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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934)
------------------------
CASTLE & COOKE, INC.
(Name of issuer)
CASTLE & COOKE, INC.
(Name of person(s) filing statement)
------------------------
COMMON STOCK, NO PAR VALUE
(Title of class of securities)
------------------------
14843310 10
(CUSIP number of class of securities)
KEVIN R. SHANEY, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
CASTLE & COOKE, INC.
10900 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 208-3636
(Name, address and telephone number of person authorized to receive notices
and communications on behalf of the person(s) filing statement)
------------------------
COPY TO:
CHARLES F. NIEMETH, ESQ.
O'MELVENY & MYERS LLP
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022-4611
(212) 326-2085
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MAY 15, 1998
(Date tender offer first published, sent or given to security holders)
------------------------
CALCULATION OF FILING FEE
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Transaction valuation*: $58,500,000 Amount of filing fee $ 11,700
</TABLE>
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/ / Check box if any part of the fee is offset as provided by Rule 0-ll(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form
or schedule and the date of its filing.
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Amount Previously Paid: N/A Filing Party: N/A
Form or Registration No.: N/A Date Filed: N/A
</TABLE>
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*Based upon the purchase of 3,000,000 shares at the maximum tender offer price,
$19.50 per share.
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ITEM 1. SECURITY AND ISSUER.
(a) The Issuer of the securities to which this Issuer Tender Offer Statement
on Schedule 13E-4 (the "Statement") relates is Castle & Cooke, Inc., a Hawaii
corporation (the "Company"), and the address of its principal executive office
is 10900 Wilshire Boulevard, Los Angeles, California 90024.
(b) This Statement relates to a tender offer by the Company to purchase
3,000,000 shares (or such lesser number of shares as are validly tendered) of
its common stock, no par value (the "Shares"), at prices, net to the seller in
cash, not greater than $19.50 nor less than $17.75 per Share, specified by
stockholders, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated May 15, 1998 (the "Offer to Purchase"), and in the
related Letter of Transmittal (which together constitute the "Offer"), copies of
which are filed as Exhibits (a)(1) and (a)(2), respectively. The information set
forth in the "Introduction," "Section 1. Number of Shares; Proration," "Section
8. Interest of Directors and Executive Officers; Transactions and Arrangements
Concerning the Shares," "Section 9. Background and Purpose of the Offer" and
"Section 15. Extension of the Offer; Termination; Amendments" of the Offer to
Purchase is incorporated herein by reference.
(c) The information set forth in "Introduction" and "Section 7. Price Range
of Shares; Dividends" of the Offer to Purchase is incorporated herein by
reference.
(d) This Statement is being filed by the Issuer.
ITEM 2. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(b) The information set forth in "Section 11. Source and Amount of
Funds" of the Offer to Purchase is incorporated herein by reference.
ITEM 3. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE ISSUER OR
AFFILIATE.
The information set forth in the "Introduction" and "Section 9. Background
and Purpose of the Offer" of the Offer to Purchase is incorporated herein by
reference.
(a)-(j) The information set forth in the "Introduction," "Section 8.
Interest of Directors and Executive Officers; Transactions and Arrangements
Concerning the Shares," "Section 9. Background and Purpose of the Offer,"
"Section 11. Source and Amount of Funds" and "Section 12. Effects of the Offer
on the Market for Shares; Registration under the Exchange Act" of the Offer to
Purchase is incorporated herein by reference.
ITEM 4. INTEREST IN SECURITIES OF THE ISSUER.
The information set forth in "Section 8. Interest of Directors and Executive
Officers; Transactions and Arrangements Concerning the Shares" of the Offer to
Purchase is incorporated herein by reference.
ITEM 5. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE ISSUER'S SECURITIES.
The information set forth in the "Introduction" and "Section 8. Interest of
Directors and Executive Officers; Transactions and Arrangements Concerning the
Shares" of the Offer to Purchase is incorporated herein by reference.
ITEM 6. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in the "Introduction" and "Section 16. Fees and
Expenses" of the Offer to Purchase is incorporated herein by reference.
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ITEM 7. FINANCIAL INFORMATION.
(a)-(b) The information set forth in "Section 10. Certain Information About
the Company" of the Offer to Purchase is incorporated herein by reference.
ITEM 8. ADDITIONAL INFORMATION.
(a) Not applicable.
(b) The information set forth in "Section 13. Certain Legal Matters;
Regulatory Approvals" of the Offer to Purchase is incorporated herein by
reference.
(c) The information set forth in "Section 12. Effects of the Offer on the
Market for Shares; Registration under the Exchange Act" of the Offer to Purchase
is incorporated herein by reference.
