FORM OF ELECTION
(To accompany certificates or guarantees of delivery for
shares of Common Stock of The Leslie Fay Company, Inc.)
Please follow carefully the instructions contained below
IF YOU WANT TO RECEIVE CASH FOR SOME OR ALL OF YOUR SHARES IN THE MERGER,
THIS FORM OF ELECTION, PROPERLY COMPLETED AND EXECUTED IN ACCORDANCE WITH THE
INSTRUCTIONS CONTAINED BELOW, TOGETHER WITH YOUR CERTIFICATE(S) FOR SHARES OF
COMMON STOCK OF THE LESLIE FAY COMPANY, INC. OR A VALID GUARANTEE OF DELIVERY
THEREOF, MUST BE RECEIVED BY AMERICAN STOCK TRANSFER & TRUST COMPANY (THE
"EXCHANGE AGENT") PRIOR TO THE CLOSE OF BUSINESS (5:00 P.M., NEW YORK CITY TIME)
ON TUESDAY, AUGUST 17, 1999.
COMPLETE THIS FORM OF ELECTION ONLY IF YOU WANT TO RECEIVE CASH IN THE
MERGER FOR SOME OR ALL OF YOUR SHARES. DO NOT COMPLETE THIS FORM OF ELECTION IF
YOU WANT TO KEEP ALL OF YOUR SHARES.
NOTWITHSTANDING THE ELECTION MADE BELOW, THE NUMBER OF SHARES THAT MAY BE
CONVERTED INTO THE RIGHT TO RECEIVE CASH IN THE MERGER IS SUBJECT TO PRORATION
IN ACCORDANCE WITH THE TERMS OF THE MERGER AGREEMENT.
EXCHANGE AGENT:
AMERICAN STOCK TRANSFER & TRUST COMPANY
BY MAIL: FACSIMILE TRANSMISSION BY HAND /OVERNIGHT DELIVERY:
40 Wall Street, 46th Floor (FOR ELIGIBLE INSTITUTIONS ONLY): 40 Wall Street, 46th Floor
New York, NY 10005 (718) 234-5001 New York, NY 10005
Attention: Reorganization Department Attention: Reorganization Department
CONFIRM BY TELEPHONE:
(718) 921-8200
FOR INFORMATION CALL:
(718) 921-8200
This Form of Election, Certificates (as defined below) and any other
required documents should be sent by each holder of shares of Common Stock, par
value $.01 per share ("Common Stock"), of The Leslie Fay Company, Inc. (the
"Company") to the Exchange Agent at one of the addresses set forth above.
Delivery of this Form of Election to an address other than as set forth above or
transmission to a facsimile number other than the one listed above will not
constitute a valid delivery. The instructions accompanying this Form of Election
should be read carefully before this Form is completed. If you have any
questions regarding this Form of Election, please call the Exchange Agent toll
free in the United States at 800-937-5449 or collect at 1-718-921-8200.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
1
Ladies and Gentlemen:
The undersigned, pursuant to the terms of an Agreement and Plan of Merger
dated as of May 12, 1999 (the "Merger Agreement") among the Company, Three
Cities Fund II, L.P. ("Fund II"), Three Cities Offshore II C.V. (together with
Fund II, the "Buyers") and TCR Acquisition Sub Co., a corporation that is
wholly-owned by the Buyers ("Merger Sub"), hereby deposits, has previously
deposited with the Exchange Agent or has agreed to deliver pursuant to the
guaranteed delivery procedures set forth below the stock certificates (the
"Certificates") identified in Column 1 of Box A below representing the total
number of shares of Common Stock set forth in Column 2 of Box A, of which the
total number of shares of Common Stock set forth in Column 3 of Box A are
surrendered with the request that the total number of shares of Common Stock
listed in such column be converted into the right to receive cash in the merger
of Merger Sub into the Company (the "Merger") at the rate of $7.00 per share,
without interest, and the remainder of such shares remain shares of Common
Stock. THE UNDERSIGNED ACKNOWLEDGES THAT HE OR SHE HAS RECEIVED THE PROXY
STATEMENT OF THE COMPANY DATED JULY 30, 1999 AND UNDERSTANDS AND AGREES THAT,
NOTWITHSTANDING THE ELECTION MADE BELOW, THE NUMBER OF SHARES OF THE UNDERSIGNED
THAT MAY BE CONVERTED INTO THE RIGHT TO RECEIVE CASH IN THE MERGER IS SUBJECT TO
PRORATION IN ACCORDANCE WITH THE TERMS OF THE MERGER AGREEMENT.
