate numbers, the
number of Shares represented by such certificates and the number of Shares that
the undersigned wishes to tender, should be set forth in the appropriate boxes
above. The price at which such Shares are being tendered should be indicated in
the box below.
The undersigned understands that the Company will, upon the terms and
subject to the conditions of the Offer, determine a single per Share price (not
in excess of $8.25 nor less than $7.00 per Share) net to the seller in cash (the
"Purchase Price") that it will pay for Shares properly tendered and not
withdrawn prior to the Expiration Date pursuant to the Offer, taking into
account the number of Shares so tendered and the prices (in multiples of $.05)
specified by tendering stockholders. The undersigned understands that the
Company will select the lowest Purchase Price that will allow it to buy
4,000,000 Shares (or such lesser number of Shares as are properly tendered at
prices not in excess of $8.25 nor less than $7.00 per share and not withdrawn)
pursuant to the Offer. The undersigned understands that all Shares properly
tendered prior to the Expiration Date at prices at or below the Purchase Price
and not withdrawn will be purchased at the Purchase Price, upon the terms and
subject to the conditions of the Offer, including its proration provisions, and
that the Company will return all other Shares not purchased pursuant to the
Offer, including Shares tendered at prices greater than the Purchase Price and
not withdrawn prior to the Expiration Date and Shares not purchased because of
proration.
The undersigned recognizes that, under certain circumstances set forth in
the Offer to Purchase, the Company may terminate or amend the Offer or may
postpone the acceptance for payment of, or the payment for, Shares tendered or
may accept for payment fewer than all of the Shares tendered hereby. In any such
event, the undersigned understands that certificate(s) for any Shares delivered
herewith but not tendered or not purchased will be returned to the undersigned
at the address indicated above, unless otherwise indicated under the "Special
Payment Instructions" or "Special Delivery Instructions" below. The undersigned
recognizes that the Company has no obligation, pursuant to the Special Payment
Instructions, to transfer any certificate for Shares from the name of its
registered holder, or to order the registration or transfer of Shares tendered
by book-entry transfer, if the Company purchases none of the Shares represented
by, such certificate or tendered by such book-entry transfer.
The undersigned understands that acceptance of Shares by the Company for
payment will constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Offer.
The check for the aggregate net Purchase Price for such of the Shares
tendered hereby as are purchased will be issued to the order of the undersigned
and mailed to the address indicated above, unless otherwise indicated under the
Special Payment Instructions or the Special Delivery Instructions below.
7
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY. THE FOLLOWING MUST BE
COMPLETED BY ALL TENDERING STOCKHOLDERS.
- --------------------------------------------------------------------------------
CHECK ONLY ONE BOX.
IF MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS CHECKED,
THERE IS NO PROPER TENDER OF SHARES OF LIMITED COMMON STOCK.
--------------------------------------------------------------------------
SHARES TENDERED AT PRICE DETERMINED PURSUANT TO THE OFFER
[ ] I want to maximize the chance of having the Company accept for
purchase all the Shares I am tendering (subject to the possibility of
proration). Accordingly, by checking this one box INSTEAD OF ONE OF
THE PRICE BOXES BELOW, I hereby tender Shares at, and am willing to
accept, the Purchase Price resulting from the Offer Process. This
action could result in receiving a price as low as $7.00 per share.
---------------------------------- OR ----------------------------------
PRICE (IN DOLLARS) PER SHARE WHICH SHARES ARE BEING
TENDERED BY STOCKHOLDER
[ ] $7.00 [ ] $7.30 [ ] $7.65 [ ] $8.00
[ ] $7.05 [ ] $7.35 [ ] $7.70 [ ] $8.05
[ ] $7.10 [ ] $7.40 [ ] $7.75 [ ] $8.10
[ ] $7.15 [ ] $7.45 [ ] $7.80 [ ] $8.15
[ ] $7.20 [ ] $7.50 [ ] $7.85 [ ] $8.20
[ ] $7.25 [ ] $7.55 [ ] $7.90 [ ] $8.25
[ ] $7.60 [ ] $7.95
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CONDITIONAL TENDER TO AVOID PRORATION
(Applicable only in the event that proration would occur as the result of
oversubscription. Not applicable to Odd-Lot holders as defined in the
Offer to Purchase.)
CHECK NO MORE THAN ONE BOX
[ ] tender is not conditioned on purchase of any minimum number of shares.
