LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
GRYPHON HOLDINGS INC.
PURSUANT TO THE OFFER TO PURCHASE,
DATED OCTOBER 20, 1998
AND THE SUPPLEMENT
THERETO DATED
DECEMBER 3, 1998
BY
MG ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
MARKEL CORPORATION
THE OFFER, AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON FRIDAY, DECEMBER 18, 1998, UNLESS THE OFFER IS
EXTENDED.
THE DEPOSITARY FOR THE OFFER IS:
FIRST UNION NATIONAL BANK
FACSIMILE TRANSMISSION:
(704) 590-7628
CONFIRM BY TELEPHONE:
(704) 590-7408
IF BY FIRST CLASS MAIL IF BY REGISTERED MAIL, CERTIFIED IF BY HAND ONLY
MAIL OR OVERNIGHT DELIVERY
First Union National Bank First Union National Bank First Union National Bank
1525 West W.T. Harris Blvd. 1525 West W.T. Harris Blvd. 5th Floor
Reorg. Department Reorg. Department 40 Broad Street
3c3-NC-1153 3c3-NC-1153 New York, NY 10004
Charlotte, NC 28288-1153 Charlotte, NC 28262
DELIVERY OF THIS REVISED LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST
SIGN THIS REVISED LETTER OF TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE THE
SUBSTITUTE FORM W-9 PROVIDED BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS REVISED LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS REVISED LETTER OF TRANSMITTAL IS COMPLETED.
THIS REVISED LETTER OF TRANSMITTAL IS TO BE COMPLETED BY SHAREHOLDERS OF
GRYPHON HOLDINGS INC. EITHER IF CERTIFICATES EVIDENCING COMMON SHARES AND/OR
RIGHTS (EACH AS DEFINED BELOW) ARE TO BE FORWARDED HEREWITH, OR IF DELIVERY OF
COMMON SHARES AND/OR RIGHTS IS TO BE MADE BY BOOK-ENTRY TRANSFER TO THE
DEPOSITARY'S ACCOUNT AT THE DEPOSITORY TRUST COMPANY (THE "BOOK-ENTRY TRANSFER
FACILITY") PURSUANT TO THE BOOK-ENTRY TRANSFER PROCEDURE DESCRIBED IN
"PROCEDURES FOR TENDERING COMMON SHARES" OF THE OFFER TO PURCHASE (AS DEFINED
BELOW). DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE
WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
Shareholders who have previously tendered Common Shares pursuant to the
Offer using the previously circulated Letter of Transmittal or the Notice of
Guaranteed Delivery and who have not properly withdrawn such Common Shares for
the purposes of the Offer, as amended, need not take any further action.
Holders of Common Shares will be required to tender one Right for each
Common Share tendered to effect a valid tender of such Common Share. Until the
Distribution Date (as defined in the Offer to Purchase) has occurred, the
Rights are
1
represented by and transferred with the Common Shares. Accordingly, if the
Distribution Date does not occur prior to the Expiration Date (as defined in
the Offer to Purchase), a tender of Common Shares will constitute a tender of
the associated Rights. If a Distribution Date has occurred, certificates
representing a number of Rights equal to the number of Common Shares being
tendered must be delivered to the Depositary in order for such Common Shares to
be validly tendered. If a Distribution Date has occurred, a tender of Common
Shares without Rights constitutes an agreement by the tendering shareholder to
deliver certificates representing a number of Rights equal to the number of
Common Shares tendered pursuant to the Offer (as defined in the Offer to
Purchase) to the Depositary within three Nasdaq National Market trading days
after the date such certificates are distributed. Purchaser reserves the right
to require that it receive such certificates prior to accepting Common Shares
for payment. Payment for Common Shares tendered and purchased pursuant to the
Offer to Purchase will be made only after timely receipt by the Depositary of,
among other things, such certificates, if such certificates have been
distributed to holders of Common Shares. Purchaser will not pay any additional
consideration for the Rights tendered pursuant to the Offer to Purchase.
Shareholders whose certificates for Common Shares and, if applicable,
Rights, are not immediately available or who cannot deliver such certificates
and all other documents required hereby to the Depositary prior to the
Expiration Date or who cannot complete the procedure for delivery by book-entry
transfer on a timely basis and who wish to tender their Common Shares and
Rights must do so pursuant to the guaranteed delivery procedure described in
"Procedures for Tendering Common Shares" of the Offer to Purchase. See
Instruction 2.
