EXHIBIT (a)(1)(ii)
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LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF REDWOOD MICROCAP FUND, INC.
PURSUANT TO THE
OFFER TO PURCHASE FOR CASH DATED APRIL 25, 2005
BY
GIBBS HOLDINGS, LLC
AT A PURCHASE PRICE OF $1.60 PER SHARE
THE TENDER OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., DENVER TIME, ON
MAY 25, 2005, UNLESS THE TENDER OFFER IS EXTENDED.
THE DEPOSITARY FOR THE TENDER OFFER IS:
COMPUTERSHARE TRUST COMPANY, INC.
BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND OR OVERNIGHT
P.O. Box 1596 For Eligible Institutions Only: COURIER:
Denver, CO 80201-1596 (303) 262-0606 350 Indiana Street
For Confirmation Only: Suite 850
Telephone: (800) 962-4284 Golden, CO 80401\
THE OFFER TO PURCHASE AND THIS ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE
ACCOMPANYING INSTRUCTIONS, SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
DELIVERY OF THIS LETTER OF TRANSMITTAL AND ALL OTHER DOCUMENTS TO AN ADDRESS
OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY TO THE
DEPOSITARY. DELIVERIES TO REDWOOD MICROCAP FUND, INC., GIBBS HOLDINGS, LLC, OR
DIANE ALLEN, THE INFORMATION AGENT, WILL NOT BE FORWARDED TO THE DEPOSITARY AND
THEREFORE, WILL NOT CONSTITUTE VALID DELIVERY TO THE DEPOSITARY. DELIVERIES TO
THE BOOK-ENTRY TRANSFER FACILITY WILL NOT CONSTITUTE VALID DELIVERY TO THE
DEPOSITARY.
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DESCRIPTION OF SHARES TENDERED
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SHARES TENDERED
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NAMES AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARE TOTAL NUMBER OF SHARES NUMBER OF
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) CERTIFICATE REPRESENTED BY SHARE SHARES
APPEAR(S) ON SHARE CERTIFICATE(S) TENDERED) NUMBERS* CERTIFICATE(S)* TENDERED**
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Total Shares Tendered:
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[_] Check here if any certificates representing shares tendered hereby have been
lost, stolen, destroyed or mutilated. You must complete an affidavit of loss and
return it with your Letter of Transmittal. A bond will be required to be posted
by the stockholder to secure against the risk that the certificates may be
subsequently recirculated. Upon receipt of this letter, the Depositary will send
you an affidavit of loss and further instructions as to the determination of the
requirement for posting of a bond. See Instruction 12.
* Does not need to be completed by stockholders delivering shares by book-entry
transfer.
** If you desire to tender fewer than all shares evidenced by any certificates
listed above, please indicate in this column the number of shares you wish to
tender. Otherwise, all shares evidenced by such certificates will be deemed to
have been tendered. See Instruction 4.
This Letter of Transmittal is to be used only if (1) certificates for shares are
to be forwarded with it, or such certificates will be delivered under a Notice
of Guaranteed Delivery previously sent to the depositary (as defined in the
Offer to Purchase), or (2) a tender of shares is to be made by book-entry
transfer to the account maintained by the depositary at The Depository Trust
Company, referred to as the "book-entry transfer facility," pursuant to Section
3 of the Offer to Purchase.
Stockholders who desire to tender shares under the tender offer and who cannot
deliver the certificates for their shares or who are unable to comply with the
procedures for book-entry transfer before the "expiration date" (as defined in
Section 1 of the Offer to Purchase), and who cannot deliver all other documents
required by this Letter of Transmittal to the depositary before the expiration
date, may tender their shares according to the guaranteed delivery procedures
set forth in Section 2 of the Offer to Purchase. See Instruction 2.
If you want to retain your shares, you do not need to take any action.
IN ANY EVENT, YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE OFFER TO
PURCHASE OR THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE INFORMATION AGENT
AT THE ADDRESS OR TOLL-FREE NUMBER INDICATED ON THE BACK COVER OF THIS LETTER OF
TRANSMITTAL. LIST ABOVE THE CERTIFICATE NUMBERS AND NUMBER OF SHARES TO WHICH
THIS LETTER OF TRANSMITTAL RELATES. IF THE SPACE PROVIDED BELOW IS INADEQUATE,
LIST THE CERTIFICATE NUMBERS TENDERED ON A SEPARATELY EXECUTED AND SIGNED
SCHEDULE AND AFFIX THE SCHEDULE TO THIS LETTER OF TRANSMITTAL. THE NAMES AND
ADDRESSES OF THE HOLDERS SHOULD BE PRINTED, IF NOT ALREADY PRINTED ABOVE,
EXACTLY AS THEY APPEAR ON THE CERTIFICATES REPRESENTING THE SHARES TENDERED
HEREBY. THE SHARES THAT THE UNDERSIGNED WISHES TO TENDER SHOULD BE INDICATED IN
THE APPROPRIATE BOXES.