[ ] tender is conditioned upon purchase of all shares tendered.
[ ] tender is conditioned upon purchase of not fewer than shares
(write in number).
If no box is checked, tender is not conditioned unless the number of
Shares tendered in response to the Offer to Purchase represents less than
all Shares beneficially owned as of the close of business on June 28,
2001, in which event (regardless of which box is checked) the tender is
conditioned upon the purchase by lot of the lesser of all Shares tendered
or the minimum number written above.
- --------------------------------------------------------------------------------
8
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 6, 7 AND 9)
To be completed ONLY if certificates for Shares not tendered or not purchased
and/or any check for the aggregate Purchase Price of Shares purchased are to be
issued in the name of someone other than the undersigned.
Issue: [ ] Check to: [ ] Certificates to:
Name:
- -----------------------------------------------
(Please Print)
Address:
- ---------------------------------------------
- -------------------------------------------------------
- -------------------------------------------------------
(Zip Code)
- -------------------------------------------------------
(Taxpayer Identification or Social Security Number)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 6, 7 AND 9)
To be completed ONLY if certificates for Shares not tendered or not purchased
and/or any check for the Purchase Price of Shares purchased, issued in the name
of the undersigned, are to be mailed to someone other than the undersigned at an
address other than that shown on page 1 above.
Mail: [ ] Check to: [ ] Certificates to:
Name:
- -----------------------------------------------
(Please Print)
Address:
- ---------------------------------------------
- -------------------------------------------------------
- -------------------------------------------------------
(Zip Code)
9
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL STOCKHOLDERS)
(PLEASE COMPLETE AND RETURN THE ENCLOSED SUBSTITUTE FORM W-9)
(Must be signed by the registered holder(s) exactly as name(s)
appear(s) on certificate(s) or on a security position listing or by
person(s) authorized to become registered holder(s) by certificate(s) and
documents transmitted with this Letter of Transmittal. If signature is by
a trustee, executor, administrator, guardian, attorney-in-fact, officer of
a corporation or another person acting in a fiduciary or representative
capacity, please set forth full title and see Instruction 6.)
SIGNATURE(S) OF OWNER(S)
--------------------------------------------------------------------------
Name(s):
--------------------------------------------------------------------------
(Please Print)
Capacity (full title):
--------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------
(Include zip code)
Address:
--------------------------------------------------------------------------
(Include zip code)
Area Code(s) and Telephone Number(s):
-------------------------------------------------------------------
Dated:
-----------------------------------------,
2001.
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 6)
Name of Firm:
--------------------------------------------------------------------------
Authorized Signature:
--------------------------------------------------------------------------
Name:
--------------------------------------------------------------------------
(Please Print)
Title:
--------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
--------------------------------------------------------------------------
Dated:
--------------------------------------------------------------------------
- --------------------------------------------------------------------------------
10
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required if either:
(a) this Letter of Transmittal is signed by the registered holder of the
Shares (which term, for purposes of this document, shall include any participant
in the Book-Entry Transfer Facility whose name appears on a security position
listing as the owner of such Shares) exactly as the name of the registered
holder appears on the certificate tendered with this Letter of Transmittal and
payment and delivery are to be made directly to such owner unless such owner has
completed either the box entitled "Special Payment Instructions" or "Special
Delivery Instructions" above; or
(b) such Shares are tendered for the account of a member in good standing
of the Security Transfers Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(each such entity, an "Eligible Institution").