2
[ ] CHECK HERE IF TENDERED COMMON SHARES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE DEPOSITARY'S ACCOUNT AT THE DEPOSITORY TRUST COMPANY AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution:
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If Delivered by Book-Entry Transfer to The Depository Trust Company:
Account Number:
-------------------------------------------------------------
Transaction Code Number:
----------------------------------------------------
[ ] CHECK HERE IF TENDERED RIGHTS ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
TO THE DEPOSITARY'S ACCOUNT AT THE DEPOSITORY TRUST COMPANY AND COMPLETE
THE FOLLOWING:
Name of Tendering Institution:
----------------------------------------------
If Delivered by Book-Entry Transfer to The Depository Trust Company:
Account Number:
-------------------------------------------------------------
Transaction Code Number:
----------------------------------------------------
[ ] CHECK HERE IF TENDERED COMMON SHARES ARE BEING TENDERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s):
--------------------------------------------
Window Ticket Number (if any):
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Date of Execution of Notice of Guaranteed Delivery:
-------------------------
Name of Institution which Guaranteed Delivery:
------------------------------
If Delivered by Book-Entry Transfer to The Depository Trust Company:
Account Number:
-------------------------------------------------------------
Transaction Code Number:
----------------------------------------------------
[ ] CHECK HERE IF TENDERED RIGHTS ARE BEING TENDERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s):
--------------------------------------------
Window Ticket Number (if any):
----------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
-------------------------
Name of Institution which Guaranteed Delivery:
------------------------------
If Delivered by Book-Entry Transfer to The Depository Trust Company:
Account Number:
-------------------------------------------------------------
Transaction Code Number:
----------------------------------------------------
3
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK)
DESCRIPTION OF COMMON SHARES TENDERED
COMMON SHARE CERTIFICATE(S) TENDERED
(ATTACH ADDITIONAL LIST IF NECESSARY)
TOTAL NUMBER OF COMMON SHARES
CERTIFICATE NUMBER(S)* REPRESENTED BY CERTIFICATE(S) NUMBER OF COMMON SHARES TENDERED**
TOTAL COMMON SHARES ...............................................
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Common Shares being delivered to the Depositary are being
tendered. See Instruction 4.
4
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK)
DESCRIPTION OF RIGHTS TENDERED
RIGHTS CERTIFICATE(S) TENDERED*
(ATTACH ADDITIONAL LIST IF NECESSARY)
TOTAL NUMBER OF RIGHTS REPRESENTED
CERTIFICATE NUMBER(S)** BY CERTIFICATE(S) NUMBER OF RIGHTS TENDERED***
TOTAL RIGHTS ...................................................................
*If the tendered Rights are represented by separate Rights Certificates, provide the certificate numbers of such Rights
Certificates. Shareholders tendering Rights which are not represented by separate certificates will need to submit an
additional Letter of Transmittal if Rights Certificates are distributed.
**Need not be completed by shareholders tendering by book-entry transfer.
***Unless otherwise indicated, it will be assumed that all Rights being delivered to the Depositary are being tendered. See
Instruction 4.
The names and addresses of the registered holders should be printed, if
not already printed above, exactly as they appear on the certificates
representing Common Shares and/or Rights tendered hereby. The certificates and
number of Common Shares and/or Rights that the undersigned wishes to tender
should be indicated in the appropriate boxes.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE INSTRUCTIONS SET
FORTH IN THIS REVISED LETTER OF TRANSMITTAL CAREFULLY.
5
LADIES AND GENTLEMEN:
The undersigned hereby tenders to MG Acquisition Corp., a Delaware
corporation ("Purchaser") and a wholly owned subsidiary of Markel Corporation,
a Virginia corporation, the above described shares of common stock, par value
$0.01 per share (the "Common Shares"), of Gryphon Holdings Inc., a Delaware
corporation (the "Company"), including the associated Junior Participating
Cumulative Preferred Stock Purchase Rights (including any successors thereto,
the "Rights") issued pursuant to the Rights Agreement, dated as of June 5,
1995, as amended as of July 28, 1998, October 22, 1998 and November 25, 1998,
between the Company and State Street Bank and Trust Company, as Rights Agent
(as such agreement may be further amended and including any successor
agreement, the "Rights Agreement"), pursuant to Purchaser's offer to purchase
all of the outstanding Common Shares, including the associated Rights, at a
price of $19.00 per Common Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated October 20, 1998 (the "Offer to Purchase"), the Supplement
thereto, dated December 3, 1998 (the "Supplement") receipt of which is hereby
acknowledged, and in this revised Letter of Transmittal (which, as amended from
time to time, together constitute the "Offer"). Unless the context requires
otherwise, all references herein to the Common Shares shall include the
associated Rights, and all references to the Rights shall include the benefits
that may inure to the holders of the Rights pursuant to the Rights Agreement,
including the right to receive any payment due upon redemption of the Rights.