Capitalized terms used but not defined herein shall have the meanings set
forth in the Proxy Statement.
NONE OF THE COMPANY, THE COMPANY'S BOARD OF DIRECTORS, THE BUYERS OR MERGER
SUB MAKES ANY RECOMMENDATION AS TO WHETHER STOCKHOLDERS OF THE COMPANY SHOULD
ELECT TO RECEIVE CASH OR KEEP THEIR SHARES OF COMMON STOCK. EACH STOCKHOLDER
MUST MAKE HIS OR HER OWN DECISION WITH RESPECT TO SUCH ELECTION.
The undersigned represents and warrants that the undersigned has full power
and authority to surrender the Certificate(s) surrendered herewith or covered by
a guarantee of delivery, free and clear of any liens, claims, charges or
encumbrances whatsoever. The undersigned understands and acknowledges that the
method of delivery of the Certificate(s) and all other required documents is at
the option and risk of the undersigned and that the risk of loss of such
Certificate(s) shall pass only after the Exchange Agent has actually received
the Certificate(s). ALL questions as to the validity, form and eligibility of
any election and surrender of the Certificate(s) hereunder shall be determined
by the Exchange Agent or the Company, and such determination shall be final and
binding. The undersigned, upon request, shall execute and deliver all additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the cancellation and retirement of the shares of Common
Stock delivered herewith or covered by a guarantee of delivery. No authority
hereby conferred or agreed to be conferred hereby 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,
personal representatives, successors and assigns of the undersigned.
The undersigned understands that if the holders of more than 2,111,966
shares of Common Stock elect to receive cash, there will be a pro rata reduction
so that all of the holders who elect to receive cash will receive cash for some
of their shares and keep the remainder of their shares. If you make an election
to receive cash and the resulting pro rata reduction would provide you with cash
for a fractional share of Common Stock, the number of shares of Common Stock for
which you will receive $7.00 per share will be rounded down to the nearest whole
share. Unless otherwise indicated in the box entitled "Special Issuance and
Payment Instructions" (Box B), please issue any check and register any
certificate for shares of Common Stock in the name of the registered holder(s)
of the shares of Common Stock appearing below. Similarly, unless otherwise
indicated in the box entitled "Special Delivery Instructions" (Box C), please
mail any check and any certificate for shares of Common Stock to the registered
holder(s) of the shares of Common Stock at the addresses of the registered
holder(s) appearing below under the box entitled "Election and Description of
Shares Deposited." In the event that the box entitled "Special Issuance and
Payment Instructions" and the box entitled "Special Delivery Instructions" both
are completed, please issue any check and any certificate for shares of Common
Stock in the name(s) of, and mail such check and such certificate to, the
person(s) so indicated.
2
THE UNDERSIGNED UNDERSTANDS AND AGREES THAT THE ACCEPTANCE AND DELIVERY OF
ANY FORMS OF ELECTION BY OR TO THE EXCHANGE AGENT (OR ANY OTHER AUTHORIZED
PERSON) WILL NOT OF ITSELF CREATE ANY RIGHT TO RECEIVE CASH IN EXCHANGE FOR THE
SHARES OF COMMON STOCK LISTED ON THIS FORM OF ELECTION AND THAT SUCH RIGHT WILL
ARISE ONLY IF THE MERGER IS CONSUMMATED AND ONLY TO THE EXTENT PROVIDED IN THE
MERGER AGREEMENT. THE UNDERSIGNED FURTHER UNDERSTANDS AND AGREES THAT THE
ELECTION MADE ON THIS FORM SHALL BE IRREVOCABLE UNLESS IT IS PROPERLY REVISED OR
WITHDRAWN IN ACCORDANCE WITH INSTRUCTION E.L. OR E.2. OF THIS FORM.
3
BOX A: ELECTION AND DESCRIPTION OF SHARES DEPOSITED
- --------------------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF HOLDER OF RECORD AS SHOWN ON RECORDS OF THE LESLIE FAY COMPANY, INC.
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
CERTIFICATE(S) DEPOSITED (ATTACH SEPARATE SCHEDULE IF NECESSARY)
- --------------------------------------------------------------------------------------------------------------
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4
NUMBER OF SHARES OF
COMMON STOCK NUMBER OF SHARES OF NUMBER OF SHARES OF
CERTIFICATE NUMBER(S) REPRESENTED BY COMMON STOCK FOR COMMON STOCK FOR
DELIVERED HEREWITH CERTIFICATES IN COLUMN 1 WHICH CASH IS ELECTED WHICH CASH IS NOT ELECTED
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
TOTAL....................
