EXHIBIT (d)(2)
LETTER OF TRANSMITTAL
TO PURCHASE LIMITED PARTNERSHIP UNITS
OF
SIERRA PACIFIC DEVELOPMENT FUND
A CALIFORNIA LIMITED PARTNERSHIP
TENDERED PURSUANT TO THE OFFER TO PURCHASE
DATED _____________, 1999
OF JOHN N. GALARDI
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| DESCRIPTION OF LIMITED PARTNERSHIP UNITS ("UNITS") TENDERED |
| |
| NAME(S) AND ADDRESS(ES) OF UNITS TENDERED |
| REGISTERED HOLDER(S) |
| _______________________________________* |
| |
| * Unless otherwise indicated, it will be |
| assumed that all Units held by a |
| TENDERING registered holder are being |
| tendered. See Instruction 2. |
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| THIS OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., PACIFIC TIME, ON |
| _________, _________, 1999, UNLESS THE OFFER IS EXTENDED. |
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This Letter of Transmittal is to be executed and returned to Gemisys Corporation
(the "Depositary") at one of the following addresses:
BY MAIL OR OVERNIGHT BY HAND: BY FACSIMILE FOR INFORMATION
COURIER
Gemisys Corporation Gemisys Corporation Gemisys Corporation Gemisys
7103 South Revere Parkway 7103 South Revere Fax: (303) 705-6171 Corporation
Englewood, Colorado 80112 Parkway Attention: Investor Tel: (303)
Attention: Investor Englewood, Colorado Services 705-3261
Services / Sierra Pacific 80112
Development Fund Attention: Investor
Services / Sierra
Pacific Development Fund
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE LISTED
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY BEFORE COMPLETING THE
LETTER OF TRANSMITTAL
Ladies and Gentlemen:
The undersigned hereby tenders to John N. Galardi, an individual (the "Bidder"),
the above-described Limited Partnership Units (the "Units") for Sierra Pacific
Development Fund (the "Partnership") pursuant to the Bidder's offer to purchase
at a price per Unit of $60.00, net to the seller in cash, in accordance with the
terms and subject to the conditions set forth in the Offer to Purchase, dated
__________, 1999 (the "Offer to Purchase"), receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which together constitute the
"Offer").
Subject to, and effective upon, acceptance for payment of and payment for the
Units tendered herewith 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 any such extension or amendment), the undersigned hereby
sells, assigns and transfers to, or upon the order of, the Bidder all right,
title and interest in and to all the Units that are being tendered hereby (and
any and all other Units or other securities issued or issuable in respect
thereof on or after ___________, 1999 (collectively, "Distributions")) and
constitutes and appoints the Depositary the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Units and all
Distributions, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), to (a) transfer
ownership of such Units and all Distributions to or upon the order of the
Bidder, (b) present such Units and all Distributions for registration and
transfer on the books of the Partnership and (c) receive all benefits and
otherwise exercise all rights of beneficial ownership of such Units and all
Distributions, all in accordance with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned (i) has
received and reviewed the Offer to Purchase and (ii) has full power and
authority to tender, sell, assign and transfer the Units tendered hereby and all
Distributions and that, when and to the extent the same are accepted for payment
by the Bidder, the Bidder will acquire good, marketable and unencumbered 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 claims. The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Depositary or the Bidder to be necessary or desirable to complete
the sale, assignment and transfer of the Units tendered hereby and all
Distributions. In addition, the undersigned shall promptly remit and transfer to
the Depositary for the account of the Bidder any and all other Units or other
securities issued to the undersigned on or after _____________, 1999 in respect
of Units tendered hereby, accompanied by appropriate documentation of transfer,
and pending such remittance or appropriate assurance thereof, the Bidder shall
be entitled to all rights and privileges as owner of any such other Units or
other securities and may withhold the entire consideration of deduct from the
consideration the amount of value thereof as determined by the Bidder, in its
sole discretion.
The undersigned (i) has been advised that the Bidder is the owner of 50%
of the outstanding capital and voting stock and a director of CGS Real Estate
Company, Inc., of which S-P Properties, Inc., the General Partner of the
Partnership, is a wholly-owned subsidiary, and that the General Partner of the
Partnership makes no recommendation as to whether or not the undersigned should
tender his or her Units in the Offer and (ii) has made his or her own decision
to tender the Units.