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BOOK-ENTRY TRANSFER
(SEE INSTRUCTION 2)
[_] CHECK HERE IF SHARES ARE BEING TENDERED BY BOOK-ENTRY TRANSFER TO AN ACCOUNT
MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE
THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER
SHARES BY BOOK-ENTRY TRANSFER):
Name(s) of Tendering Institution(s):___________________________________________
Account Number:________________________________________________________________
Transaction Code Number:_______________________________________________________
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PRIOR GUARANTEED DELIVERY
(SEE INSTRUCTION 2)
[_] CHECK HERE IF 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):_________________________________________________
Date of Execution of Notice of Guaranteed Delivery:____________________________
Name of Institution which Guaranteed Delivery:_________________________________
Account Number (if delivered by Book-Entry Transfer):__________________________
Transaction Code Number:_______________________________________________________
[_] CHECK HERE IF TENDER IS BEING MADE IN RESPECT OF LOST, MUTILATED OR
DESTROYED CERTIFICATES. (SEE INSTRUCTION 2)
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To COMPUTERSHARE TRUST COMPANY, INC.:
The undersigned hereby tenders to Gibbs Holdings, LLC, an Oklahoma limited
liability company ("Holdings"), the above-described shares of Redwood Microcap
Fund, Inc. ("Redwood") common stock, par value $0.001 per share, at $1.60 per
share, net to the seller in cash, without interest, upon the terms and subject
to the conditions set forth in Holdings' Offer to Purchase, dated April 25,
2005, receipt of which is hereby acknowledged, and in this Letter of Transmittal
which, as amended and supplemented from time to time, together constitute the
tender offer.
Subject to and effective on acceptance for payment of the shares tendered hereby
in accordance with the terms of and subject to the conditions of the tender
offer (including, if the tender 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, Holdings all right, title and
interest in and to all shares tendered hereby and orders the registration of all
such shares if tendered by book-entry transfer that are purchased pursuant to
the tender offer to or upon the order of Holdings and hereby irrevocably
constitutes and appoints the depositary as the true and lawful agent and
attorney-in-fact of the undersigned with respect to such shares (with the full
knowledge that the depositary also acts as the agent of Holdings), with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to:
(a) deliver certificates representing such shares, or transfer ownership of
such shares on the account books maintained by the book-entry transfer
facility, together, in either such case, with all accompanying evidences of
transfer and authenticity, to or upon the order of Redwood's, upon receipt
by the depositary, as the undersigned's agent, of the purchase price with
respect to such shares;
(b) present certificates for such shares for cancellation and transfer on
Redwood's books; and
(c) receive all benefits and otherwise exercise all rights of beneficial
ownership of such shares, subject to the next paragraph, all in accordance
with the terms and subject to the conditions of the tender offer.
The undersigned hereby covenants, represents and warrants to Holdings that:
(a) the undersigned understands that tendering shares under any one of the
procedures described in Section 2 of the Offer to Purchase and in the
instructions hereto will constitute the undersigned's acceptance of the
terms and conditions of the tender offer, including the undersigned's
representation and warranty that (i) the undersigned has a net long
position in shares or equivalent securities at least equal to the shares
tendered within the meaning of Rule 14e-4 under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and (ii) such tender of shares
complies with Rule 14e-4 under the Exchange Act;
(b) when and to the extent Holdings accepts the shares for purchase, Holdings
will acquire good, marketable and unencumbered title to them, free and
clear of all security interests, liens, charges, encumbrances, conditional
sales agreements or other obligations relating to their sale or transfer,
and not subject to any adverse claim;
(c) on request, the undersigned will execute and deliver any additional
documents the depositary or Holdings deems necessary or desirable to
complete the assignment, transfer and purchase of the shares tendered
hereby; and
(d) the undersigned agrees to all of the terms of the tender offer.
The name(s) and address(es) of the registered holder(s) should be printed, if
they are not already printed above, exactly as they appear on the certificates
representing shares tendered hereby. The certificate numbers, the number of
shares represented by such certificates, and the number of shares that the
undersigned wishes to tender, should be set forth in the appropriate boxes
above.
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The undersigned understands that all shares properly tendered and not properly
withdrawn will be purchased at the purchase price of $1.60 per share, net to the
seller in cash, without interest, upon the terms and subject to the conditions
of the tender offer.
The undersigned recognizes that under certain circumstances set forth in the
Offer to Purchase, Holdings may terminate or amend the tender offer or may
postpone the acceptance for payment of, or the payment for, shares tendered. The
undersigned understands that certificate(s) for any shares delivered herewith
but not tendered or not purchased will be returned to the undersigned at the
address indicated above.
The undersigned understands that acceptance of shares by Holdings for payment
will constitute a binding agreement between the undersigned and Holdings upon
the terms and subject to the conditions of the tender offer. The undersigned
acknowledges that no interest will be paid on the purchase price for tendered
shares regardless of any extension of the tender offer or any delay in making
such payment.
The check for the aggregate net purchase price for such of the tendered shares
as are purchased by Holdings will be issued to the order of the undersigned and
mailed to the address indicated above unless otherwise indicated under either of
the "Special Payment Instructions" or the "Special Delivery Instructions" boxes
below.