(d) Not applicable.
(e) Reference is hereby made to the Offer to Purchase and the related Letter
of Transmittal, copies of which are attached hereto as Exhibits (a)(1) and
(a)(2), respectively, and incorporated in their entirety herein by reference.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
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(a)(1) Offer to Purchase, dated May 15, 1998
(a)(2) Letter of Transmittal
(a)(3) Notice of Guaranteed Delivery
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9
(a)(7) News Release issued by the Company on May 11, 1998
(a)(8) Letter to the Company's Stockholders from David H. Murdock, Chairman of the
Board and Chief Executive Officer of the Company, dated May 15, 1998
(a)(9) Summary Advertisement, dated May 15, 1998
(b)(1) Amended and Restated Credit Agreement dated as of May 16, 1997, among Castle &
Cooke, Inc., as Borrower, and the Lenders named therein, and The Chase Manhattan
Bank, as Agent, Administrative Agent and Collateral Agent (incorporated herein
by reference to Exhibit 4.2 to the Company's Form 10-Q for the quarterly period
ended June 30, 1997, File No. 1-14020).
(c) Not applicable
(d) Not applicable
(e) Not applicable
(f) Not applicable
</TABLE>
3
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
CASTLE & COOKE, INC.
By: /s/ Kevin R. Shaney
-----------------------------------
Name: Kevin R. Shaney
Title: Vice President and General
Counsel
Dated: May 15, 1998
4
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<C> <S>
(a)(1) Offer to Purchase, dated May 15, 1998
(a)(2) Letter of Transmittal
(a)(3) Notice of Guaranteed Delivery
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9
(a)(7) News Release issued by the Company on May 11, 1998
(a)(8) Letter to the Company's Stockholders from David H. Murdock, Chairman of the Board and Chief Executive
Officer of the Company, dated May 15, 1998.
(a)(9) Summary Advertisement, dated May 15, 1998
(b)(1) Amended and Restated Credit Agreement dated as of May 16, 1997, among Castle & Cooke, Inc., as
Borrower, and the Lenders named therein, and The Chase Manhattan Bank, as Agent, Administrative Agent
and Collateral Agent (incorporated herein by reference to Exhibit 4.2 to the Company's Form 10-Q for
the quarterly period ended June 30, 1997, File No. 1-14020).
(c) Not applicable
(d) No applicable
(e) Not applicable
(f) Not applicable
</TABLE>
<PAGE>
Castle & Cooke, Inc.
OFFER TO PURCHASE FOR CASH
UP TO 3,000,000 SHARES OF ITS COMMON STOCK
AT A PURCHASE PRICE NOT GREATER THAN $19.50
NOR LESS THAN $17.75 PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY,
JUNE 19, 1998, UNLESS THE OFFER IS EXTENDED.
Castle & Cooke, Inc., a Hawaii corporation (the "Company"), hereby invites
its stockholders to tender shares of its common stock, no par value (the
"Shares"), to the Company at prices, net to the seller in cash, not greater than
$19.50 nor less than $17.75 per Share, specified by such stockholders, upon the
terms and subject to the conditions set forth in this Offer to Purchase and in
the related Letter of Transmittal (which together constitute the "Offer"). The
Company will determine a single per Share price (not greater than $19.50 nor
less than $17.75 per Share) (the "Purchase Price") that it will pay for Shares
validly tendered pursuant to the Offer taking into account the number of Shares
so tendered and the prices specified by tendering stockholders. The Company will
select the Purchase Price which will allow it to buy 3,000,000 Shares (or such
lesser number of Shares as are validly tendered at prices not greater than
$19.50 nor less than $17.75 per Share) pursuant to the Offer. All Shares validly
tendered at prices at or below the Purchase Price will be purchased at the
Purchase Price, net to the seller in cash, upon the terms and subject to the
conditions of the Offer, including the proration terms hereof.
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED.
THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE SECTION 6.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
ANY STOCKHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES.
STOCKHOLDERS MUST MAKE THEIR OWN DECISIONS WHETHER TO TENDER SHARES AND, IF SO,
HOW MANY SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH SHARES SHOULD BE
TENDERED.
THE COMPANY HAS BEEN ADVISED THAT NONE OF ITS DIRECTORS OR EXECUTIVE
OFFICERS INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER.
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal or the Notice of Guaranteed Delivery may
be directed to the Information Agent at its address and telephone number set
forth on the back cover of this Offer to Purchase.