The undersigned understands that Purchaser reserves the right to transfer
or assign, in whole at any time, or in part from time to time, to one or more
of its affiliates, the right to purchase all or any portion of the Common
Shares and/or Rights tendered pursuant to the Offer, but any such transfer or
assignment will not relieve Purchaser of its obligations under the Offer and
will in no way prejudice the rights of tendering shareholders to receive
payment for Common Shares validly tendered and accepted for payment pursuant to
the Offer.
Subject to, and effective upon, acceptance for payment of the Common
Shares and Rights tendered herewith, in accordance with the terms 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, Purchaser all right, title and interest in
and to all the Common Shares and Rights that are being tendered hereby (and any
and all non-cash dividends, distributions, rights, other Common Shares or other
securities issued or issuable in respect thereof or declared, paid or
distributed in respect of such Common Shares on or after October 20, 1998
(collectively, "Distributions")), and irrevocably appoints the Depositary the
true and lawful agent and attorney-in-fact of the undersigned with respect to
such Common Shares, Rights and all Distributions, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to (i) deliver certificates for such Common Shares
(individually, a "Common Share Certificate"), Rights and all Distributions, or
transfer ownership of such Common Shares, Rights and all Distributions on the
account books maintained by the Book-Entry Transfer Facility, together, in
either case, with all accompanying evidence of transfer and authenticity to, or
upon the order of Purchaser, (ii) present such Common Shares, Rights and all
Distributions for transfer on the books of the Company and (iii) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Common Shares, Rights and all Distributions, all in accordance with the terms
of the Offer.
If, on or after the date of the Offer to Purchase, the Company should
declare or pay any dividend on the Common Shares or make any distribution
(including, without limitation, the issuance of additional Common Shares
pursuant to a stock dividend or stock split, the issuance of other securities
or the issuance of rights for the purchase of any securities) with respect to
the Common Shares that is payable or distributable to shareholders of record on
a date prior to the transfer to the name of Purchaser or its nominee or
transferee on the Company's stock transfer records of the Common Shares
purchased pursuant to the Offer, then, subject to the provisions of Section 13
of the Offer to Purchase, (i) the purchase price per Common Share payable by
Purchaser pursuant to the Offer will be reduced by the amount of any such cash
dividend or cash distribution and (ii) any such non-cash dividend, distribution
or right to be received by the tendering shareholder will be received and held
by such tendering shareholder for the account of Purchaser and will be required
to be remitted promptly and transferred by each such tendering shareholder to
the Depositary for the account of Purchaser, accompanied by appropriate
documentation of transfer. Pending such remittance and subject to applicable
law, Purchaser will be entitled to all rights and privileges as owner of any
such non-cash dividend, distribution or right and may withhold the entire
purchase price or deduct from the purchase price the amount of value thereof,
as determined by Purchaser in its sole discretion.
By executing this revised Letter of Transmittal, the undersigned
irrevocably appoints Alan I. Kirshner, Anthony F. Markel and Steven A. Markel
as proxies of the undersigned, each with full power of substitution, to the
full extent of the undersigned's rights with respect to the Common Shares and
Rights tendered by the undersigned and accepted for payment by Purchaser (and
any and all Distributions). All such proxies shall be considered coupled with
an interest in the tendered Common Shares and Rights. This appointment will be
effective if, when, and only to the extent that Purchaser accepts such Common
Shares and Rights for payment pursuant to the Offer. Upon such acceptance for
payment, all prior proxies given
6
by the undersigned with respect to such Common Shares, Rights, Distributions
and other securities will, without further action, be revoked, and no
subsequent proxies may be given. The individuals named above as proxies will,
with respect to the Common Shares, Rights, Distributions and other securities
for which the appointment is effective, be empowered to exercise all voting and
other rights of the undersigned as they in their sole discretion may deem
proper at any annual, special, adjourned or postponed meeting of Company
shareholders, by written consent or otherwise, and Purchaser reserves the right
to require that, in order for Common Shares, Rights, Distributions or other
securities to be deemed validly tendered, immediately upon Purchaser's
acceptance for payment of such Common Shares and Rights, Purchaser or
Purchaser's designee must be able to exercise full voting rights with respect
to such Common Shares and Rights.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Common Shares
and Rights tendered hereby and all Distributions, that the undersigned own(s)
the Common Shares and Rights tendered hereby within the meaning of Rule 14e-4
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that such tender of Common Shares complies with Rule 14e-4
under the Exchange Act, and that, when such Common Shares and Rights are
accepted for payment by Purchaser, Purchaser will acquire good, marketable and
unencumbered title thereto and to all Distributions, free and clear of all
liens, restrictions, charges and encumbrances, and that none of such Common
Shares, Rights and Distributions will be subject to any adverse claim. The
undersigned, upon request, shall execute and deliver all additional documents
deemed by the Depositary or Purchaser to be necessary or desirable to complete
the sale, assignment and transfer of the Common Shares and Rights tendered
hereby and all Distributions. In addition, the undersigned shall remit and
transfer promptly to the Depositary for the account of Purchaser all
Distributions in respect of the Common Shares and Rights tendered hereby,
accompanied by appropriate documentation of transfer, and, pending such
remittance and transfer or appropriate assurance thereof, Purchaser shall be
entitled to all rights and privileges as owner of each such Distribution and
may withhold the entire purchase price of the Common Shares and Rights tendered
hereby or deduct from such purchase price the amount or value of such
Distribution as determined by Purchaser in its sole discretion.