All authority conferred or agreed to be conferred in this Letter of Transmittal
shall survive the death or incapacity of the undersigned, and any obligations or
duties of the undersigned under this Letter of Transmittal shall be binding upon
the heirs, personal representatives, executors, administrators, successors,
assigns, trustees in bankruptcy and legal representatives of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable.
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SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 5, 6 AND 7)
To be completed ONLY if certificates for shares not tendered, and/or any check
for the purchase price are to be issued in the name of someone other than the
undersigned, or if shares tendered hereby and delivered by book-entry transfer
which are not accepted for payment are to be returned by credit to an account
maintained at the Book-Entry Transfer Facility other than that designated above.
Issue [_] check:
[_] share certificate(s) to:
Name(s):_______________________________________
(PLEASE PRINT)
_______________________________________
Address:_______________________________________________________________________
(INCLUDE ZIP CODE)
_____________________________________________
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9 INCLUDED HEREWITH)
[_] Credit shares delivered by book-entry transfer and not purchased to the
account set forth below:
___________________
(ACCOUNT NUMBER)
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SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 5 AND 7)
To be completed ONLY if certificates for shares not tendered, and/or any check
for the purchase price are to be sent to someone other than the undersigned, or
to the undersigned at an address other than that shown above.
Send [_] check:
[_] share certificate(s) to:
Name(s):_______________________________________
(PLEASE PRINT)
Address:_______________________________________________________________________
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IMPORTANT
STOCKHOLDER(S) SIGN HERE (SEE INSTRUCTIONS 1 AND 5)
(PLEASE ALSO COMPLETE AND RETURN SUBSTITUTE FORM W-9 CONTAINED HEREIN)
X _____________________________________
X _____________________________________
SIGNATURE(S) OF HOLDER(S)
Dated:________________
(Must be signed by the registered holder(s) exactly as the name(s) of such
holder(s) appear(s) on certificate(s) or on a security position listing or by
person(s) authorized to become registered holder(s) thereof by certificates and
documents transmitted with this Letter of Transmittal. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
please provide the following information and see Instruction 5.)
Name(s):_____________________________________
(PLEASE PRINT)
_____________________________________
Capacity (full title): ___________________________________
Address:_______________________________________________________________________
(INCLUDE ZIP CODE)
_________________________________________
(DAYTIME AREA CODE AND TELEPHONE NO.)
_________________________________________
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9 INCLUDED HEREWITH)
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GUARANTEE OF SIGNATURE(S)
(IF REQUIRED - SEE INSTRUCTIONS 1 AND 5)
AUTHORIZED SIGNATURE
NAME(S): ________________________________
________________________________
TITLE: __________________________________
NAME OF FIRM: ___________________________
ADDRESS:_______________________________________________________________________
(INCLUDE ZIP CODE)
_________________________________________
(DAYTIME AREA CODE AND TELEPHONE NO.)
Dated: ___________
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INSTRUCTIONS TO LETTER OF TRANSMITTAL
FORMING PART OF THE TERMS OF THE TENDER OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required if either:
(a) this Letter of Transmittal is signed by the registered holder of the shares
exactly as the name of the registered holder appears on the certificate,
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 shares, tendered with this Letter of Transmittal,
and payment and delivery are to be made directly to such registered holder
unless such registered holder has completed either the box entitled
"Special Payment Instructions" or "Special Delivery Instructions" above; or
(b) such shares are tendered for the account of a bank, broker, dealer, credit
union, savings association or other entity which is a member in good
standing of the Securities Transfer Agents Medallion Program, the Stock
Exchange Medallion Program, the New York Stock Exchange, Inc. Medallion
Signature Program or a bank, broker, dealer, credit union, savings
association or other entity which is an "eligible guarantor institution,"
as such term is defined in Rule 17Ad-15 under the Exchange Act, each such
entity, referred to as an "Eligible Institution."
In all other cases, signatures on this Letter of Transmittal must be guaranteed
by an Eligible Institution. Stockholders may also need to have any certificates
they deliver endorsed or accompanied by a stock power, and the signature on
these documents may also need to be guaranteed. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be used only if certificates are
delivered with it to the depositary, or such certificates will be delivered
under a Notice of Guaranteed Delivery previously sent to the depositary, or if
tenders are to be made concurrently pursuant to the procedure for tender by
book-entry transfer set forth in Section 2 of the Offer to Purchase.
Certificates for all physically tendered shares, or confirmation of a book-entry
transfer into the depositary's account at the book-entry transfer facility of
shares tendered electronically, together in each case with a properly completed
and duly executed Letter of Transmittal or manually signed facsimile of it, or
an Agent's Message (defined below), and any other documents required by this
Letter of Transmittal, should be mailed or delivered to the depositary at the
appropriate address set forth herein and must be received by the depositary
before the expiration date. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER
FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES
NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by the book-entry
transfer facility to, and received by, the depositary, which states that the
book-entry transfer facility has received an express acknowledgment from the
participant in such book-entry transfer facility tendering the shares, that such
participant has received and agrees to be bound by the terms of the Letter of
Transmittal, and that Holdings may enforce such agreement against such
participant.