May 15, 1998
<PAGE>
IMPORTANT
Any stockholder desiring to tender all or any portion of his Shares should
either (1) complete and sign the Letter of Transmittal or a facsimile copy
thereof in accordance with the instructions in the Letter of Transmittal, mail
or deliver it and any other required documents to the Depositary, BankBoston,
N.A., and either mail or deliver his stock certificates for such Shares to the
Depositary or follow the procedure for book-entry delivery set forth in Section
3, or (2) request his broker, dealer, commercial bank, trust company or other
nominee to effect the transaction for him. A stockholder having Shares
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee must contact that broker, dealer, commercial bank, trust company
or other nominee if such stockholder desires to tender such Shares. Stockholders
who desire to tender Shares and whose certificates for such Shares are not
immediately available or who cannot comply with the procedure for book-entry
transfer by the expiration of the Offer must tender such Shares by following the
procedures for guaranteed delivery set forth in Section 3. STOCKHOLDERS MUST
PROPERLY COMPLETE THE LETTER OF TRANSMITTAL INCLUDING THE SECTION OF THE LETTER
OF TRANSMITTAL RELATING TO THE PRICE AT WHICH THEY ARE TENDERING SHARES IN ORDER
TO EFFECT A VALID TENDER OF THEIR SHARES.
NO PERSON HAS BEEN AUTHORIZED TO MAKE ANY RECOMMENDATION ON BEHALF OF THE
COMPANY AS TO WHETHER STOCKHOLDERS SHOULD TENDER OR REFRAIN FROM TENDERING
SHARES PURSUANT TO THE OFFER. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFER OTHER
THAN THOSE CONTAINED IN THIS OFFER TO PURCHASE OR IN THE LETTER OF TRANSMITTAL.
IF GIVEN OR MADE, SUCH RECOMMENDATION, INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY.
(ii)
<PAGE>
SUMMARY
This general summary is provided for the convenience of the Company's
stockholders and is qualified in its entirety by reference to the full text and
more specific details of this Offer to Purchase.
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Number of Shares to be 3,000,000 Shares (or such lesser number of Shares as
Purchased are validly tendered).
Purchase Price The Company will determine a single per Share net cash
price, not greater than $19.50 nor less than $17.75
per Share, that it will pay for Shares validly
tendered. All Shares acquired in the Offer will be
acquired at the Purchase Price even if tendered below
the Purchase Price. Each stockholder desiring to
tender Shares must specify in the Letter of
Transmittal the minimum price (not greater than $19.50
nor less than $17.75 per Share, in multiples of $.125)
at which such stockholder is willing to have Shares
purchased by the Company.
How to Tender Shares See Section 3. Call the Information Agent or consult
your broker for assistance.
Brokerage Commissions None.
Stock Transfer Tax None, if payment is made to the registered holder.
Expiration and Proration Dates Friday, June 19, 1998, at 12:00 Midnight, New York
City time, unless extended by the Company.
Payment Date As soon as practicable after the Expiration Date (as
defined in Section 1).
Position of the Company and its Neither the Company nor its Board of Directors makes
Board of Directors any recommendation to any stockholder as to whether to
tender or refrain from tendering Shares.
Withdrawal Rights Tendered Shares may be withdrawn at any time until
12:00 Midnight, New York time, on Friday, June 19,
1998, unless the Offer is extended by the Company and,
unless previously purchased, after 12:00 Midnight, New
York City time, on Monday, July 13, 1998. See Section
4.
Odd Lots There will be no proration of Shares tendered by any
stockholder who owns beneficially fewer than 100
Shares in the aggregate as of May 11, 1998, and
continues to beneficially to own fewer than 100 Shares
on the Expiration Date, and who tenders all of such
Shares at or below the Purchase Price prior to the
Expiration Date and who checks the "Odd Lots" box in
the Letter of Transmittal.
</TABLE>
THE COMPANY HAS NOT AUTHORIZED ANY PERSON TO MAKE ANY RECOMMENDATION ON
BEHALF OF THE COMPANY AS TO WHETHER STOCKHOLDERS SHOULD TENDER OR REFRAIN FROM
TENDERING SHARES PURSUANT TO THE OFFER. THE COMPANY HAS NOT AUTHORIZED ANY
PERSON TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION WITH
THE OFFER ON BEHALF OF THE COMPANY OTHER THAN THOSE CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL. DO NOT RELY ON ANY SUCH RECOMMENDATION
OR ANY SUCH INFORMATION OR REPRESENTATION, IF GIVEN OR MADE, AS HAVING BEEN
AUTHORIZED BY THE COMPANY.