The undersigned understands that, notwithstanding any other provisions of
the Offer and subject to the applicable rules of the Securities and Exchange
Commission, the Bidder will not be required to accept for payment or pay for any
Units tendered, and may terminate or amend the Offer or may postpone the
acceptance for payment of or payment for Units tendered, if at any time on or
after ____________, 1999, and before acceptance for payment of or payment for
any such Units, any of the following events shall have occurred (or shall have
been determined by the Bidder in its sole judgment to have occurred) regardless
of the circumstances giving rise thereto (including any action or omission to
act by the Bidder):
(a) there shall have been threatened, instituted or pending any action or
proceeding by any government or governmental, regulatory or administrative
agency or authority or tribunal or any other person, domestic or foreign, or
before any court, authority, agency or tribunal that (i) challenges or seeks
to challenge the acquisition of Units pursuant to the Offer or otherwise in
any manner relates to or affects the Offer or (ii) in the sole judgment of
the Bidder, could materially and adversely affect the business, condition
(financial or other), income, operations or prospects of the Partnership, or
otherwise materially impair in any way the contemplated future conduct of the
business of the Partnership or materially impair the contemplated benefits of
the Offer to the Bidder;
(b) there shall have been any action threatened, pending or taken, or
approval withheld, withdrawn or abrogated or any statute, rule, regulation,
judgment, order or injunction threatened, proposed, sought, promulgated,
enacted, entered, amended, enforced or deemed to be applicable to the Offer
or the Partnership, by any legislative body, court, authority, agency or
tribunal which, in the Bidder's sole judgment, would or might directly or
indirectly (i) make the acceptance for payment of, or payment for, some or
all of the Units illegal or otherwise restrict or prohibit consummation of
the Offer, (ii) delay or restrict the ability of the Bidder, or render the
Bidder unable, to accept for payment or pay for some or all of the Units,
(iii) imposes or seeks to impose limitations on the ability of the Bidder to
acquire or hold or to exercise full rights of ownership of the Units, (iv)
materially impair the contemplated benefits of the Offer to the Bidder or (v)
materially affect the business, condition (financial or other), income,
operations or prospects of the Partnership, or otherwise materially impair in
any way the contemplated future conduct of the business of the Partnership;
(c) it shall have been publicly disclosed or the Bidder shall have learned
that any person or "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) has acquired or proposes to acquire beneficial ownership of
more than 5% of the outstanding Units;
(d) there shall have occurred (i) any general suspension of trading in, or
limitation on prices for, securities on any national securities exchange or
in the over-the-counter market, (ii) any significant decline in the general
level of market prices of equity securities in the United States or abroad,
(iii) any change in the general political, market, economic or financial
condition in the United States or abroad that could have a material adverse
effect on the Partnership's business, condition (financial or other), income,
operations or prospects, (iv) the declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States or any
limitation on, or any event which, in the Bidder's sole judgment, might
affect, the extension of credit by lending institutions in the United States,
(v) the commencement of a war, armed hostilities or other international or
national crisis directly or indirectly involving the United States or (vi) in
the case of any of the foregoing existing at the time of the commencement of
the Offer, in the Bidder's sole judgment, a material acceleration or
worsening thereof;
(e) a tender or exchange offer with respect to some or all of the Units
(other than the Offer) or a merger, acquisition or other business combination
proposal for the Partnership, shall have been proposed, announced or made;
(f) there shall have occurred any event or events that have resulted, or
may in the sole judgment of the Bidder result, in an actual or threatened
change in the business, condition (financial or other), income, operations,
stock ownership or prospects of the Partnership; or materially impair the
contemplated benefits of the Offer;
(g) there shall have occurred any decline in the S&P Composite 500 Stock
Index by an amount in excess of 15% measured from the close of business on
____________, 1999; or
(h) the Offeror shall not have received the approval of the Partnership to
the assignment to the Offeror of the Units tendered pursuant to the Offer;
and, in the sole judgment of the Bidder, such event or events make it
undesirable or inadvisable to proceed with the Offer or with such acceptance for
payment or payment. Any of the foregoing conditions may be waived by the Bidder,
in whole or in part, at any time and from time to time in its sole discretion.
The failure by the Bidder at any time to exercise any of the foregoing rights
shall not be deemed a waiver of any such right and each such right shall be
deemed an ongoing right which may be asserted at any time and from time to time.
Any determination by the Bidder concerning the events described above will be
final and binding on all parties.
The undersigned hereby irrevocably appoints John N. Galardi, the attorney and
proxy of the undersigned, with full power of substitution, to vote in such
manner as such attorney and proxy or his substitute shall, in his sole
discretion, deem proper, and otherwise act (including pursuant to written
consent) with respect to all of the Units tendered hereby which have been
accepted for payment by the Company prior to the time of such vote or action
(and any and all non-cash distribution, other Units, securities, issued or
issuable in respect thereof on or after ______________, 1999), which the
undersigned is entitled to vote, at any meeting (whether annual or special and
whether or not an adjourned meeting) of limited partners of the Partnership, or
with respect to which the undersigned is empowered to act in connection with
action by written consent in lieu of any such meeting or otherwise. This proxy
is irrevocable and is grant in consideration of, and is effective upon, the
acceptance for payment of such Units by the Bidder, in accordance with the terms
of the Offer. Such acceptance for payment shall revoke any other proxy granted
by the undersigned at any time with respect to such Units (and any non-cash
distribution, other Units or securities) and no subsequent proxies will be given
(and if given, will be deemed not to be effective) with respect thereto by the
undersigned. The Bidder reserves the right to require that in order for Units to
be properly tendered, immediately upon acceptance of such Units for purchase by
the Bidder, the Bidder is able to exercise full voting rights with respect to
such Units.