Stockholders whose certificates are not immediately available or who cannot
deliver certificates for their shares and all other required documents to the
depositary before the expiration date, or whose shares cannot be delivered
before the expiration date under the procedures for book-entry transfer, may
tender their shares by or through any eligible guarantor institution by properly
completing and duly executing and delivering a Notice of Guaranteed Delivery, or
facsimile of it, and by otherwise complying with the guaranteed delivery
procedure set forth in Section 2 of the Offer to Purchase. Under such procedure,
the certificates for all physically tendered shares or book-entry confirmation,
as the case may be, as well as a properly completed and duly executed Letter of
Transmittal, or manually signed facsimile of it, or an Agent's Message, and all
other documents required by this Letter of Transmittal, must be received by the
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depositary within three business days after receipt by the depositary of such
Notice of Guaranteed Delivery, all as provided in Section 2 of the Offer to
Purchase.
The Notice of Guaranteed Delivery may be delivered by hand, facsimile
transmission or mail to the depositary and must include, if necessary, a
guarantee by an eligible guarantor institution in the form set forth in such
notice. For shares to be tendered validly under the guaranteed delivery
procedure, the depositary must receive the Notice of Guaranteed Delivery before
the expiration date.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR SHARES, IS
AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY.
Holdings will not accept any alternative or contingent tenders, nor will it
purchase any fractional shares except as expressly provided in the Offer to
Purchase. All tendering stockholders, by execution of this Letter of
Transmittal, or a facsimile of it, waive any right to receive any notice of the
acceptance of their tender.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Shares Tendered" is inadequate, the certificate number and/or
the number of shares should be listed on a separate signed schedule and attached
to this Letter of Transmittal.
4. PARTIAL TENDERS AND UNPURCHASED SHARES. (Not applicable to stockholders
who tender by book-entry transfer.) If fewer than all of the shares evidenced by
any certificate(s) are to be tendered, fill in the number of shares which are to
be tendered in the column entitled "Number of Shares Tendered" in the box
entitled "Description of Shares Tendered" above. In such case, if any tendered
shares are purchased, a new certificate for the remainder of the shares
evidenced by the old certificate(s) will be issued and sent to the registered
holder(s) thereof, unless otherwise specified in either the box entitled
"Special Payment Instructions" or the box entitled "Special Delivery
Instructions" in this Letter of Transmittal, promptly after the expiration date.
Unless otherwise indicated, all shares represented by the certificates listed
and delivered to the depositary will be deemed to have been tendered.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS.
(a) If this Letter of Transmittal is signed by the registered holder(s) of the
shares tendered hereby, the signature(s) must correspond exactly with the
name(s) as written on the face of the certificate(s) without any change
whatsoever.
(b) If the shares tendered hereby are registered in the names of two or more
joint holders, each such holder must sign this Letter of Transmittal.
(c) If any tendered shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal, or photocopies of it, as there are
different registrations of certificates.
(d) When this Letter of Transmittal is signed by the registered holder(s) of
the shares tendered hereby, no endorsements of certificate(s) representing
such shares or separate stock powers are required unless payment is to be
made or the certificates for shares not tendered or not purchased are to be
issued to a person other than the registered holder(s). SIGNATURE(S) ON
SUCH CERTIFICATE(S) MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION. If this
Letter of Transmittal is signed by a person other than the registered
holder(s) of the certificate(s) listed, or if payment is to be made or
certificates for shares not tendered or not purchased are to be issued to a
person other than the registered holder(s) thereof, the certificate(s) must
be
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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(s), and the signature(s) on such certificates or stock power(s)
must be guaranteed by an Eligible Institution. See Instruction 1.
(e) If this Letter of Transmittal or any certificate(s) or stock power(s) are
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or any other person acting in a fiduciary or
representative capacity, such person should so indicate when signing and
must submit proper evidence to the depositary that is satisfactory to
Holdings of their authority so to act.
6. STOCK TRANSFER TAXES. Except as provided in this Instruction 6, no
stock transfer tax stamps or funds to cover such stamps need to accompany this
Letter of Transmittal. Holdings will pay or cause to be paid any stock transfer
taxes payable on the transfer to it of shares purchased under the tender offer.
However, if:
(a) payment of the purchase price is to be made to any person other than the
registered holder(s); or
(b) certificates representing tendered shares are registered in the name(s) of
any person(s) other than the person(s) signing this Letter of Transmittal;
or
(c) shares not tendered or not accepted for purchase are to be registered in
the name(s) of any person(s) other than the registered holder(s);
the depositary will deduct from the purchase price the amount of any stock
transfer taxes (whether imposed on the registered holder(s), such other
person(s) or otherwise) payable on account of the transfer to such person,
unless satisfactory evidence of the payment of such taxes or an exemption
from them is submitted.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If certificate(s) for shares
not tendered or not purchased and/or check(s) are to be issued in the name of a
person other than the signer of this Letter of Transmittal or if such
certificates and/or check(s) are to be sent to someone other than the person
signing this Letter of Transmittal or to the signer at a different address, the
box captioned "Special Payment Instructions" and/or the box captioned "Special
Delivery Instructions" on this Letter of Transmittal should be completed as
applicable and signatures must be guaranteed as described in Instructions 1 and
5.