(iii)
<PAGE>
TABLE OF CONTENTS
<TABLE>
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SECTION PAGE
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Summary............................................................... (iii)
Introduction.......................................................... 1
1. Number of Shares; Proration........................................... 2
2. Tenders by Holders of Fewer than 100 Shares........................... 3
3. Procedure for Tendering Shares........................................ 4
4. Withdrawal Rights..................................................... 6
5. Purchase of Shares and Payment of Purchase Price...................... 7
6. Certain Conditions of the Offer....................................... 8
7. Price Range of Shares; Dividends...................................... 10
8. Interest of Directors and Executive Officers; Transactions and
Arrangements Concerning the Shares.................................. 10
9. Background and Purpose of the Offer................................... 11
10. Certain Information About the Company................................. 12
11. Source and Amount of Funds............................................ 16
12. Effects of the Offer on the Market for Shares;
Registration Under the Exchange Act................................. 17
13. Certain Legal Matters; Regulatory Approvals........................... 17
14. Certain Federal Income Tax Consequences............................... 17
15. Extension of the Offer; Termination; Amendments....................... 20
16. Fees and Expenses..................................................... 21
17. Miscellaneous......................................................... 21
</TABLE>
<PAGE>
TO THE HOLDERS OF COMMON STOCK OF
CASTLE & COOKE, INC.:
INTRODUCTION
The Company hereby invites its stockholders to tender Shares to the Company
at prices, net to the seller in cash, not greater than $19.50 nor less than
$17.75 per Share, specified by such stockholders, upon the terms and subject to
the conditions set forth in the Offer. The Company will determine a single per
Share Purchase Price (not greater than $19.50 nor less than $17.75 per Share)
that it will pay for Shares validly tendered pursuant to the Offer taking into
account the number of Shares so tendered and the prices specified by tendering
stockholders. The Company will select the Purchase Price which will allow it to
buy 3,000,000 Shares (or such lesser number of Shares as are validly tendered at
prices not greater than $19.50 nor less than $17.75 per Share) pursuant to the
Offer. All Shares validly tendered at prices at or below the Purchase Price will
be purchased at the Purchase Price, net to the seller in cash, upon the terms
and subject to the conditions of the Offer, including the proration terms
described below.
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED.
THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE SECTION 6.
If, before the Expiration Date (as defined in Section 1), more than
3,000,000 Shares (or such greater number of Shares as the Company may elect to
purchase) are validly tendered at or below the Purchase Price, the Company will
accept Shares for purchase first from all Odd Lot Owners (as defined in Section
2) who validly tender all their Shares at or below the Purchase Price and then
on a pro rata basis, if necessary, from all other stockholders who validly
tender Shares at or below the Purchase Price. See Sections 1 and 2. The Company
will return all Shares not purchased under the Offer, including Shares tendered
and not withdrawn at prices greater than the Purchase Price and Shares not
purchased because of proration. Tendering stockholders will not be obligated to
pay brokerage fees or commissions, solicitation fees or, subject to Instruction
7 of the Letter of Transmittal, stock transfer taxes on the Company's purchase
of Shares pursuant to the Offer. In addition, the Company will pay all fees and
expenses of BankBoston, N.A. (the "Depositary") and D.F. King & Co., Inc. (the
"Information Agent") in connection with the Offer. See Section 16.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
ANY STOCKHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES.
STOCKHOLDERS MUST MAKE THEIR OWN DECISIONS WHETHER TO TENDER SHARES AND, IF SO,
HOW MANY SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH SHARES SHOULD BE
TENDERED. THE COMPANY HAS BEEN ADVISED THAT NONE OF ITS DIRECTORS OR EXECUTIVE
OFFICERS INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER.
Shares of the Company have consistently traded at prices significantly below
their book value, and the Board of Directors believes that the Shares are
undervalued. The Board of Directors also believes the Company's financial
condition will allow it to meet the Company's first priority, which is to
operate its existing business, including through acquisitions, and to use its
debt capacity to fund the Offer. The Board of Directors believes that the
purchase of Shares is an attractive use of the Company's financial resources.
Accordingly, the Offer is consistent with the Company's long-term corporate goal
of increasing stockholder value.
Even after this share repurchase is completed, the Company will have ready
access to sources of capital sufficient to fund investments in the business, and
to operate its existing business.