- --------------------------------------------------------------------------------------------------------------
ALL SHARES OF COMMON STOCK REPRESENTED BY CERTIFICATES LISTED IN COLUMN 1
WILL NOT BE DEEMED TO HAVE BEEN SURRENDERED FOR CASH (SUBJECT TO PRORATION)
UNLESS OTHERWISE INDICATED IN COLUMN 3. THE TOTAL NUMBER OF SHARES OF COMMON
STOCK LISTED IN COLUMN 3 AND COLUMN 4 SHOULD EQUAL THE NUMBER OF SHARES OF
COMMON STOCK LISTED IN COLUMN 2. IF THE TOTAL NUMBER OF SHARES OF COMMON STOCK
LISTED IN COLUMN 3 AND COLUMN 4 IS LESS THAN THE NUMBER OF SHARES OF COMMON
STOCK LISTED IN COLUMN 2, THE DIFFERENCE WILL, UNLESS OTHERWISE REQUESTED IN
WRITING, BE RETURNED TO YOU BY THE EXCHANGE AGENT AND DEEMED TO BE SHARES OF
COMMON STOCK OF THE COMPANY FOLLOWING THE MERGER ("NON-CASH ELECTION SHARES").
IF THE TOTAL NUMBER OF SHARES OF COMMON STOCK LISTED IN COLUMN 3 AND COLUMN 4 IS
GREATER THAN THE NUMBER OF SHARES OF COMMON STOCK LISTED IN COLUMN 2, ONLY THE
EXCESS, IF ANY, OF THE NUMBER OF SHARES OF COMMON STOCK LISTED IN COLUMN 2 OVER
THE NUMBER OF SHARES OF COMMON STOCK LISTED IN COLUMN 4 WILL BE DEEMED TO BE
CASH ELECTION SHARES, AND THE NUMBER OF SHARES OF COMMON STOCK LISTED IN COLUMN
4 WILL, UNLESS OTHERWISE REQUESTED IN WRITING, BE RETURNED TO YOU BY THE
EXCHANGE AGENT AND DEEMED TO BE NON-CASH ELECTION SHARES.
4
- -----------------------------------------------------
BOX B:
SPECIAL ISSUANCE AND
PAYMENT INSTRUCTIONS
To be completed ONLY if the check and/or the certificate(s) for shares
of Common Stock are to be issued in the name of someone other than the
person(s) in whose name(s) the Certificate(s) representing the shares of
Common Stock listed on this Form of Election are registered. (Unless
otherwise indicated in Box C, the check and/or Certificate(s) will be mailed
to the address indicated in Box B.)
Issue check and/or Certificate(s) for shares of Common Stock to:
Name: ______________________________________________________________________
(PLEASE PRINT)
Address: ___________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
__________________________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NO.)
(See Substitute Form W-9)
- -----------------------------------------------------
- -----------------------------------------------------
BOX C:
SPECIAL DELIVERY INSTRUCTIONS
To be completed ONLY if the following are to be mailed to an address
other than that indicated in Box A or Box B: (i) the check representing any
cash issued for shares of Common Stock listed in Column 3 on this Form of
Election and (ii) the Certificate(s) representing any shares listed in
Column 4 on this Form of Election.
Mail check and/or Certificate(s) to:
Name: ______________________________________________________________________
(PLEASE PRINT)
Address: ___________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
__________________________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NO.)
(See Substitute Form W-9)
- -----------------------------------------------
5
- --------------------------------------------------------------------------------
BOX D:
SIGN HERE
(COMPLETE SUBSTITUTE FORM W-9 BELOW)
____________________________________________________________________________
____________________________________________________________________________
(SIGNATURE(S) OF OWNER(S))
____________________________________________________________________________
Name(s): ___________________________________________________________________
____________________________________________________________________________
(PLEASE PRINT)
Capacity (full title): _____________________________________________________
Address: ___________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number: ( )_______________________________________
Taxpayer Identification or Social Security Number: _________________________
(SEE SUBSTITUTE FORM W-9)
Dated: _______, 1999
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
stock certificate(s) or on a security position listing or by the person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by an agent, attorney, administrator,
executor, guardian, trustee, officer of a corporation or any other person
acting in a fiduciary or representative capacity, please set forth full
title and see Instruction G.5.)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS B AND G)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE
BELOW.