All authority herein conferred or agreed to be conferred shall not be affected
by, and shall survive the death or incapacity of the undersigned, and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned. Except as
stated in the Offer, this tender is irrevocable.
The undersigned understands that tenders of Units pursuant to any one of the
procedures described in 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 the Units being tendered within the
meaning of Rule 14e-4 promulgated under the Securities Exchange Act of 1934, as
amended, and (ii) the tender of such Units complies with Rule 14e-4. The
Bidder's acceptance for payment of Units tendered pursuant to the Offer will
constitute a binding agreement between the undersigned and the Bidder upon the
terms and subject to the conditions of the Offer.
Please issue the payment for the Units in the name(s) of the undersigned.
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please mail the check for the Purchase Price of any Units purchased to the
undersigned at the address shown below the undersigned's signature(s).
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| |
|TENDER OF UNITS IN OFFER |
| |
|The Undersigned tenders Units in the Offer on the terms described above. |
| |
|SIGN HERE IMPORTANT: COMPLETE AND SIGN THE |
| SUBSTITUTE FORM W-9 (SEE INSTRUCTION 8) |
| |
| SIGNATURE(S)________________________________________________________________ |
| |
| |
| SIGNATURE(S)________________________________________________________________ |
| |
| |
| MEDALLION GUARANTEE ________________________________________________________ |
| |
| |
| DATE: ________________________ TELEPHONE NUMBER: (___)_______ |
| |
|(Must be signed by registered holder(s) as name(s) appear(s) under|
|registration above. If signature is by trustees, executors, administrators,|
|guardians, attorneys-in-fact, agent, officers of corporations or others acting|
|in a fiduciary or representative capacity, please provide the following|
|information. See Instruction 3). |
| |
|NAME (S)_____________________________________________________________________ |
| (please print) |
| |
|NAME (S)_____________________________________________________________________ |
| (please print) |
| |
|CAPACITY (FULL TITLE)________________________________________________________ |
| |
| |
|Address______________________________________________________________________ |
| |
|_____________________________________________________________________________ |
| (Include Zip Code) |
| |
|Area Code and Telephone No.__________________________________________________ |
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| SPECIAL MAILING INSTRUCTIONS |
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| |
|To be completed ONLY if payment is to be issued to the registered holder(s)|
|but mailed to OTHER than the address of record. (See Instruction 5). |
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| |
|Mail payment to:_____________________________________________________________ |
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| |
|Name:________________________________________________________________________ |
| (Must be same as registered holder(s)) |
| |
|______________________________________________________________________________|
| |
|Address:______________________________________________________________________|
| |
| ____________________________________________________________________________|
| (Please print) Zip Code |
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| | PART 1 - PLEASE PROVIDE YOUR | Tax Identification Number |
|SUBSTITUTE | TIN IN THE BOX AT RIGHT AND | (Social Security Number or|
| | CERTIFY BY SIGNING AND | Employer Identification |
|Form W-9 | DATING BELOW. | Number) |
| | | _________________________|
| | | |
| |----------------------------------------------------------|
| | |
|Department of the |PART 2 - Check the box if you are not subject to backup|
|Treasury Internal |withholding because (1) you have not been notified that|
|Revenue Service |you are subject to backup withholding as a result of|
| |failure to report all interest or dividends or (2) the|
| |Internal Revenue Service has notified you that you are no|
| |longer subject to backupwithholding. |_| |
| ----------------------------------------------------------|
| |
|Payer's Request Certification - Under penalties of PART 3 |
|for Taxpayer perjury, I certify that the |
|Identification information provided on this form is Awaiting TIN |_| |
|Number (TIN) true, correct and complete. |
| |
|Signature______________________________________ Date________________________ |
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NOTE: FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY CASH PAYMENT MADE TO UNITHOLDERS. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. IF THE BOX IN PART 3 OF THE
SUBSTITUTE FORM W-9 IS CHECKED, THE CERTIFICATE BELOW MUST BE COMPLETED.
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| 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 if I do not provide a taxpayer identification number by the|
|time of payment, 31% of any cash payment made to me will be withheld, but that|
|such amount will be refunded to me if I then provide a Taxpayer Identification|
|Number within sixty (60) days. |
| |
|Signature______________________________________ Date________________________ |
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INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. DELIVERY OF LETTER OF TRANSMITTAL. A properly completed and duly
executed Letter of Transmittal and any other documents required by this Letter
of Transmittal, must be received by the Depositary at its address set forth
herein on or prior to the First Expiration Date (as defined in the Offer to
Purchase}.