8. IRREGULARITIES. All questions as to the price to be paid for the shares
and the validity, form, eligibility, including time of receipt, and acceptance
for payment of any tender of shares will be determined by Holdings in its sole
discretion, which determinations shall be final and binding on all parties.
Holdings reserves the absolute right to reject any or all tenders of shares it
determines not be in proper form or the acceptance of which or payment for which
may, in the opinion of Holdings, be unlawful. Holdings also reserves the
absolute right to waive any of the conditions of the tender offer and any defect
or irregularity in the tender of any particular shares or any particular
stockholder, and Holding's interpretation of the terms of the tender offer,
including these instructions, will be final and binding on all parties. In the
event a condition is waived with respect to any particular stockholder, the same
condition will be waived with respect to all stockholders. No tender of shares
will be deemed to be properly made until all defects and irregularities have
been cured or waived. Unless waived, any defects or irregularities in connection
with tenders must be cured within such time as Holdings shall determine. None of
Holdings, the depositary, the Information Agent or any other person is or will
be obligated to give notice of any defects or irregularities in tenders and none
of them will incur any liability for failure to give any such notice.
9. QUESTIONS AND REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Any
questions or requests for assistance or for additional copies of the Offer to
Purchase, this Letter of Transmittal, the Notice of
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Guaranteed Delivery and other related materials may be directed to the
Information Agent at the telephone number and address set forth on the back
cover of this Letter of Transmittal. You may also contact your broker, dealer,
commercial bank or trust company for assistance concerning the tender offer.
10. TAX IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. Under the U.S.
federal income tax backup withholding rules, unless an exemption applies under
the applicable law and regulations, 28% of the gross proceeds payable to a
stockholder or other payee pursuant to the tender offer must be withheld and
remitted to the U.S. Internal Revenue Service ("IRS") unless the stockholder or
other payee provides its taxpayer identification number ("TIN") (employer
identification number or social security number) to the depositary (as payer)
and certifies under penalty of perjury that such number is correct. Therefore,
each tendering stockholder should complete and sign the Substitute Form W-9
included as part of the Letter of Transmittal so as to provide the information
and certification necessary to avoid backup withholding, unless such stockholder
otherwise establishes to the satisfaction of the depositary that it is not
subject to backup withholding. If the depositary is not provided with the
correct TIN, the tendering stockholder also may be subject to penalties imposed
by the IRS. The box in Part 3 of the form should be checked if the tendering
stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked and the
depositary is not provided with a TIN prior to payment, the depositary will
withhold 28% on all such payments. If withholding results in an overpayment of
taxes, a refund may be obtained. Certain "exempt recipients" (including, among
others, certain Non-United States Holders (as defined below) and some
corporations) are not subject to these backup withholding requirements. In order
for a Non-United States Holder to qualify as an exempt recipient, that
stockholder must submit an IRS Form W-8BEN (or other applicable IRS Form),
signed under penalties of perjury, attesting to that stockholder's exempt
status. Such statement can be obtained from the depositary.
11. WITHHOLDING ON NON-UNITED STATES HOLDERS. Even if a Non-United States
Holder (as defined below) has provided the required certification to avoid
backup withholding, the depositary will withhold United States federal income
taxes equal to 30% of the gross payments payable to a Non-United States Holder
or such holder's agent unless the depositary determines that a reduced rate of
withholding is available pursuant to a tax treaty or that an exemption from
withholding is applicable because such gross proceeds are effectively connected
with the Non-United States Holder's conduct of a trade or business within the
United States. For this purpose, a "Non-United States Holder" is any stockholder
that for United States federal income tax purposes is not (i) a citizen or
resident of the United States, (ii) a corporation or partnership created or
organized in or under the laws of the United States or any State or division
thereof (including the District of Columbia), (iii) an estate the income of
which is subject to United States federal income taxation regardless of the
source of such income, or (iv) a trust (a) if a court within the United States
is able to exercise primary supervision over the administration of the trust and
(b) one or more U.S. persons have the authority to control all of the
substantial decisions of the trust, or certain trusts considered U.S. persons
for federal income tax purposes. In order to obtain a reduced rate of
withholding pursuant to a tax treaty, a Non-United States Holder must deliver to
the depositary before the payment a properly completed and executed IRS Form
W-8BEN (or other applicable IRS Form). In order to obtain an exemption from
withholding on the grounds that the gross proceeds paid pursuant to the tender
offer are effectively connected with the conduct of a trade or business within
the United States, a Non-United States Holder must deliver to the depositary a
properly completed and executed IRS Form W-8ECI. The depositary will determine a
stockholder's status as a Non-United States Holder and eligibility for a reduced
rate of, or an exemption from, withholding by reference to outstanding
certificates or statements concerning eligibility for a reduced rate of, or
exemption from, withholding (e.g., IRS Form W-8BEN or IRS Form W-8ECI) unless
facts and circumstances indicate that such reliance is not warranted. A
Non-United States Holder may be eligible to obtain a refund of all or a portion
of any tax withheld if such Non-United States Holder meets those tests described
in Section 14 of
12
the Offer to Purchase that would characterize the exchange as a sale (as opposed
to a dividend) or is otherwise able to establish that no tax or a reduced amount
of tax is due.