YOU NEED A SIGNATURE GUARANTEE ONLY IF CHECKS IN PAYMENT OF CASH AND/OR ANY
NEW SHARE CERTIFICATE(S) ARE NOT PAYABLE TO THE ORDER OF AND/OR REGISTERED
IN EXACTLY THE SAME NAME AS INSCRIBED ON THE SURRENDERED CERTIFICATE(S).
Authorized Signature(s): ___________________________________________________
Name: ______________________________________________________________________
Name of Firm: ______________________________________________________________
Address: ___________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number: ____________________________________________
Dated: _____________________________________________________________________
- --------------------------------------------------------------------------------
6
- --------------------------------------------------------------------------------
BOX E:
GUARANTEE OF DELIVERY
(TO BE USED ONLY IF CERTIFICATES ARE NOT SURRENDERED HEREWITH)
The undersigned, a firm described by the appropriate box checked below, guarantees delivery to the Exchange Agent
of the certificates representing shares of Common Stock to which this Form of Election relates, duly endorsed in blank
or otherwise in form acceptable for transfer on the books of the Company, no later than 5:00 P.M., New York City time,
on Friday, August 20, 1999.
/ / a broker or dealer
/ / a bank or savings association
/ / any other Eligible Institution (as described in
Instruction 4(b). Please specify the type of Eligible
Institution below.
- --------------------------------------------------------------------------------
7
PAYOR'S NAME: AMERICAN STOCK TRANSFER & TRUST COMPANY
SUBSTITUTE PART I--PLEASE PROVIDE YOUR TIN IN THE TIN:
FORM W-9 BOX AT THE RIGHT AND CERTIFY BY Social Security Number
SIGNING AND DATING BELOW or Employer
Identification Number
Department of For Payees exempt from backup withholding, see the enclosed Specific
the Treasury, Internal Instructions and complete as instructed therein.
Revenue Service
PAYOR'S REQUEST FOR PART II--Certification--Under penalties of perjury, I certify that:
TAXPAYER IDENTIFICATION (1) The number shown on this form is my correct TIN (or I am writing for
NUMBER ("TIN") AND a number to be issued to me); and
CERTIFICATION (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 Internal
Revenue Service ("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.
SIGNATURE: DATED:
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been
notified by the IRS that you are subject to backup withholding because you have
failed to report all interest and 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 were no longer subject to
backup withholding, do not cross out item (2). (Also, see the enclosed Specific
Instructions).
NOTE: 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
MERGER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST ALSO COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING YOUR
TIN.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a TIN has not been issued to me,
and either (1) I have mailed or delivered an application to receive a TIN to the
appropriate IRS 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 TIN by the time of payment, 31% of all payments pursuant to the
Merger made to me thereafter will be withheld until I provide a TIN.
Signature: ________________________________________________ Date: ______________
8
INSTRUCTIONS FOR COMPLETION OF FORM OF ELECTION
If you want to receive $7.00 per share in cash for some or all of your
shares of Common Stock in the Merger, this Form of Election should be properly
filled in, dated, signed and delivered, together with the Certificate(s)
representing the shares of Common Stock currently held by you (unless delivery
is guaranteed in Box E ("Guarantee of Delivery") in accordance with Instruction
B), to the Exchange Agent. Please read and follow carefully the instructions
regarding completion of this Form of Election set forth below.
This Form of Election and the election you make herein are subject to the
terms and conditions set forth herein, in the Proxy Statement, which has already
been mailed to you (or which you are receiving at the same time as this Form of
Election), and in the Merger Agreement which is attached as Annex A to the Proxy
Statement. Copies of the Proxy Statement may be requested from the Exchange
Agent. The delivery of this Form of Election to the Exchange Agent constitutes
acknowledgment of the receipt of the Proxy Statement.
EACH HOLDER OF SHARES OF COMMON STOCK IS STRONGLY ENCOURAGED TO READ THE
PROXY STATEMENT IN ITS ENTIRETY AND TO DISCUSS THE CONTENTS THEREOF AND THIS
FORM OF ELECTION WITH HIS OR HER FINANCIAL AND TAX ADVISORS PRIOR TO DECIDING
UPON AN ELECTION.