THE OFFER PROVIDES STOCKHOLDERS WHO ARE CONSIDERING A SALE OF ALL OR A
PORTION OF THEIR SHARES THE OPPORTUNITY TO DETERMINE THE PRICE OR PRICES (NOT
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GREATER THAN $19.50 NOR LESS THAN $17.75 PER SHARE) AT WHICH THEY ARE WILLING TO
SELL THEIR SHARES AND, IF ANY SUCH SHARES ARE PURCHASED PURSUANT TO THE OFFER,
TO SELL THOSE SHARES FOR CASH WITHOUT THE USUAL TRANSACTION COSTS ASSOCIATED
WITH OPEN-MARKET SALES. IN ADDITION, THE OFFER MAY GIVE STOCKHOLDERS THE
OPPORTUNITY TO SELL SHARES AT PRICES GREATER THAN MARKET PRICES PREVAILING PRIOR
TO ANNOUNCEMENT OF THE OFFER.
As of the close of trading on May 11, 1998, there were 20,005,674 Shares
outstanding and 316,976 Shares issuable upon exercise of stock options
exercisable within 60 days under the Company's stock option plan. The 3,000,000
Shares that the Company is offering to purchase represent approximately 15% of
the Shares outstanding as of May 11, 1998 and approximately 14.76% of the sum of
the Shares then outstanding and all Shares which may be issuable upon the
exercise of stock options exercisable within 60 days. The Shares are traded on
the New York Stock Exchange, Inc. ("NYSE") under the symbol "CCS." On May 8,
1998, the last trading day prior to the announcement of the Offer, the closing
per Share sales price as reported on the NYSE Composite Tape was $17.00. On May
14, 1998, the last full trading day prior to the commencement of the Offer, the
closing per Share sales price as reported on the NYSE Composite Tape was $19.
THE COMPANY URGES STOCKHOLDERS TO OBTAIN CURRENT QUOTATIONS OF THE MARKET PRICE
OF THE SHARES.
1. NUMBER OF SHARES; PRORATION.
Upon the terms and subject to the conditions of the Offer, the Company will
accept for payment and purchase 3,000,000 Shares or such lesser number of Shares
as are validly tendered on or prior to the Expiration Date at a price
(determined in the manner set forth below) not greater than $19.50 nor less than
$17.75 per Share. THE TERM "EXPIRATION DATE" MEANS 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JUNE 19, 1998, UNLESS THE COMPANY, IN ITS SOLE DISCRETION,
SHALL HAVE EXTENDED THE PERIOD OF TIME DURING WHICH THE OFFER IS OPEN, IN WHICH
EVENT THE TERM "EXPIRATION DATE" SHALL REFER TO THE LATEST TIME AND DATE AT
WHICH THE OFFER, AS SO EXTENDED BY THE COMPANY, SHALL EXPIRE. See Section 15 for
a description of the Company's right to extend the time during which the Offer
is open and to delay, terminate or amend the Offer. See also Section 6. Subject
to Section 2, if the Offer is oversubscribed, Shares tendered at or below the
Purchase Price prior to the Expiration Date will be subject to proration. The
proration period also expires on the Expiration Date.
The Company will, upon the terms and subject to the conditions of the Offer,
determine the Purchase Price (not greater than $19.50 nor less than $17.75 per
Share) that it will pay for Shares validly tendered pursuant to the Offer taking
into account the number of Shares so tendered and the prices specified by
tendering stockholders. The Company will select a single per Share Purchase
Price that will allow it to buy 3,000,000 Shares (or such lesser number as are
validly tendered at prices not greater than $19.50 nor less than $17.75 per
Share) pursuant to the Offer. The Company reserves the right, in its sole
discretion, to purchase more than 3,000,000 Shares pursuant to the Offer.
If (i) the Company increases or decreases the price to be paid for Shares,
increases the number of Shares being sought and any such increase in the number
of Shares being sought exceeds 2% of the outstanding Shares, or decreases the
number of Shares being sought, and (ii) the Offer is scheduled to expire less
than ten business days from and including the date that notice of such increase
or decrease is first published, sent or given in the manner specified in Section
15, the Offer will be extended for ten business days from and including the date
of such notice. For purposes of the Offer, a "business day" means any day other
than a Saturday, Sunday or federal holiday and consists of the time period from
12:01 a.m. through 12:00 midnight, New York City time.
In accordance with Instruction 5 of the Letter of Transmittal, each
stockholder desiring to tender Shares must specify the price or prices (not
greater than $19.50 nor less than $17.75 per Share) at which
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<PAGE>
such stockholder is willing to have the Company purchase his Shares. All Shares
purchased pursuant to the Offer will be purchased at the Purchase Price. All
Shares not purchased pursuant to the Offer, including Shares tendered at prices
greater than the Purchase Price and Shares not purchased because of proration,
will be returned to the tendering stockholders at the Company's expense as
promptly as practicable following the Expiration Date.