In all other cases, an Eligible Institution must guarantee all signatures
on this Letter of Transmittal. See Instruction 6.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be used only if certificates for
Shares are delivered with it to the Depositary (or such certificates will be
delivered pursuant to a Notice of Guaranteed Delivery previously sent to the
Depositary) or if a tender for Shares is being made concurrently pursuant to the
procedure for tender by book-entry transfer set forth in Section 3 of the Offer
to Purchase. Certificates for all physically tendered Shares or confirmation of
a book-entry transfer into the Depositary's account at the Book-Entry Transfer
Facility of Shares tendered electronically, together in each case with a
properly completed and duly executed Letter of Transmittal or duly executed and
manually signed facsimile of it, and any other documents required by this Letter
of Transmittal, should be mailed or delivered to the Depositary at the
appropriate address set forth herein and must be delivered to the Depositary on
or before the Expiration Date (as defined in the Offer to Purchase). DELIVERY OF
DOCUMENTS TO ONE OF THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
Stockholders whose certificates are not immediately available or who cannot
deliver certificates for their Shares and all other required documents to the
Depositary before the Expiration Date, or whose Shares cannot be delivered on a
timely basis pursuant to the procedures for book-entry transfer, must, in any
such case, tender their Shares by or through any Eligible Institution by
properly completing and duly executing and delivering a Notice of Guaranteed
Delivery (or facsimile of it) and by otherwise complying with the guaranteed
delivery procedure set forth in Section 3 of the Offer to Purchase. Pursuant to
such procedure, certificates for all physically tendered Shares or book-entry
confirmations, as the case may be, as well as a properly completed and duly
executed Letter of Transmittal (or facsimile of it) and all other documents
required by this Letter of Transmittal, must be received by the Depositary
within three (3) New York Stock Exchange trading days after receipt by the
Depositary of such Notice of Guaranteed Delivery, all as provided in Section 3
of the Offer to Purchase.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by telegram, facsimile transmission or mail to the Depositary and must include a
signature guarantee by an Eligible Institution in the form set forth in such
Notice. For Shares to be tendered validly pursuant to the guaranteed delivery
procedure, the Depositary must receive the Notice of Guaranteed Delivery on or
before the Expiration Date.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR SHARES,
IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY.
The Company will not accept any alternative, conditional or contingent
tenders, nor will it purchase any fractional Shares, except as expressly
provided in the Offer to Purchase. All tendering stockholders, by
11
execution of this Letter of Transmittal (or a facsimile of it), waive any right
to receive any notice of the acceptance of their tender.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Shares Tendered" is inadequate, the certificate numbers and/or
the number of Shares should be listed on a separate signed schedule and attached
to this Letter of Transmittal.
4. PARTIAL TENDERS AND UNPURCHASED SHARES. (Not applicable to stockholders
who tender by book-entry transfer.) If fewer than all of the Shares evidenced by
any certificate are to be tendered, fill in the number of Shares that are to be
tendered in the column entitled "Number of Shares Tendered," in the box
captioned "Description of Shares Tendered." In such case, if any tendered Shares
are purchased, a new certificate for the remainder of the Shares (including any
Shares not purchased) evidenced by the old certificate(s) will be issued and
sent to the registered holder(s), unless otherwise specified in either the
"Special Payment Instructions" or "Special Delivery Instructions" box on this
Letter of Transmittal, as soon as practicable after the Expiration Date. Unless
otherwise indicated, all Shares represented by the certificate(s) listed and
delivered to the Depositary will be deemed to have been tendered.
5. INDICATION OF PRICE AT WHICH SHARES ARE BEING TENDERED. For Shares to be
properly tendered, the stockholder MUST check the box indicating the price per
Share at which such holder is tendering Shares under "Price (In Dollars) Per
Share at Which Shares Are Being Tendered" on this Letter of Transmittal. ONLY
ONE BOX MAY BE CHECKED. IF MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS CHECKED,
THERE IS NO PROPER TENDER OF SHARES. A stockholder wishing to tender portions of
such holder's Share holdings at different prices must complete a separate Letter
of Transmittal for each price at which such holder wishes to tender each such
portion of such holder's Shares. The same Shares cannot be tendered (unless
previously properly withdrawn as provided in Section 4 of the Offer to Purchase)
at more than one price.
6. CONDITIONAL TENDER IN THE EVENT OF PRORATION ARISING FROM
OVERSUBSCRIPTION. In the event that the Offer is over-subscribed such that the
Company will purchase fewer than all shares otherwise properly tendered, a
stockholder may elect to condition such stockholder's tender upon the Company's
purchase either of (i) all shares properly tendered by such stockholder, or (ii)
a minimum number of such shares as specified by such stockholder. In the event
such an election is made, the Company's purchase of shares from such stockholder
will not be subject to pro-ration but will be determined by lot from among all
shares which have been properly tendered and are subject to such conditions. In
the event a stockholder has properly tendered fewer than all shares beneficially
owned as of June 28, 2001, such tender will be deemed to be conditioned upon the
purchase by lot of the number of shares tendered or such lower number of shares
specified.
7. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS.
(a) If this Letter of Transmittal 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 are registered in the names of two or more joint holders,
each such holder must sign this Letter of Transmittal.