No authority herein conferred or agreed to be conferred shall be affected
by, and all such authority shall survive, the death or incapacity of the
undersigned. All obligations of the undersigned hereunder shall be binding upon
the heirs, executors, personal and legal representatives, administrators,
trustees in bankruptcy, successors and assigns of the undersigned. Except as
stated in the Offer to Purchase, this tender is irrevocable.
The undersigned understands that tenders of Common Shares and Rights
pursuant to any one of the procedures described in "Procedures for Tendering
Common Shares" of the Offer to Purchase as supplemented by Section 2 of the
Supplement and in the Instructions hereto will constitute the undersigned's
acceptance of the terms and conditions of the Offer. Purchaser's acceptance for
payment of Common Shares and Rights tendered pursuant to the Offer will
constitute a binding agreement between the undersigned and Purchaser upon the
terms and subject to the conditions of the Offer. The undersigned recognizes
that under certain circumstances set forth in the Offer to Purchase and the
Supplement, Purchaser may not be required to accept for payment any of the
Common Shares and Rights tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the purchase price and/or return any
certificates evidencing Common Shares or Rights not tendered or accepted for
payment, in the name(s) of the registered holder(s) appearing above under
"Description of Common Shares Tendered." Similarly, unless otherwise indicated
in the box entitled "Special Delivery Instructions," please mail the check for
the purchase price and/or return any certificates evidencing Common Shares or
Rights not tendered or accepted for payment (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing above
under "Description of Common Shares Tendered." In the event that the boxes
entitled "Special Payment Instructions" and "Special Delivery Instructions" are
both completed, please issue the check for the purchase price and/or return any
certificates for Common Shares or Rights not purchased or not tendered or
accepted for payment in the name(s) of, and mail such check and/or return such
certificates to, the person(s) so indicated. Unless otherwise indicated herein
in the box entitled "Special Payment Instructions," please credit any Common
Shares or Rights tendered hereby and delivered by book-entry transfer, but
which are not purchased, by crediting the account at the Book-Entry Transfer
Facility. The undersigned recognizes that Purchaser has no obligation, pursuant
to the Special Payment Instructions, to transfer any Common Shares or Rights
from the name of the registered holder(s) thereof if Purchaser does not accept
for payment any of the Common Shares or Rights tendered hereby.
7
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7 OF THIS REVISED
LETTER OF TRANSMITTAL)
To be completed ONLY if certificates for Common Shares and/or Rights not
tendered or not purchased and/or the check for the purchase price of Common
Shares and/or Rights purchased are to be issued in the name of someone other
than the undersigned, or if the Common Shares and/or Rights delivered by
book-entry transfer which are not purchased are to be returned by credit to an
account maintained at a Book-Entry Transfer Facility other than that designated
above.
Issue check and/or certificate(s) to:
Name
----------------------------------------------------------------------
(Please print)
Address
--------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------
(Tax Identification or Social Security Number)
(Also complete Substitute Form W-9 below)
[ ] Credit unpurchased Common Shares and/or Rights delivered by book-entry
transfer to The Depository Trust Company
---------------------------------------------------------------------------
(Account Number)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7 OF THIS REVISED
LETTER OF TRANSMITTAL)
To be completed ONLY if certificates for Common Shares and/or Rights not
tendered or not purchased and/or the check for the purchase price of Common
Shares and/or Rights purchased are to be sent to someone other than the
undersigned, or to the undersigned at an address other than that shown above.