A. ELECTION
This Form of Election provides for your election to receive cash in exchange
for some or all of your shares of Common Stock in the Merger. COMPLETE THIS FORM
OF ELECTION ONLY IF YOU WANT TO RECEIVE CASH IN THE MERGER FOR SOME OR ALL OF
YOUR SHARES. DO NOT COMPLETE THIS FORM OF ELECTION IF YOU WANT TO KEEP ALL OF
YOUR SHARES. At your direction, subject to the terms and conditions set forth in
this Form of Election, in the Proxy Statement and in the Merger Agreement, each
share of Common Stock will either:
- be converted into $7.00 in cash, without interest, pursuant to a "Cash
Election" or
- remain a share of Common Stock of the Company.
You may make a Cash Election or keep your shares of Common Stock in any
combination that you desire.
NOTWITHSTANDING THE ELECTION MADE HEREIN, THE NUMBER OF SHARES OF THE
UNDERSIGNED THAT MAY BE CONVERTED INTO THE RIGHT TO RECEIVE CASH IN THE MERGER
IS SUBJECT TO PRORATION IN ACCORDANCE WITH THE TERMS OF THE MERGER AGREEMENT.
The aggregate number of shares of Common Stock that may elect to receive
cash in the Merger is limited to 2,111,966 shares. If the holders of more than
2,111,966 shares elect to receive cash, there will be a pro rata reduction so
that all of the holders who elect to receive cash will receive cash for some of
their shares and keep the remainder of their shares. Stockholders of the Company
who do not make Cash Elections will keep all of their shares of Common Stock.
B. TIME IN WHICH TO MAKE A CASH ELECTION
In order for a Cash Election to be effective, the Exchange Agent must
receive a properly completed Form of Election, accompanied by all stock
certificates representing shares of Common Stock currently held by you (or a
proper guarantee of delivery, as described below), NO LATER THAN 5:00 P.M., NEW
YORK CITY TIME, TUESDAY, AUGUST 17, 1999 (the "Election Date"). If all other
conditions set forth in the Merger Agreement have been met or, if permissible,
waived, the effective time of the Merger (the "Effective Time") could occur on
the same day as adoption of the Merger Agreement by stockholders of the Company.
As soon as the date on which the Effective Time is anticipated to occur is
determined, the Company will publicly announce such date, although no assurance
can be given that the Effective Time will occur on such date. Persons whose
stock certificates are not immediately available may also make an election by
completing this Form of Election and having Box E ("Guarantee of Delivery")
properly completed and duly executed by a bank, a broker, dealer, municipal
securities dealer, municipal securities broker, government securities dealer, or
government securities broker, a credit union, a national securities exchange,
registered securities association or clearing agency or a savings association
(subject to the condition that the Certificate(s), the delivery of which is
thereby guaranteed, are in fact delivered to the Exchange Agent no later than
5:00 p.m. New York City Time, on the third trading day after the Election Date
(the "Guaranteed Delivery Deadline")).
9
IF THE EXCHANGE AGENT HAS NOT RECEIVED YOUR PROPERLY COMPLETED FORM OF
ELECTION, ACCOMPANIED BY YOUR STOCK CERTIFICATE(S), BY THE ELECTION DATE (UNLESS
BOX E (GUARANTEE OF DELIVERY) HAS BEEN PROPERLY COMPLETED AND SUCH
CERTIFICATE(S) ARE RECEIVED BY THE EXCHANGE AGENT BY THE GUARANTEED DELIVERY
DEADLINE), YOUR SHARES OF COMMON STOCK WILL BE TREATED AS NON-CASH ELECTION
SHARES.
C. FAILURE TO MAKE AN EFFECTIVE CASH ELECTION
If you fail to make an effective Cash Election, or if your Cash Election is
deemed by the Exchange Agent or the Company to be defective in any way, any
shares covered by this Form of Election will be treated as Non-Cash Election
Shares.
D. SHARES AS TO WHICH A CASH ELECTION IS MADE
You may make a Cash Election with respect to all or any portion of your
shares of Common Stock by listing the number of shares of Common Stock for which
you wish to make a specific election in the appropriate column on Box A
("Election and Description of Shares Deposited"). If there is insufficient space
to list all your Certificate(s) being submitted to the Exchange Agent or to
respond to any other request for information, please attach a separate sheet.
E. SPECIAL CONDITIONS
1. CHANGE OF ELECTION
You may change any election or revoke or change any other instruction in
this Form of Election by written notice, signed and dated by you, to the
Exchange Agent accompanied by a properly completed Form of Election. Such
written notice must identify the name of the holder of record of the shares of
Common Stock subject to such notice and the Certificate number(s) shown on the
Certificate(s) representing such shares of Common Stock. The written notice must
be received by the Exchange Agent prior to 5:00 p.m., New York City time, on the
Election Date.