Upon the terms and subject to the conditions of the Offer, if the number of
Shares validly tendered prior to the Expiration Date is less than or equal to
3,000,000 Shares (or such greater number of Shares as the Company may elect to
purchase pursuant to the Offer), the Company will purchase at the Purchase Price
all Shares so tendered.
Upon the terms and subject to the conditions of the Offer, in the event that
prior to the Expiration Date more than 3,000,000 Shares (or such greater number
of Shares as the Company elects to purchase) are validly tendered at or below
the Purchase Price, the Company will accept Shares for purchase in the following
order of priority:
(a) first, all Shares validly tendered at or below the Purchase Price
prior to the Expiration Date and not withdrawn by any Odd Lot Owner (as
defined in Section 2) who:
(1) tenders all Shares beneficially owned by such Odd Lot Owner at or
below the Purchase Price (partial tenders will not qualify for this
preference); and
(2) completes the section captioned "Odd Lots" on the Letter of
Transmittal and, if applicable, on the Notice of Guaranteed Delivery; and
(b) then, after purchase of all of the foregoing Shares, all other
Shares validly tendered at or below the Purchase Price before the Expiration
Date on a pro rata basis, if necessary (with adjustments to avoid purchases
of fractional shares).
In the event that proration of tendered Shares is required, the Company will
determine the final proration factor as promptly as practicable after the
Expiration Date. Proration for each stockholder tendering Shares other than Odd
Lot Owners shall be based on the ratio of the number of Shares tendered by such
stockholder at or below the Purchase Price to the total number of Shares
tendered by all stockholders at or below the Purchase Price other than Odd Lot
Owners. Although the Company does not expect to be able to announce the final
results of such proration until approximately seven NYSE trading days after the
Expiration Date, it will announce preliminary results of proration by press
release as promptly as practicable after the Expiration Date. Stockholders may
obtain such preliminary information from the Information Agent and may be able
to obtain such information from their brokers or financial advisors.
As described in Section 14, the number of Shares that the Company will
purchase from a stockholder may affect the federal income tax consequences to
the stockholder of such purchase and therefore may be relevant to a
stockholder's decision whether to tender Shares. The Letter of Transmittal
affords each tendering stockholder the opportunity to designate the order of
priority in which Shares tendered are to be purchased in the event of proration.
2. TENDERS BY HOLDERS OF FEWER THAN 100 SHARES.
The Company, upon the terms and subject to the conditions of the Offer, will
accept for purchase, without proration, all Shares validly tendered on or prior
to the Expiration Date at or below the Purchase Price by or on behalf of
stockholders who beneficially held, as of the close of business on May 11, 1998,
and continue to own beneficially as of the Expiration Date, an aggregate of
fewer than 100 Shares ("Odd Lot Owners"). To avoid proration, however, an Odd
Lot Owner must validly tender at or below the Purchase Price all Shares that
such Odd Lot Owner beneficially owns; partial tenders will not qualify for this
preference. This preference is not available to holders of 100 or more Shares,
even if such holders have
3
<PAGE>
separate stock certificates for fewer than 100 Shares. Any Odd Lot Owner wishing
to tender all Shares beneficially owned by him free of proration pursuant to
this Offer must complete the section captioned "Odd Lots" in the Letter of
Transmittal and, if applicable, on the Notice of Guaranteed Delivery. BY
ACCEPTING THE OFFER, A STOCKHOLDER OWNING FEWER THAN 100 SHARES WOULD NOT ONLY
AVOID THE PAYMENT OF BROKERAGE COMMISSIONS BUT WOULD ALSO AVOID ANY APPLICABLE
ODD LOT DISCOUNTS PAYABLE IN A SALE OF HIS SHARES ON A STOCK EXCHANGE, INCLUDING
THE NYSE.
3. PROCEDURE FOR TENDERING SHARES.
PROPER TENDER OF SHARES. For Shares to be validly tendered pursuant to the
Offer:
(a) the certificates for such Shares (or confirmation of receipt of such
Shares pursuant to the procedures for book-entry transfer set forth below),
together with a properly completed and duly executed Letter of Transmittal
(or facsimile thereof) with any required signature guarantees, and any other
documents required by the Letter of Transmittal, must be received on or
before the Expiration Date by the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase; or
(b) the tendering stockholder must comply with the guaranteed delivery
procedure set forth below.