Mail check and/or certificates to:
Name
----------------------------------------------------------------------
(Please Print)
Address
--------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------
(Tax Identification or Social Security Number)
(also complete Substitute Form W-9 below)
8
PLEASE SIGN HERE
(Complete Substitute Form W-9 on Reverse)
SIGN
SIGN
HERE HERE
------------------------------------------------------------------
- -
------------------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Dated: ----------- , 19-
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
Common Share certificate(s) or on a security position listing or by
person(s) authorized to become registered holder(s) by certificates and
documents transmitted herewith. If signature is by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or
others acting in a fiduciary or representative capacity, please provide
the following information. See Instruction 5).
Name(s):
-----------------------------------------------------------
(Please print)
Capacity (full title):
----------------------------------------------------
Address:
------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
------------------------------------------
Tax Identification or Social Security Number:
-----------------------------
------------------------------------------------------------------
(Complete Substitute Form W-9 on Reverse)
Guarantee of Signature(s)
(See instructions 1 and 5)
Authorized Signature:
---------------------------------------------------
Name:
-------------------------------------------------------------
(Please print)
Title:
--------------------------------------------------------------
Name of Firm:
--------------------------------------------------------
Address:
------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone
Number:
------------------------------------------
Dated: , 19-
----------
9
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this revised Letter of Transmittal must be guaranteed by a firm
which is a bank, broker, dealer, credit union, savings association or other
entity that is a member in good standing of the Securities Transfer Agents
Medallion Program (each, an "Eligible Institution"). No signature guarantee is
required on this revised Letter of Transmittal (a) if this revised Letter of
Transmittal is signed by the registered holder(s) (which term, for purposes of
this document, shall include any participant in a Book-Entry Transfer Facility
whose name appears on a security position listing as the owner of Common Shares
or Rights) of Common Shares and/or Rights tendered herewith, unless such
holder(s) has completed either the box entitled "Special Delivery Instructions"
or the box entitled "Special Payment Instructions" on the reverse hereof, or
(b) if such Common Shares or Rights are tendered for the account of an Eligible
Institution. See Instruction 5. If a certificate evidencing Common Shares
and/or Rights (a "Certificate") is registered in the name of a person other
than the signer of this revised Letter of Transmittal, or if payment is to be
made, or a Certificate not accepted for payment or not tendered is to be
returned, to a person other than the registered holder(s), then the Certificate
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
Certificate, with the signature(s) on such Certificate or stock powers
guaranteed as described above. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND COMMON SHARE CERTIFICATES. This
revised Letter of Transmittal is to be used either if Certificates are to be
forwarded herewith or if Common Shares and/or Rights are to be delivered by
book-entry transfer pursuant to the procedure set forth in "Procedures for
Tendering Common Shares" of the Offer to Purchase. Certificates evidencing all
tendered Common Shares and/or Rights, or confirmation of a book-entry transfer
of such Common Shares and/or Rights, if such procedure is available, into the
Depositary's account at the Book-Entry Transfer Facility pursuant to the
procedures set forth in "Procedures for Tendering Common Shares" of the Offer
to Purchase, together with a properly completed and duly executed revised
Letter of Transmittal (or facsimile thereof) with any required signature
guarantees (or, in the case of a book-entry transfer, an Agent's Message, as
defined below) and any other documents required by this revised Letter of
Transmittal, must be received by the Depositary at one of its addresses set
forth on the reverse hereof prior to the Expiration Date (as defined in "Terms
of the Offer; Expiration Date" of the Offer to Purchase). If Certificates are
forwarded to the Depositary in multiple deliveries, a properly completed and
duly executed revised Letter of Transmittal must accompany each such delivery.