(c) If any 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 (or facsimiles of it) as there are different
registrations of certificates.
(d) When this Letter of Transmittal is signed by the registered holder(s)
of the Shares listed and transmitted hereby, no endorsement(s) of certificate(s)
representing such Shares or separate stock power(s) are required unless payment
is to be made or the certificate(s) for Shares not tendered or not purchased are
to be issued to a person other than the registered holder(s). SIGNATURE(S) ON
SUCH CERTIFICATE(S) MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION. If this
Letter of Transmittal is signed by
12
a person other than the registered holder(s) of the certificate(s) listed, or if
payment is to be made or their certificate(s) for Shares not tendered or not
purchased are to be issued to a person other than the registered holder(s), the
certificate(s) must be endorsed or accompanied by appropriate stock power(s), in
either case signed exactly as the name(s) of the registered holder(s) appears on
the certificate(s), and the signature(s) on such certificate(s) or stock
power(s) must be guaranteed by an Eligible Institution. See Instruction 1.
(e) If this Letter of Transmittal or any certificate(s) or stock power(s)
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 must submit proper
evidence satisfactory to the Company of their authority so to act.
8. STOCK TRANSFER TAXES. Except as provided in this Instruction 7, no stock
transfer tax stamps or funds to cover such stamps need accompany this Letter of
Transmittal. The Company will pay any stock transfer taxes payable on the
transfer to it of Shares purchased pursuant to the Offer. If, however:
(a) payment of the Purchase Price for Shares tendered hereby and accepted
for purchase is to be made to any person other than the registered holder(s);
(b) Shares not tendered or not accepted for purchase are to be registered
in the name(s) of any person(s) other than the registered holder(s); or
(c) tendered certificates are registered in the name(s) of any person(s)
other than the person(s) signing this Letter of Transmittal; then the Depositary
will deduct from such Purchase Price the amount of any stock transfer taxes
(whether imposed on the registered holder, such other person or otherwise)
payable on account of the transfer to such person, unless satisfactory evidence
of the payment of such taxes or any exemption therefrom is submitted.
9. ODD LOTS. As described in Section 1 of the Offer to Purchase, if the
Company is to purchase fewer than all Shares tendered before the Expiration Date
and not withdrawn, the Shares purchased first will consist of all Shares
properly tendered by any stockholder who owned beneficially or of record, as of
the close of business on June 28, 2001 and as of the Expiration Date, an
aggregate of fewer than 100 Shares, and who tenders all of such holder's Shares
at or below the Purchase Price (an "Odd Lot Holder"). This preference will not
be available unless the box captioned "Odd Lots" is completed.
10. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If certificate(s) for Shares
not tendered or not purchased and/or check(s) are to be issued in the name of a
person other than the signer of the Letter of Transmittal or if such
certificates and/or checks are to be sent to someone other than the person
signing the Letter of Transmittal or to the signer at a different address, the
boxes captioned "Special Payment Instructions" and/or "Special Delivery
Instructions" on this Letter of Transmittal should be completed as applicable
and signatures must be guaranteed as described in Instruction 1.
11. IRREGULARITIES. All questions as to the number of Shares to be
accepted, the price to be paid therefor and the validity, form, eligibility
(including time of receipt) and acceptance for payment of any tender of Shares
will be determined by the Company in its sole discretion, which determinations
shall be final and binding on all parties. The Company reserves the absolute
right to reject any or all tenders of Shares it determines not to be in proper
form or the acceptance of which or payment for which may, in the opinion of the
Company's counsel, be unlawful. The Company also reserves the absolute right to
waive any of the conditions of the Offer or any defect or irregularity in any
tender with respect to any particular Shares or any particular stockholder, and
the Company's interpretation of the terms of the Offer (including these
instructions) will be final and binding on all parties. No tender of Shares will
be deemed to be properly made until all defects and irregularities have been
cured by the tendering stockholder or waived by the Company. Unless waived, any
defects or irregularities in connection with tenders must be cured within such
time as the Company shall determine. None of the Company, the Dealer Manager (as
defined in the Offer to Purchase), the Depositary, the Information Agent (as
defined in the Offer to Purchase) or any other person is or will be obligated to
give notice of any defects or irregularities in tenders and none of them will
incur any liability for failure to give any such notice.