AS SPECIFIED IN INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL, EACH STOCKHOLDER
DESIRING TO TENDER SHARES PURSUANT TO THE OFFER MUST PROPERLY INDICATE IN THE
SECTION CAPTIONED "PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING
TENDERED" ON THE LETTER OF TRANSMITTAL THE PRICE (IN MULTIPLES OF $.125) AT
WHICH HIS SHARES ARE BEING TENDERED; PROVIDED, HOWEVER, THAT AN ODD LOT OWNER
MAY CHECK THE BOX IN THE SECTION ENTITLED "ODD LOTS" INDICATING THAT HE IS
TENDERING ALL OF HIS SHARES AT THE PURCHASE PRICE. STOCKHOLDERS DESIRING TO
TENDER SHARES AT MORE THAN ONE PRICE MUST COMPLETE SEPARATE LETTERS OF
TRANSMITTAL FOR EACH PRICE AT WHICH SHARES ARE BEING TENDERED, EXCEPT THAT THE
SAME SHARES CANNOT BE TENDERED (UNLESS PROPERLY WITHDRAWN PREVIOUSLY IN
ACCORDANCE WITH THE TERMS OF THE OFFER) AT MORE THAN ONE PRICE. IN ORDER TO
VALIDLY TENDER SHARES, ONE AND ONLY ONE PRICE BOX MUST BE CHECKED IN THE
APPROPRIATE SECTION ON EACH LETTER OF TRANSMITTAL.
In addition, Odd Lot Owners who tender all of their Shares must complete the
section entitled "Odd Lots" in the Letter of Transmittal and, if applicable, on
the Notice of Guaranteed Delivery in order to qualify for the preferential
treatment available to Odd Lot Owners as set forth in Section 1.
SIGNATURE GUARANTEES AND METHOD OF DELIVERY. No signature guarantee is
required on the Letter of Transmittal (i) if the Letter of Transmittal is signed
by the registered holder of the Shares exactly as the name of the registered
holder (which term, for purposes of this Section 3, includes any participant in
The Depository Trust Company (the "Book-Entry Transfer Facility") whose name
appears on a security position listing as the holder of the Shares) appears on
the certificate tendered therewith, and payment and delivery are to be made
directly to such registered holder, or (ii) if Shares are tendered for the
account of a member firm of a registered national securities exchange or the
National Association of Securities Dealers, Inc. or by a commercial bank or
trust company having an office, branch or agency in the United States which is a
member of one of the Stock Transfer Association's approved medallion programs
(such as Securities Transfer Agents Medallion Program, the New York Stock
Exchange Medallion Signature Program or the Stock Exchange Medallion Program)
(each such entity, an "Eligible Institution"). In all other cases, all
signatures on the Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instruction 1 of the Letter of Transmittal. If a certificate
representing Shares is registered in the name of a person other than the signer
of a Letter of Transmittal, or if payment is to be made, or Shares not purchased
or tendered are to be issued, to a person other than the registered holder, the
certificate must be endorsed or accompanied by an appropriate stock power, in
either case signed exactly as the name of
4
<PAGE>
the registered holder appears on the certificate, with the signature on the
certificate or stock power guaranteed by an Eligible Institution. In all cases,
payment for Shares tendered and accepted for payment pursuant to the Offer will
be made only after timely receipt by the Depositary of certificates for such
Shares (or a timely confirmation of a book-entry transfer of such Shares into
the Depositary's account at the Book-Entry Transfer Facility), a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) with
any required signature guarantees and any other documents required by the Letter
of Transmittal.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING STOCK CERTIFICATES, THE
LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS, IS AT THE ELECTION 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 TIMELY DELIVERY.
FEDERAL INCOME TAX BACKUP WITHHOLDING. To prevent federal income tax backup
withholding equal to 31% of the gross payments made pursuant to the Offer, each
stockholder who does not otherwise establish an exemption from such withholding
must notify the Depositary of such stockholder's correct taxpayer identification
number (or certify that such taxpayer is awaiting a taxpayer identification
number) and provide certain other information by completing a Substitute Form
W-9 (included in the Letter of Transmittal). Foreign stockholders may be
required to submit Form W-8, certifying non-United States status, in order to
avoid backup withholding. See Instructions 12 and 13 of the Letter of
Transmittal.
EACH STOCKHOLDER SHOULD CONSULT HIS OWN TAX ADVISOR AS TO WHETHER SUCH
STOCKHOLDER IS SUBJECT TO OR EXEMPT FROM FEDERAL INCOME TAX WITHHOLDING.
For a discussion of certain other federal income tax consequences to
tendering stockholders, see Section 14.