Shareholders whose Certificates are not immediately available, who cannot
deliver their Certificates and all other required documents to the Depositary
prior to the Expiration Date or who cannot complete the procedure for delivery
by book-entry transfer on a timely basis may tender their Common Shares or
Rights pursuant to the guaranteed delivery procedure described in "Procedures
for Tendering Common Shares" of the Offer to Purchase as supplemented by
Section 2 of the Supplement. Pursuant to such procedure: (i) such tender must
be made by or through an Eligible Institution; (ii) a properly completed and
duly executed Notice of Guaranteed Delivery, substantially in the form provided
by Purchaser herewith, must be received by the Depositary prior to the
Expiration Date; and (iii) in the case of a guarantee of Common Shares or
Rights, the Certificates, in proper form for transfer, or a confirmation of a
book-entry transfer of such Common Shares or Rights, if such procedure is
available, into the Depositary's account at the Book-Entry Transfer Facility,
together with a properly completed and duly executed revised Letter of
Transmittal (or manually signed facsimile thereof) with any required signature
guarantees (or, in the case of a book-entry transfer, an Agent's Message), and
any other documents required by this revised Letter of Transmittal, must be
received by the Depositary within three Nasdaq National Market trading days
after the date of execution of the Notice of Guaranteed Delivery, all as
described in "Procedures for Tendering Common Shares" of the Offer to Purchase.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by the Depositary and forming a part of the
Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has
received an express acknowledgment from the participant in the Book-Entry
Transfer Facility tendering the Common Shares or Rights, that such participant
has received and agrees to be bound by the terms of this revised Letter of
Transmittal and that Purchaser may enforce such agreement against the
participant.
THE METHOD OF DELIVERY OF THIS REVISED LETTER OF TRANSMITTAL, CERTIFICATES
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY
TRANSFER FACILITY, IS AT THE SOLE OPTION AND RISK OF THE TENDERING SHAREHOLDER,
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 ENSURE TIMELY DELIVERY.
10
No alternative, conditional or contingent tenders will be accepted and no
fractional Common Shares or Rights will be purchased. By execution of this
revised Letter of Transmittal (or a facsimile hereof), all tendering
shareholders waive any right to receive any notice of the acceptance of their
Common Shares or Rights for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Common Shares Tendered" is inadequate, the Certificate numbers, the number of
Common Shares or Rights evidenced by such Certificates and the number of Common
Shares or Rights tendered should be listed on a separate schedule and attached
hereto.
4. PARTIAL TENDERS. (Not applicable to shareholders who tender by
book-entry transfer.) If fewer than all the Common Shares or Rights evidenced
by any Certificate delivered to the Depositary herewith are to be tendered
hereby, fill in the number of Common Shares or Rights which are to be tendered
in the box entitled "Number of Common Shares Tendered." In such cases, new
Certificate(s) evidencing the remainder of the Common Shares or Rights that
were evidenced by the Certificates delivered to the Depositary herewith will be
sent to the person(s) signing this revised Letter of Transmittal, unless
otherwise provided in the box entitled "Special Delivery Instructions," as soon
as practicable after the expiration or termination of the Offer. All Common
Shares or Rights evidenced by Certificates delivered to the Depositary will be
deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this revised Letter of Transmittal is signed by the registered holder(s) of the
Common Shares or Rights tendered hereby, the signature(s) must correspond with
the name(s) as written on the face of the Certificate(s) evidencing such Common
Shares or Rights without alteration, enlargement or any other change
whatsoever.
If any Common Shares or Rights tendered hereby are owned of record by two
or more persons, all such persons must sign this revised Letter of Transmittal.
If any of the Common Shares or Rights tendered hereby are registered in
the names of different holders, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal as there are different
registrations of such certificates.
If this revised Letter of Transmittal is signed by the registered
holder(s) of the Common Shares or Rights tendered hereby, no endorsements of
Certificates or separate stock powers are required, unless payment is to be
made to, or Certificates evidencing Common Shares or Rights not tendered or not
purchased are to be issued in the name of, a person other than the registered
holder(s), in which case, the Certificate(s) evidencing the Common Shares or
Rights tendered 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 such Certificate(s). Signatures on such Certificate(s)
and stock powers must be guaranteed by an Eligible Institution.
If this revised Letter of Transmittal is signed by a person other than the
registered holder(s) of the Common Shares or Rights tendered hereby, the Common
Share or Rights Certificate(s) evidencing the Common Shares or Rights tendered
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
such Certificate(s). Signatures on such Certificate(s) and stock powers must be
guaranteed by an Eligible Institution.
If this revised Letter of Transmittal or any Certificate(s) or stock power
is signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, such person should so indicate when signing, and
proper evidence satisfactory to Purchaser of such person's authority so to act
must be submitted.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction
6, Purchaser will pay all stock transfer taxes with respect to the sale and
transfer of any Common Shares or Rights to it or its order pursuant to the
Offer. If, however, payment of the purchase price of any Common Shares or
Rights purchased is to be made to, or Certificate(s) evidencing Common Shares
or Rights not tendered or not purchased are to be issued in the name of, a
person other than the registered holder(s), the amount of any stock transfer
taxes (whether imposed on the registered holder(s), such other person or
otherwise) payable on account of the transfer to such other person will be
deducted from the purchase price of such Common Shares or Rights purchased,
unless evidence satisfactory to Purchaser of the payment of such taxes, or
exemption therefrom, is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATE(S) EVIDENCING THE COMMON
SHARES TENDERED HEREBY.