2. WITHDRAWAL OF ELECTION
The holder of the shares of Common Stock listed on this Form of Election may
at any time prior to 5:00 p.m. New York City time on the Election Date withdraw
his or her Cash Election by written notice to the Exchange Agent or by
withdrawal by written request of any Certificate(s) representing shares of
Common Stock listed in connection with the Cash Election made on this Form of
Election. If the Merger is abandoned or if a Cash Election is properly and
timely withdrawn, Certificates representing shares of Common Stock will be
mailed together with this Form of Election to the person whose name appears in
Box A ("Election and Description of Shares Deposited") at the address shown
therein.
3. SHARES HELD BY NOMINEES, TRUSTEES OR FIDUCIARIES
Holders of record of shares of Common Stock who hold such shares of Common
Stock as nominees, trustees or in other representative or fiduciary capacities
(each a "Representative") may submit one or more Forms of Election covering the
aggregate number of shares of Common Stock held by such Representative for the
beneficial owners for whom the Representative is making a Cash Election. Any
Representative who makes a Cash Election may be required to provide the Exchange
Agent with such documents and/or additional certifications, if requested, in
order to satisfy the Exchange Agent that such Representative holds such shares
of Common Stock for a particular beneficial owner of such shares.
F. NO FRACTIONAL SHARES OF COMMON STOCK
The undersigned understands that if the holders of more than 2,111,966
shares of Common Stock elect to receive cash, there will be a pro rata reduction
so that all of the holders who elect to receive cash will receive cash for some
of their shares and keep the remainder of their shares. If you make a Cash
Election and the resulting pro rata reduction would provide you with cash for a
fractional share of Common Stock, the number of shares of Common Stock for which
you will receive $7.00 per share will be rounded down to the nearest whole share
(and you will keep an additional Non-Cash Election Share).
10
G. GENERAL INSTRUCTIONS
1. EXECUTION AND DELIVERY
This Form of Election, or a photocopy of it, should be property completed,
dated and signed, and should be delivered, together with your Certificate(s)
representing your shares of Common Stock (or a properly completed Guarantee of
Delivery) to the Exchange Agent at the appropriate address set forth on the
cover page to this Form of Election.
THE METHOD OF DELIVERY OF THIS FORM OF ELECTION, THE CERTIFICATE(S) FOR
SHARES OF COMMON STOCK AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
RISK OF THE STOCKHOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT
TIME SHOULD BE ALLOWED FOR SUCH DOCUMENTS TO REACH THE EXCHANGE AGENT. EXCEPT AS
OTHERWISE PROVIDED, DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY
THE EXCHANGE AGENT. No alternative, conditional or contingent elections will be
accepted.
2. SIGNATURES
The signature (or signatures, in the case of Certificate(s) owned by two or
more joint holders) on this Form of Election must correspond exactly to the name
inscribed on the face of the Certificate(s) sent to the Exchange Agent, unless
the shares of Common Stock have been transferred by the holder of record. If
there has been any such transfer, the signature(s) on this Form of Election
should be signed in exactly the same form as the name of the last transferee
indicated on the accompanying stock powers attached to or endorsed on the
Certificate(s) (see General Instruction 4 below).
If shares of Common Stock are registered in different names on several
Certificate(s), it will be necessary to complete, sign and submit a separate
Form of Election for each different registration of Certificates. For example,
if some Certificates are registered solely in your name, some are registered
solely in your spouse's name and some are registered jointly in the name of you
and your spouse, three separate Forms of Election should be submitted.
3. CHECKS AND/OR CERTIFICATES IN SAME NAME
If checks in payment of any cash and/or any new share certificates are to be
payable to the order of and/or registered in exactly the same name as inscribed
on the surrendered Certificate(s), you will not be required to endorse the
surrendered Certificates or make payment for transfer taxes or have your
signature guaranteed. For corrections in name or changes in name not involving
changes in ownership, see General Instruction 4(e) below.
4. CHECKS AND/OR CERTIFICATES IN DIFFERENT NAMES
(IGNORE THIS INSTRUCTION 4 IF THE FIRST SENTENCE OF INSTRUCTION 3 APPLIES)
If checks in payment of any cash and/or any new share certificates are to be
payable to the order of and/or registered in a different name from exactly the
registered name inscribed on the surrendered Certificate(s) or delivered to a
different address, please follow these instructions:
(a) REGISTERED HOLDERS COMPLETING BOX B AND/OR BOX C . If the
registered holder of Certificate(s) signs the Form of Election, the
registered holder should complete Box B ("Special Issuance and Payment
Instructions") and/or Box C ("Special Delivery Instructions") and have his
signature guaranteed on this Form of Election. No endorsements or signature
guarantees on Certificate(s) or stock powers are required in this case.