13
12. QUESTIONS AND REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions
and requests for assistance may be directed to, or additional copies of the
Offer to Purchase, the Notice of Guaranteed Delivery and this Letter of
Transmittal may be obtained from, the Information Agent or the Dealer Manager at
their addresses and telephone numbers set forth at the end of this Letter of
Transmittal or from your broker, dealer, commercial bank or trust company.
13. FORM W-9 AND FORM W-8. Under the United States federal income tax
backup withholding rules, unless an exemption applies under the applicable law
and regulations, 31% of the gross proceeds payable to a stockholder or other
payee pursuant to the Offer must be withheld and remitted to the United States
Internal Revenue Service ("IRS"), unless the stockholder or other payee provides
its taxpayer identification number (employer identification number or social
security number) to the Depositary (as payor) and certifies under penalty of
perjury that such number is correct. Therefore, each tendering stockholder
should complete and sign the Substitute Form W-9 included as part of the Letter
of Transmittal so as to provide the information and certification necessary to
avoid backup withholding, unless such stockholder otherwise establishes to the
satisfaction of the Depositary that it is not subject to backup withholding. If
the Depositary is not provided with the correct taxpayer identification number,
the tendering stockholder also may be subject to a penalty imposed by the IRS.
The box in part 3 of the form should be checked 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. If the box in Part 3 is checked and the Depositary is not
provided with a TIN prior to the payment of the Purchase Price, the Depositary
will withhold 31% on all such payments of the Purchase Price. If the tendering
stockholder provides the Depositary with a certified TIN within 60 days, the
amount withheld shall be refunded by the Depositary. If withholding results in
an overpayment of taxes, a refund may be obtained. Certain "exempt recipients"
(including, among others, all corporations and certain Non-United States Holders
(as defined herein)) are not subject to these backup withholding and information
reporting requirements. In order for a Non-United States Holder to qualify as an
exempt recipient, that stockholder must submit an IRS Form W-8 or a Substitute
Form W-8, signed under penalties of perjury, attesting to that stockholder's
exempt status. Such statements can be obtained from the Depositary.
14. WITHHOLDING ON NON-UNITED STATES HOLDER. Even if a Non-United States
Holder has provided the required certification to avoid backup withholding, the
Depositary will withhold United States federal income taxes equal to 30% of the
gross payments payable to a Non-United States Holder or his agent unless the
Depositary determines that a reduced rate of withholding is available pursuant
to a tax treaty or that an exemption from withholding is applicable because such
gross proceeds are effectively connected with the conduct of a trade or business
within the United States. For this purpose, a Non-United States Holder is any
stockholder that for United States federal income tax purposes is not (i) a
citizen or resident of the United States, (ii) a corporation or partnership
created or organized in or under the laws of the United States or any State or
division thereof (including the District of Columbia), (iii) an estate the
income of which is subject to United States federal income taxation regardless
of the source of such income or (iv) a trust (a) the administration over which a
United States court can exercise primary supervision and (b) all of the
substantial decisions of which one or more United States persons have the
authority to control. Notwithstanding the preceding sentence, to the extent
provided in United States Treasury Regulations, certain trusts in existence on
August 20, 1996, and treated as United States persons prior to such date, that
elect to continue to be treated as United States persons will also not be
Non-United States Holders. In order to obtain a reduced rate of withholding
pursuant to a tax treaty, a Non-United States Holder must deliver to the
Depositary before the payment a properly completed and executed IRS Form 1001.
In order to obtain an exemption from withholding on the grounds that the gross
proceeds paid pursuant to the Offer are effectively connected with the conduct
of a trade or business within the United States, a Non-United States Holder must
deliver to the Depositary a properly completed and executed IRS Form 4224. The
Depositary will determine a stockholder's status as a Non-United States Holder
and eligibility for a reduced rate of, or an exemption from, withholding by
reference to outstanding certificates or statements concerning eligibility for a
reduced rate of, or exemption from, withholding (e.g., IRS Form 1001 or IRS Form
4224) unless facts and circumstances indicate that such reliance is not
warranted. A Non-United States Holder may be eligible to obtain a refund of all
or a portion of any tax withheld if such Non-United States Holder meets the
"complete termination," "substantially disproportionate" or "not essentially
equivalent to a dividend" test described in Section 13 of
14
the Offer to Purchase or is otherwise able to establish that no tax or a reduced
amount of tax is due. Backup withholding generally will not apply to amounts
subject to the 30% or treaty-reduced rate of withholding. Non-United States
Holders are urged to consult their own tax advisors regarding the application of
United States federal income tax withholding, including eligibility for a
withholding tax reduction or exemption, and the refund procedure.
15. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary by checking the box immediately preceding the
special payment/special delivery instructions and indicating the number of
Shares so lost, destroyed or stolen, or contact the Depositary by telephone at
651-244-8161. The stockholder will then be instructed by the Depositary as to
the steps that must be taken in order to replace the certificate. This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen certificates have been followed.
IMPORTANT: This Letter of Transmittal (together with certificates for the
Shares being tendered and all other required documents), or a Notice of
Guaranteed Delivery must be received prior to 12:00 Midnight, New York City
time, on the Expiration Date.
15
THE FOLLOWING BOX MUST BE COMPLETED BY ALL TENDERING STOCKHOLDERS.
(SEE INSTRUCTION 12)
- ------------------------------------------------------------------------------------------------------------------------
PAYOR'S NAME: US BANK
- ------------------------------------------------------------------------------------------------------------------------
PART 1--PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND
SUBSTITUTE CERTIFY BY SIGNING AND DATING BELOW.
FORMW-9 For individuals, this is your social security (SSN). ----------------------------
Department of the Aliens that do not have or are not eligible to receive a Social Security Number
Treasury, Internal SSN may use your individual TIN. For other entities, Resident
Revenue Service this is your employer identification number (EIN). For
sole proprietorships, either your SSN or EIN may be OR
used. Refer to the chart on page 1 of the Guidelines for -------------------------
Certification of Taxpayer Identification Number on Employer
Substitute Form W-9 (the "Guidelines") for further Identification Number
clarification. If you do not have a TIN, see
instructions on how to obtain a TIN on page 2 of the
Guidelines, check the appropriate box in Part 3 below
indicating that you are awaiting a TIN and certify by
signing and dating below.
-------------------------------------------------------------------------------------------
PART 2--For Payees exempt from backup withholding, see the enclosed Guidelines and
PAYOR'S REQUEST FOR complete as instructed therein.
TAXPAYER IDENTIFICATION -----------------------------------------------------------------------------------------
NUMBER ("TIN") AND PART 3: Awaiting TIN [ ]
CERTIFICATION -----------------------------------------------------------------------------------------
CERTIFICATION--Under penalties of perjury, I certify that (1) the number
shown on this form is my correct TIN (or I am waiting for a number to be issued
to me); and (2) I am not subject to backup withholding because (a) I am exempt from
backup withholding, or (b) I have not been notified by the IRS that I am subject to
backup withholding as a result of a failure to report all interest or dividends; or
(c) the IRS has notified me that I am no longer subject to backup withholding.
Certification instructions--You must cross out Item (2) above if you have been notified
by
the IRS that you are currently subject to backup withholding because of underreporting
interest or dividends on your tax return (see page 2 of the Guidelines for further
clarification).
-----------------------------------------------------------------------------------------
The Internal Revenue Service does not require your consent to any provision of this
document other than certifications to avoid backup withholding.
SIGNATURE --------------------------------------------------------------------------
DATE:---------------------------------------------------------------------------------
NAME:--------------------------------------------------------------------------------
(Please Print)
ADDRESS:----------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
(Include Zip Code)
- ------------------------------------------------------------------------------------------------------------------------
FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 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.
SIGN HERE
- --------------------------------------------------------------------------------
16
THE INFORMATION AGENT FOR THE OFFER IS:
Any questions and requests for assistance or additional copies of the Offer
to Purchase, the Letter of Transmittal and related materials may be directed to
the Information Agent at its address and telephone number set forth below.
Stockholders may also contact their broker, dealer, commercial bank or trust
company for assistance concerning the Offer.
The Information Agent for the Offer is:
[MORROW & CO., INC. LOGO]
445 Park Avenue, 5th Floor
New York, New York 10022
Call Collect (212) 754-8000
Banks and Brokerage Firms Call: (800) 654-2468
Stockholders Please Call: (800) 607-0088
E-mail: todd.info@morrowco.com
The Dealer Manager for the Offer is:
U.S. BANCORP PIPER JAFFRAY, INC.
11111 Santa Monica Boulevard
Suite 1210
Los Angeles, CA 90025
Phone: (888) 466-5542