NON-UNITED STATES HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING
THE APPLICATION OF UNITED STATES FEDERAL INCOME TAX WITHHOLDING, INCLUDING
ELIGIBILITY FOR A WITHHOLDING TAX REDUCTION OR EXEMPTION, AND THE REFUND
PROCEDURE.
12. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. If you are unable to
locate the Certificate(s) representing your shares, check the box on page 2 and
submit this Letter of Transmittal to the Depositary. The Depositary will mail
you instructions on the procedures to follow. You should submit this Letter of
Transmittal promptly so that you can timely deliver an affidavit of lost
certificate and other required document(s) to the Depositary before the
expiration date.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED PHOTOCOPY OF IT
(TOGETHER WITH CERTIFICATE(S) FOR SHARES OR CONFIRMATION OF BOOK-ENTRY TRANSFER
AND ALL OTHER REQUIRED DOCUMENTS) OR, IF APPLICABLE, THE NOTICE OF GUARANTEED
DELIVERY MUST BE RECEIVED BY THE DEPOSITARY BEFORE 5:00 P.M., DENVER TIME, ON
THE EXPIRATION DATE.
13
IMPORTANT TAX INFORMATION
Under the Federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required by law to provide the depositary (as payer)
with such stockholder's correct TIN on Substitute Form W-9 below. If such
stockholder is an individual, the TIN is such stockholder's social security
number. If the depositary is not provided with the correct TIN, the stockholder
may be subject to a $50 penalty imposed by the Internal Revenue Service and
payments that are made to such stockholder with respect to shares purchased
pursuant to the tender offer may be subject to backup withholding of 28%.
Certain stockholders including, among others, certain corporations and certain
foreign individuals, are not subject to these backup withholding and reporting
requirements. In order for a Non-United States Holder to qualify as an exempt
recipient, such stockholder must submit an appropriate Form W-8, signed under
penalties of perjury, attesting to such stockholder's exempt status. The
appropriate Form W-8 can be obtained from the depositary. Exempt stockholders
should furnish their TIN, write "Exempt" on the face of the Substitute Form W-9,
and sign, date and return the Substitute Form W-9 to the Deputy. See the
accompanying Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional instructions. A stockholder should consult
his or her tax advisor as to such stockholder's qualification for an exemption
from backup withholding and the procedure for obtaining such exemption.
If backup withholding applies, the depositary is required to withhold 28% of any
payments made to the stockholder. 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 Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a stockholder with
respect to Shares purchased pursuant to the tender offer, the stockholder is
required to notify the depositary of such stockholder's correct TIN by
completing the form below certifying that (a) the TIN provided on Substitute
Form W-9 is correct (or that such stockholder is awaiting a TIN) and (b) that
(i) such stockholder has not been notified by the Internal Revenue Service that
such stockholder 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 stockholder that such stockholder is no longer subject to backup
withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the depositary the social security number or
employer identification number of the record holder of the Shares tendered
hereby. If the Shares are in more than one name or are not in the name of the
actual owner, consult the accompanying Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional guidance on which
number to report. If the tendering stockholder has not been issued a TIN and has
applied for a number or intends to apply for a number in the near future, the
stockholder should write "Applied For" in the space provided for the TIN in Part
I, and sign and date the Substitute Form W-9 and the Certificate of Awaiting
Taxpayer Identification Number. If "Applied For" is written in Part I and the
depositary is not provided with a TIN by the time for payment, the depositary
will withhold 28% of all payments of the purchase price to such stockholder.
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ALL TENDERING HOLDERS MUST COMPLETE THE FOLLOWING:
======================================================================================================================
PAYOR'S NAME:
COMPUTERSHARE TRUST COMPANY, INC.
SUBSTITUTE FORM W-9 PART 1 - PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security
Department of the Treasury THE RIGHT AND CERTIFY BY SIGNING AND DATING Number OR
Internal Revenue Service BELOW: Employer
Identification
PAYOR'S REQUEST FOR Name:_____________________________________________ Number:
TAXPAYER
IDENTIFICATION Address:__________________________________________ ______________
NUMBER ("TIN")
City, State, Zip Code:____________________________
======================================================================================
PART 2 - CERTIFICATION For Payees exempt
Under penalties of perjury, I certify that: from back-up
(1) The number shown on this form is my correct TIN (or I am withholding,
waiting for a number to be issued to me); check the Exempt
(2) I am not subject to backup withholding because: (a) am box below:
exempt from backup withholding, or (b) I have not been notified
by the Internal Revenue Service (the "IRS") that I am subject to [ ] Exempt
backup withholding as a result of a failure to report all
interest on dividends, or (c) the IRS has notified me that I am
no longer subject to backup withholding; and
(3) I am a U.S. person (including a U.S. resident alien).
CERTIFICATION INSTRUCTIONS-- You must cross out item (2) above
if you have been notified by the IRS that you are currently
subject to backup withholding because 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 instructions in the enclosed
guidelines.) The IRS does not require your consent to any
provision of this document other than the certifications
required to avoid backup withholding.