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7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the purchase
price of any Common Shares or Rights tendered hereby is to be issued, or
Certificate(s) evidencing Common Shares or Rights not tendered or not purchased
are to be issued, in the name of a person other than the person(s) signing this
revised Letter of Transmittal or if such check or any such Certificate is to be
sent to someone other than the person(s) signing this revised Letter of
Transmittal or to the person(s) signing this revised Letter of Transmittal but
at an address other than that shown in the box entitled "Description of Common
Shares Tendered," the appropriate boxes on this revised Letter of Transmittal
must be completed. Shareholders tendering Common Shares or Rights by book-entry
transfer may request that Common Shares or Rights not purchased be credited to
such account maintained at the Book-Entry Transfer Facility as such shareholder
may designate in the box entitled "Special Payment Instructions" on the reverse
hereof. If no such instructions are given, all such Common Shares or Rights not
purchased will be returned by crediting the account at the Book-Entry Transfer
Facility from which such Common Shares or Rights were delivered.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to the Information Agent or the Dealer Manager at their
respective addresses or telephone numbers set forth below. Additional copies of
the Offer to Purchase, the Supplement, this revised Letter of Transmittal, the
Notice of Guaranteed Delivery and the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 may be obtained from the
Information Agent or the Dealer Manager or from brokers, dealers, commercial
banks or trust companies.
9. SUBSTITUTE FORM W-9. Each tendering shareholder is required to provide
the Depositary with a correct Taxpayer Identification Number ("TIN") on the
Substitute Form W-9 which is provided under "Important Tax Information" below,
and to certify, under penalties of perjury, that such number is correct and
that such shareholder is not subject to backup withholding of federal income
tax. If a tendering shareholder has been notified by the Internal Revenue
Service that such shareholder is subject to backup withholding, such
shareholder must cross out item (2) of the Certification box of the Substitute
Form W-9, unless such shareholder has since been notified by the Internal
Revenue Service that such shareholder is no longer subject to backup
withholding. Failure to provide the information on the Substitute Form W-9 may
subject the tendering shareholder to 31% federal income tax withholding on the
payment of the purchase price of all Common Shares or Rights purchased from
such shareholder. If the tendering shareholder has not been issued a TIN and
has applied for one or intends to apply for one in the near future, such
shareholder should write "Applied For" in the space provided for the TIN in
Part I of the Substitute Form W-9, and sign and date the Substitute Form W-9.
If "Applied For" is written in Part I and the Depositary is not provided with a
TIN within 60 days, the Depositary will withhold 31% on all payments of the
purchase price to such shareholder until a TIN is provided to the Depositary.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Common Shares or Rights has been lost, destroyed or stolen, the
shareholder should promptly notify the Depositary. The shareholder will then be
instructed as to the steps that must be taken in order to replace the
certificate(s). This revised Letter of Transmittal and related documents cannot
be processed until the procedures for replacing lost or destroyed certificates
have been followed.
IMPORTANT: THIS REVISED LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF),
PROPERLY COMPLETED AND DULY EXECUTED, WITH ANY REQUIRED SIGNATURE GUARANTEES,
OR AN AGENT'S MESSAGE (TOGETHER WITH COMMON SHARE CERTIFICATES OR CONFIRMATION
OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A PROPERLY
COMPLETED AND DULY EXECUTED NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY
THE DEPOSITARY PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE OFFER TO
PURCHASE).
IMPORTANT TAX INFORMATION
Under the federal income tax law, a shareholder whose tendered Common
Shares or Rights are accepted for payment is required by law to provide the
Depositary (as payer) with such shareholder's correct TIN on Substitute Form
W-9 below. If such shareholder is an individual, the TIN is such shareholder's
social security number. If the Depositary is not provided with the correct TIN,
the shareholder may be subject to a $50 penalty imposed by the Internal Revenue
Service. In addition, payments that are made to such shareholder with respect
to Common Shares or Rights purchased pursuant to the Offer may be subject to
backup withholding of 31%.
Certain shareholders (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, such individual must submit a statement, signed under
penalties of perjury, attesting to such individual's exempt status. Forms of
such statements can be obtained from the Depositary. See the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional instructions.