The method of delivery of this Letter of Transmittal and all other
required documents, is at the option and risk of the tendering Unitholder and
the delivery will be deemed made only when actually received by the Depositary.
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 timely delivery.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Units will be accepted for payment or purchased. All tendering
Unitholders, by execution of this Letter of Transmittal, waive any right to
receive any notice of the acceptance of their Units for payment.
2. PARTIAL TENDERS. If fewer than all the Units held by a Unitholder are
to be tendered, (i) fill in the number of Units which are to be tendered in the
section entitled "Number of Units Tendered" and (ii) the Unitholder must hold at
least five Units after such tender. Accordingly, a Unitholder should not tender
if, as a result of such tender, the tendering holder (other than one
transferring all of his or her Units) will hold less than five Units. All Units
held by a Unitholder will be deemed to have been tendered unless otherwise
indicated.
3. SIGNATURES ON LETTER OF TRANSMITTAL.
(a) If this Letter of Transmittal is signed by the registered holder(s) of
the Units, the signature(s) must correspond exactly with the Unitholder's
registration.
(b) If any of the Units are owned of record by two or more joint owners,
all such owners must sign this Letter of Transmittal.
(c) If any Units are registered in different names, it will be necessary
to complete, sign and submit as many separate Letters of Transmittal as there
are different registrations.
(d) If this Letter of Transmittal 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 if requested, proper evidence satisfactory to the
Company of such person's authority so to act must be submitted.
4. STOCK TRANSFER TAXES. Except as set forth in this Instruction 4, the
Company will pay or cause to be paid any stock transfer taxes with respect to
the transfer and sale of Units to it or its order pursuant to the Offer. If
payment of the purchase price is to be made to any person other than the
registered holder, the amount of any stock transfer taxes (whether imposed on
the registered holder 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.
5. SPECIAL MAILING INSTRUCTIONS. If payment for the Units is to be issued
to the registered holder(s) but mailed to other than the address of record, the
section entitled "Special Mailing Instructions" must be completed.
6. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to, or additional copies of the Offer to Purchase and this
Letter of Transmittal may be obtained from, the Depositary or the Soliciting
Agent at their respective addresses set forth below.
7. IRREGULARITIES. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance of any tender of Units will be
determined by the Company, in its sole discretion, and its determination shall
be final and binding. The Company reserves the absolute right to reject any or
all tenders of any particular Units (i) determined by it not to be in the
appropriate form or (ii) the acceptance for purchase of Units which may, in the
opinion of the Company's counsel, be unlawful.
8. SUBSTITUTE FORM W-9. The tendering Unitholder is required to provide
the Depositary with a correct Taxpayer Identification Number ("TIN") on
Substitute Form W-9 which is provided in the Letter of Transmittal and to
indicate that the Unitholder is not subject to backup withholding by checking
the box in Part 2 of the form. Failure to provide the information on the
Substitute Form W-9 may subject the tendering Unitholder to 31 % federal income
tax withholding on the payment of the purchase price. To prevent backup
withholding, each tendering Unitholder must provide his or her correct TIN by
completing the Substitute Form W-9, certifying that the TIN provided is correct
and that (i) the Unitholder has not been notified by the Internal Revenue
Service that he or she is subject to backup withholding as a result of failure
to report all interest or dividends or (ii) the Internal Revenue Service has
notified the Unitholder that he or she is no longer subject to backup
withholding, or certify that such Unitholder is exempt from backup withholding.
If the Unitholder does not have a TIN, he or she should consult the Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 for
instructions on applying for a TIN, check the box in Part 3 of the Substitute
Form W-9 and complete the Certificate of Awaiting Taxpayer Identification
Number. If the Unitholder provides his or her TIN to the Depositary within 60
days of the date the Depositary receives the Letter of Transmittal, any amounts
withheld during such 60-day period will be refunded to the Unitholder by the
Depositary.
WHAT TAXPAYER IDENTIFICATION NUMBER TO GIVE THE DEPOSITARY
The Unitholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Units. If
the Units are in more than one name or are not in the name of the actual owner,
consult the Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional guidelines on which number to report.
Certain Unitholders (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 Unitholder must submit a statement, signed under penalties of
perjury, attesting to that individual's exempt status. Such statements can be
obtained from the Depositary. See the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional information.
IMPORTANT: THIS LETTER OF TRANSMITTAL. TOGETHER WITH ALL OTHER REQUIRED
DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY ON OR PRIOR TO THE EXPIRATION
DATE.
THE DEPOSITARY
GEMISYS CORPORATION
7103 South Revere Parkway
Englewood, Colorado 80112
(303) 705-3261