(b) IF FORM OF ELECTION IS SIGNED BY PERSON OTHER THAN REGISTERED
HOLDER--ENDORSEMENT AND STOCK TRANSFER GUARANTEE. The Certificate(s)
surrendered must be properly endorsed or accompanied by appropriate stock
power(s) properly executed by the record holder of such Certificate(s) to
the person who is to receive the check or certificate(s) representing shares
of Common Stock. The signature of the record holder on the endorsement or
stock power(s) must correspond with the name that appears on the face of the
Certificate(s) in every particular and must be guaranteed by an Eligible
Institution (as defined below). If this General Instruction 4 applies,
please check with your financial institution or brokerage firm immediately
to determine whether it is an Eligible Institution or if it will need to
help you locate an Eligible Institution. NOTARIES PUBLIC CANNOT EXECUTE
ACCEPTABLE GUARANTEES OF SIGNATURES.
11
An "Eligible Institution" means:
(i) Banks (as that term is defined in Section 3(a) of the Federal
Deposit Insurance Act);
(ii) Brokers, dealers, municipal securities dealers, municipal
securities brokers, government securities dealers and government
securities brokers (as those terms are defined in the Securities Exchange
Act of 1934);
(iii) Credit unions (as that term is defined in Section 19(b)(1)(A)
of the Federal Reserve Act);
(iv) National securities exchanges, registered securities
associations and clearing agencies (as those terms are used in the
Securities Exchange Act of 1934); and
(v) Savings associations (as that term is defined in Section 3(b) of
the Federal Deposit Insurance Act).
(c) TRANSFEREE'S SIGNATURE. If a Certificate has previously been
properly transferred but the transfer has not yet been recorded on the books
of the Company, this Form of Election must be signed by the transferee or by
such transferee's agent and should not be signed by the transferor. The
signature of such transferee or agent on this Form of Election must be
guaranteed by an Eligible Institution if the transferee has completed Box B
or Box C.
(d) TRANSFER TAXES. In the event that any transfer or other tax becomes
payable by reason of the issuance of a check in payment of any cash to a
stockholder of the Company pursuant to the Merger and/or the issuance of any
Certificate(s) representing shares of Common Stock in any name other than
that of the record holder, the transferee or assignee must pay such tax to
the Exchange Agent or must establish to the satisfaction of the Exchange
Agent that such tax has been paid. You should consult your own tax advisor
as to any possible tax consequences resulting from the issuance of shares or
cash in a name different from that of the holder of record of any
surrendered Certificate.
(e) CORRECTION OF OR CHANGE IN NAME. For a correction in name that does
not involve a change in ownership, the surrendered Certificate(s) should be
appropriately endorsed; for example, "John A. Doe, incorrectly inscribed as
John S. Doe," with the signature guaranteed by an Eligible Institution. For
a change in name by marriage, etc., the surrendered Certificate(s) should be
appropriately endorsed; for example, "Mary Doe, now by marriage Mrs. Mary
Jones," with the signature guaranteed by an Eligible Institution.
5. SUPPORTING EVIDENCE
In case any Form of Election, Certificate, endorsement or stock power is
executed by an agent, attorney, administrator, executor, guardian, trustee or
any person in any other fiduciary or representative capacity, or by an officer
of a corporation on behalf of the corporation, there must be submitted (with the
Form of Election, surrendered Certificate(s) and/or stock powers) documentary
evidence of appointment and authority to act in such capacity (including court
orders and corporate resolutions when necessary), as well as evidence of the
authority of the person making such execution to assign, sell or transfer the
Certificate(s). Such documentary evidence of authority must be in form
satisfactory to the Exchange Agent.
6. NOTICE OF DEFECTS; RESOLUTION OF DISPUTES
NONE OF THE COMPANY, THE BUYERS, MERGER SUB OR THE EXCHANGE AGENT WILL BE
UNDER ANY OBLIGATION TO NOTIFY YOU OR ANYONE ELSE THAT THE EXCHANGE AGENT HAS
NOT RECEIVED A PROPERLY COMPLETED FORM OF ELECTION FROM YOU OR THAT THE FORM OF
ELECTION SUBMITTED BY YOU IS DEFECTIVE IN ANY WAY.