Signature:__________________________________________ Date:__________
======================================================================================================================
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THIS OFFER. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATION IF YOU ARE AWAITING (OR WILL SOON
APPLY FOR) A TAXPAYER IDENTIFICATION NUMBER.
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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, notwithstanding
the information I provided in Part I of the Substitute Form W-9 (and the fact
that I have completed this Certificate of Awaiting Taxpayer Identification
Number), if I do not provide a correct taxpayer identification number to the
depositary by the time of payment, 28% of all reportable payments made to me
thereafter will be withheld until I provide a number.
Signature: ____________________________ Date: ___________
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GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.
Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
PURPOSE OF FORM
A person who is required to file an information return with IRS must obtain your
correct taxpayer identification number (TIN) to report income paid to you, real
estate transactions, mortgage interest you paid, acquisition or abandonment of
secured property, cancellation of debt, or contributions you made to an IRA.
U.S. person. Use Form W-9 only if you are a U.S. person (including a resident
alien), to provide your correct TIN to the person requesting it (the requester)
and, when applicable, to:
1. Certify the TIN you are giving is correct (or you are waiting for a number
to be issued),
2. Certify you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee.
Foreign person. If you are a foreign person, use the appropriate Form W-8
(see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign
Entities). Nonresident alien who becomes a resident alien. Generally, only
a nonresident alien individual may use the terms of a tax treaty to reduce
or eliminate U.S. tax on certain types of income. However, most tax
treaties contain a provision known as a "saving clause." Exceptions
specified in the saving clause may permit an exemption from tax to
continue for certain types of income even after the recipient has
otherwise become a U.S. resident alien for tax purposes. If you are a U.S.
resident alien who is relying on an exception contained in the saving
clause of a tax treaty to claim an exemption from U.S. tax on certain
types of income, you must attach a statement that specifies the following
five items:
1. The treaty country. Generally, this must be the same treaty under
which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the
saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from
tax.
5. Sufficient facts to justify the exemption from tax under the terms
of the treaty article.
If you are a nonresident alien or a foreign entity not subject to backup
withholding, give the requester the appropriate completed Form W-8.
What is Backup Withholding? Persons making certain payments to you must under
certain conditions withhold and pay to the IRS 28% of such payments. This is
called "backup withholding." Payments that may be subject to backup withholding
include interest, dividends, broker and barter exchange
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transactions, rents, royalties, nonemployee pay, and certain payments from
fishing boat operators. Real estate transactions are not subject to backup
withholding.
You will not be subject to backup withholding on payments you receive if you
give the requester your correct TIN, make the proper certifications, and report
all your taxable interest and dividends on your tax return. Payments you receive
will be subject to backup withholding if:
1. You do not furnish your TIN to the requester, or
2. You do not certify your TIN when required (see the Part II instructions
below for details), or
3. The IRS tells the requester that you furnished an incorrect TIN, or
4. The IRS tells you that you are subject to backup withholding because you
did not report all your interest and dividends on your tax return (for
reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup
withholding under 4 above (for reportable interest and dividend accounts
opened after 1983 only). Certain payees and payments are exempt from
backup withholding. See the instructions below.
PENALTIES
FAILURE TO FURNISH YOUR TIN. If you fail to furnish your correct TIN to a
requester, you are subject to a penalty of $50 for each such failure unless your
failure is due to reasonable cause and not to willful neglect.
CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you make a
false statement with no reasonable basis that results in no backup withholding,
you are subject to a penalty of $500.
CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Willfully falsifying certifications
or affirmations may subject you to criminal penalties including fines and/or
imprisonment.
MISUSE OF TINS. If the requester discloses or uses TINs in violation of Federal
law, the requester may be subject to civil and criminal penalties.
EXEMPT FROM BACKUP WITHHOLDING
Generally, individuals (including sole proprietors) are not exempt from backup
withholding. Corporations are exempt from backup withholding for certain
payments, such as interest and dividends.
EXEMPT PAYEES. Backup withholding is not required on any payments made to the
following payees:
1. An organization exempt from tax under section 501(a), any IRA or a
custodial account under section 403(b)(7) if the account satisfies the
requirements of section 401(f)(2);
2. The United States or any of its agencies or instrumentalities;
3. A state, the District of Columbia, a possession of the United States, or
any of their political subdivisions or instrumentalities;
4. A foreign government or any of its political subdivisions, agencies, or
instrumentalities; or
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5. An international organization or any of its agencies or instrumentalities.
Other payees that may be exempt from backup withholding include:
6. A corporation;
7. A foreign central bank of issue;
8. A dealer in securities or commodities required to register in the United
States, the District of Columbia, or a possession of the United States;
9. A futures commission merchant registered with the Commodity Futures
Trading Commission;
10. A real estate investment trust;
11. An entity registered at all times during the tax year under the Investment
Company Act of 1940;
12. A common trust fund operated by a bank under section 584(a);
13. A financial institution;
14. A middleman known in the investment community as a nominee or custodian;
or
15. A trust exempt from tax under section 664 or described in section 4947.
The chart below shows types of payments that may be exempt from backup
withholding. The chart applies to the exempt recipients listed above, 1 through
15.