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If backup withholding applies with respect to a shareholder, the
Depositary is required to withhold 31% of any payments made to such
shareholder. Backup withholding is not an additional tax. Rather, the tax
liability of persons subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a shareholder
with respect to Common Shares or Rights purchased pursuant to the Offer, the
shareholder is required to notify the Depositary of such shareholder's correct
TIN by completing the form below certifying (a) that the TIN provided on
Substitute Form W-9 is correct (or that such shareholder is awaiting a TIN),
and (b) that (i) such shareholder has not been notified by the Internal Revenue
Service that such shareholder is subject to backup withholding as a result of a
failure to report all interest or dividends or (ii) the Internal Revenue
Service has notified such shareholder that such shareholder is no longer
subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The shareholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Common
Shares or Rights tendered hereby. If the Common Shares or Rights are in more
than one name or are not in the name of the actual owner, consult the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional guidance on which number to report. If the tendering
shareholder has not been issued a TIN and has applied for a number or intends
to apply for a number in the near future, the shareholder should write "Applied
For" in the space provided for the TIN in Part I, and sign and date the
Substitute Form W-9. If "Applied For" is written in Part I and the Depositary
is not provided with a TIN within 60 days, the Depositary will withhold 31% of
all payments of the purchase price to such shareholder until a TIN is provided
to the Depositary.
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PAYER'S NAME: FIRST UNION NATIONAL BANK, DEPOSITARY
PART 1 -- PLEASE PROVIDE YOUR TIN IN Social Security Number
THE BOX AT RIGHT OR__________________________________
SUBSTITUTE AND CERTIFY BY SIGNING AND DATING Employer Identification Number
BELOW. (If awaiting TIN write "Applied For")
FORM W-9
Department of the Treasury
Internal Revenue Service
PART 2 -- For Payees Exempt from
Backup Withholding,
see the enclosed Guidelines and
complete as instructed
therein.
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
Taxpayer Identification Num- ber has not been issued to me and either (a) I have mailed or
delivered an application to receive a Taxpayer Identi- fication Number to the appropriate
Internal Revenue Service ("IRS") 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 Identi- fication Number within sixty (60) days, 31% of all reportable payments made
to me thereafter will be withheld until I provide a number), and
(2) I am not subject to backup withholding because (a) I am exempt from backup withholding,
(b) I have not been notified by the IRS that I am subject to backup withholding as a result
of 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 subject to backup
with- holding because of underreporting interest or dividends on your tax return. However, if after being notified by the IRS that
you were subject to backup withholding you received another notification from the IRS that you are no longer subject to backup
withholding, do not cross out item (2). (Also see instructions in the enclosed Guidelines.)
SIGNATURE: DATE: , 19-
-------------------------------------- -----------------
NAME:
--------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDEN- TIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE "APPLIED FOR" IN THE SPACE PROVIDED FOR THE TIN IN PART I OF SUBSTITUTE
FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I CERTIFY UNDER PENALTIES OF PERJURY THAT A TAXPAYER IDENTIFICATION NUMBER HAS NOT BEEN ISSUED TO ME, AND EITHER (1) I HAVE MAILED
OR DELIVERED AN APPLICATION TO RECEIVE A TAXPAYER IDENTIFICATION NUMBER TO THE APPRO- PRIATE INTERNAL REVENUE SERVICE CENTER OR
SOCIAL SECURITY ADMINISTRATION OFFICE, OR (2) I INTEND TO MAIL OR DELIVER AN APPLICATION IN THE NEAR FUTURE. I UNDERSTAND THAT IF I
DO NOT PROVIDE A TAXPAYER IDENTIFICATION NUM- BER BY THE TIME OF PAYMENT, 31% OF ALL REPORTABLE PAYMENTS MADE TO ME WILL BE
WITHHELD.
SIGNATURE DATE , 19-
-------------------------------------- ------------------
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Questions and requests for assistance or additional copies of the Offer to
Purchase, this revised Letter of Transmittal and other tender offer materials
may be directed to the Information Agent or the Dealer Manager as set forth
below:
THE INFORMATION AGENT FOR THE OFFER IS:
[MacKenzie Partners, Inc. Logo]
156 Fifth Avenue
New York, NY 10010
Call Collect (212) 929-5500
or
CALL TOLL FREE (800) 322-2885
THE DEALER MANAGER FOR THE OFFER IS:
[Cochran, Caronia Securites LLC Logo]
1 South Wacker Drive
Chicago, Illinois 60606
(312) 425-9335
or
CALL TOLL FREE (800) 248-8163
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