Any and all disputes with respect to Forms of Election and elections made in
respect of shares of Common Stock (including but not limited to matters relating
to the Election Date, time limits, defects or irregularities in the surrender of
any Certificate(s) and effectiveness of any election) will be resolved by the
Exchange Agent and that decision will be final and binding on all parties
concerned. The Exchange Agent will have the absolute right in its sole
discretion to reject any and all Forms of Election and surrender of
Certificate(s) that are deemed by it to be not in proper form or to waive any
immaterial irregularities in any Form of Election or in the surrender of any
Certificate. Surrenders of Certificates will not be deemed to have been made
until all defects or irregularities that have not been waived have been cured.
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7. FEDERAL TAX WITHHOLDING/SUBSTITUTE FORM W-9
Under federal income tax law, the Exchange Agent is required to file a
report with the IRS disclosing the cash payments being made to you as an
electing stockholder. Federal law also requires each stockholder to provide the
Exchange Agent with such stockholder's current TIN (E.G., social security number
or employer identification number) on a Substitute Form W-9 set forth above. If
such stockholder is an individual, the TIN is his or her social security number.
If the Exchange Agent is not provided with the correct TIN, the stockholder or
other payee may be subject to a $50 penalty imposed by the IRS.
Certain stockholders (including, among others, tax-exempt organizations and
certain foreign persons), however, are not subject to these backup withholding
and reporting requirements. In order for a foreign person to qualify as an
exempt recipient, that stockholder must submit to the Exchange Agent a properly
completed IRS Form W-8, signed under penalties of perjury, attesting to that
person's exempt status. A Form W-8 can be obtained from the Exchange Agent. See
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any cash payment made to the stockholder (or other payee if Instruction 4
applies). Backup withholding is not an additional tax. Rather, the federal
income 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 IRS.
If the Exchange Agent is not provided with a TIN by the time of payment, the
Exchange Agent will withhold 31% on all such cash payments to be made to you
until a TIN is provided to the Exchange Agent. If you do not provide the
Exchange Agent with your TIN, you must complete the Certificate of Awaiting
Taxpayer Identification Number.
The stockholder is required to give the Exchange Agent the TIN of the record
owner of the shares of Common Stock. If the shares of Common Stock are
registered in more than one name or are not registered 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.
8. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS
Any checks representing cash and any Certificate(s) representing shares of
Common Stock will be mailed to the address of the holder of record as indicated
in Box A or to the person identified in Box B (if completed), unless
instructions to the contrary are given in Box C.
9. LOST STOCK CERTIFICATES
If you are unable to locate the Certificate(s) representing your shares of
Common Stock, contact the Company's Transfer Agent, American Stock Transfer &
Trust Company, toll free in the United States at 800-937-5449 or collect at
1-718-921-8200. The Transfer Agent will instruct you on the procedures to
follow. In order to make an effective election with respect to the lost
Certificate(s) and receive the cash, you will be required to complete certain
additional documentation and pay for an indemnity bond covering the lost
Certificate(s). The cost of the bond will be based on the value of the shares of
Common Stock represented by the lost Certificates.
10. MISCELLANEOUS
As soon as practicable after the Effective Time, the Exchange Agent will
begin mailing and delivering checks and, if necessary, Certificates representing
shares of Common Stock that you retain as a result of proration, if any, in
exchange for Certificates representing shares of Common Stock that have been
received by the Exchange Agent and for which an election to receive cash has
been properly and timely made. There will be a delay, however, if backup
withholding pursuant to General Instruction 7 applies.
Requests for assistance may be directed to the Exchange Agent at the address
and telephone number set forth on this Form of Election. Additional copies of
the Proxy Statement or this Form of Election may be obtained from the Exchange
Agent at the address set forth below. IMPORTANT: THIS FORM OF ELECTION, TOGETHER
WITH CERTIFICATES (OR THE ATTACHED GUARANTEE OF DELIVERY, OR A FACSIMILE
THEREOF), MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE ELECTION
DATE.
DO NOT ENCLOSE YOUR PROXY CARD RELATING TO THE ANNUAL MEETING WITH THIS FORM
OF ELECTION; YOUR PROXY CARD SHOULD BE RETURNED IN THE POSTAGE PAID ENVELOPE
ENCLOSED WITH THE PROXY STATEMENT FOR THAT PURPOSE.
The Exchange Agent is:
American Stock Transfer & Trust Company
40 Wall Street, 46th Floor
New York, NY 10005
TOLL FREE (800) 937-5449
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