IF THE PAYMENT IS FOR: THEN THE PAYMENT IS EXEMPT FOR:
Interest and dividend All exempt payments recipients except
for 9
Broker transactions Exempt recipients 1 through 13. Also, a
person registered under the Investment
Advisers Act of 1940 who regularly acts as
a broker
Barter exchange transactions and Exempt recipients 1 through 5
patronage dividends
Payments over $600 required to be Generally, exempt recipients 1
reported and direct sales over through 7 (2)
$5,000 (1)
1. See Form 1099-MISC. Miscellaneous Income, and its instructions.
2. However, the following payments made to a corporation (including gross
proceeds paid to an attorney under section 6045(f), even if the attorney
is a corporation) and reportable on Form 1099-MISC are not exempt from
backup withholding: medical and health care payments; attorneys' fees; and
payments for services paid by a Federal executive agency.
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PART I. TAXPAYER IDENTIFICATION NUMBER (TIN)
ENTER YOUR TIN IN THE APPROPRIATE BOX. If you are a resident alien and you do
not have and are not eligible to get an SSN, your TIN is your IRS individual
taxpayer identification number (ITIN). Enter it in the social security number
box. If you do not have an ITIN, see How To Obtain a TIN below. If you are a
sole proprietor and you have an EIN, you may enter either your SSN or EIN.
However, the IRS prefers that you use your SSN.
If you are a single-owner LLC that is disregarded as an entity separate from its
owner, enter your SSN (or EIN, if you have one). If the LLC is a corporation,
partnership, etc., enter the entity's EIN.
HOW TO OBTAIN A TIN. If you do not have a TIN, apply for one immediately. To
apply for an SSN, get Form SS-5, Application for a Social Security Card, from
your local Social Security Administration office or get this form on-line at
www.ssa.gov/online/ss5.html. You may also get this form by calling
1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer
Identification Number, to apply for an ITIN, or Form SS-4, Application for
Employer Identification Number, to apply for an EIN. You can get Forms W-7 and
SS-4 from the IRS by calling 1-800-TAX-FORM (1-800-829-3676) or from the IRS Web
Site at www.irs.gov.
If you are asked to complete Form W-9 but do not have a TIN, write "Applied For"
in the space for the TIN, sign and date the form, and give it to the requester.
For interest and dividend payments, and certain payments made with respect to
readily tradable instruments, generally you will have 60 days to get a TIN and
give it to the requester before you are subject to backup withholding on
payments. The 60-day rule does not apply to other types of payments. You will be
subject to backup withholding on all such payments until you provide your TIN to
the requester.
20
PART II. CERTIFICATION
To establish to the withholding agent that you are a U.S. person, or resident
alien, sign Form W-9. For a joint account, only the person whose TIN is shown in
Part I should sign. Exempt recipients, see Exempt From Backup Withholding above.
What Name and Number To Give the Requester
- ------------------------------------------
FOR THIS TYPE OF ACCOUNT GIVE NAME AND SSN OF:
1. Individual The individual
2. Two or more individuals (joint account) The actual owner of the account or, if combined funds,
the first individual on the account (1)
3. Custodian account of a minor (Uniform Gift The minor (2)
to Minors Act)
4. a. The usual revocable saving trust (grantor is The grantor-trustee (1)
also trustee)
b. So-called trust account that is not a legal or The actual owner (3)
valid trust under state law
5. Sole proprietorship or single-owner LLC The owner (3)
FOR THIS TYPE OF ACCOUNT: GIVE THE NAME AND EIN OF:
6. Sole proprietorship or single owner LLC The owner (3)
7. A valid trust, estate, or pension trust Legal entity (4)
8. Corporate or LLC electing corporate status on The corporation
Form 8832
9. Association, club, religious, charitable, The organization
educational, or other tax-exempt organization
10. Partnership or multi-member LLC The partnership
11. A broker or registered nominee The broker or nominee
12. Account with the Department of Agriculture The public entity
in the name of a public entity (such as a state
or local government, school district, or
prison) that receives agricultural program
payments
1. List first and circle the name of the person whose number you
furnish. If only one person on a joint account has an SSN, that
person's number must be furnished
2. Circle the minor's name and furnish the minor's SSN.
3. You must show your individual name, but you may also enter your
business or "DBA" name. You may use either your SSN or EIN (if you
have one).
4. List first and circle the name of the legal trust, estate, or
pension trust. (Do not furnish the TIN of the personal
representative or trustee unless the legal entity itself is not
designated in the account title.)
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Questions and requests for assistance may be directed to the Information Agent
at its addresses and telephone numbers set forth below. Additional copies of the
Offer to Purchase, this Letter of Transmittal or other related tender offer
materials may be obtained from the Information Agent. Stockholders may also
contact their broker, dealer, commercial bank or trust company or other nominee
for assistance concerning the tender offer.
THE INFORMATION AGENT FOR THE TENDER OFFER IS:
DIANE ALLEN
16 E STREET SOUTHWEST
ARDMORE, OKLAHOMA 74301
580-226-6700 EXT 207
22