BOOK-ENTRY DELIVERY. The Depositary will establish an account with respect
to the Shares at the Book-Entry Transfer Facility for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any financial
institution that is a participant in the Book-Entry Transfer Facility's system
may make book-entry delivery of the Shares by causing such facility to transfer
such Shares into the Depositary's account in accordance with such facility's
procedure for such transfer. Even though delivery of Shares may be effected
through book-entry transfer into the Depositary's account at the Book-Entry
Transfer Facility, a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), with any required signature guarantees and other
required documents must, in any case, be transmitted to and received by the
Depositary at its addresses set forth on the back cover of this Offer to
Purchase prior to the Expiration Date, or the guaranteed delivery procedure set
forth below must be followed. DELIVERY OF THE LETTER OF TRANSMITTAL AND ANY
OTHER REQUIRED DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
GUARANTEED DELIVERY. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates are not immediately available (or
the procedures for book-entry transfer cannot be completed on a timely basis) or
time will not permit all required documents to reach the Depositary by the
Expiration Date, such Shares may nevertheless be tendered provided that all of
the following conditions are satisfied:
(a) such tender is made by or through an Eligible Institution;
(b) the Depositary receives (by hand, mail or telegram), on or prior to
the Expiration Date, a properly completed and duly executed Notice of
Guaranteed Delivery substantially in the form the Company has provided with
this Offer to Purchase (indicating the price at which the Shares are being
tendered) which includes a guarantee by an Eligible Institution in the form
set forth in such Notice; and
5
<PAGE>
(c) the certificates for all tendered Shares in proper form for transfer
(or confirmation of book-entry transfer of such Shares into the Depositary's
account at the Book-Entry Transfer Facility), together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) and
any other documents required by the Letter of Transmittal, are received by
the Depositary within three NYSE trading days after the date the Depositary
receives such Notice of Guaranteed Delivery.
DETERMINATION OF VALIDITY; REJECTION OF SHARES; WAIVER OF DEFECTS; NO
OBLIGATION TO GIVE NOTICE OF DEFECTS. All questions as to the number of Shares
to be accepted, the price to be paid therefor, the form of documents and the
validity, form, eligibility (including the time of receipt) and acceptance for
payment of any tender of Shares will be determined by the Company, in its sole
discretion, which determination shall be final and binding on all parties. The
Company reserves the absolute right to reject any or all tenders it determines
not to be in proper form or the acceptance of or payment for which may in the
opinion of the Company's counsel be unlawful. The Company also reserves the
absolute right to waive any of the conditions of the Offer or any defect or
irregularity in the tender of any particular Shares. No tender of Shares will be
deemed to be validly made until all defects and irregularities have been cured
or waived. None of the Company, 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 such notice.
TENDER CONSTITUTES AN AGREEMENT. The Company's acceptance for payment of
Shares tendered pursuant to the Offer will constitute a binding agreement
between the tendering stockholder and the Company upon the terms and subject to
the conditions of the Offer.
It is a violation of Rule 14e-4 promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), for a person (directly or
indirectly) to tender Shares for his own account unless, at the time of tender
and at the end of the proration period (including any extension thereof), the
person so tendering (i) has a net long position equal to or greater than the
amount of (x) Shares tendered or (y) other securities immediately convertible
into, exercisable for, or exchangeable for the amount of Shares tendered and
will acquire such Shares for tender by conversion, exercise or exchange of such
other securities and (ii) will cause such Shares to be delivered in accordance
with the terms of the Offer. Rule 14e-4 provides a similar restriction
applicable to the tender or guarantee of a tender on behalf of another person.
The tender of Shares pursuant to any one of the procedures described above will
constitute the tendering stockholder's acceptance of the terms and conditions of
the Offer as well as the tendering stockholder's representation and warranty
that (i) such stockholder has a net long position in the Shares being tendered
within the meaning of Rule 14e-4 and (ii) the tender of such Shares complies
with Rule 14e-4.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4, the tender of Shares
pursuant to the Offer is irrevocable. Shares tendered pursuant to the Offer may
be withdrawn at any time prior to the Expiration Date and, unless theretofore
accepted for payment by the Company, may also be withdrawn after 12:00 midnight,
New York City time, on July 13, 1998.
For a withdrawal to be effective, the Depositary must timely receive (at one
of its addresses set forth on the back cover of this Offer to Purchase) a
written notice of withdrawal. Such notice of withdrawal must specify the name of
the person who tendered the Shares to be withdrawn, the number of Shares to be
withdrawn and the name of the registered holder, if different from that of the
person who tendered such Shares. If the certificates have been delivered or
otherwise identified to the Depositary, then, prior to the release of such
certificates, the tendering stockholder must also submit the serial numbers
shown on the particular certificates evidencing the Shares to be withdrawn and
the signature on the notice of withdrawal must be guaranteed by an Eligible
Institution (except in the case of Shares tendered by an Eligible Institution).
All questions as to the form and validity (including time of receipt) of notices
of withdrawal
6
<PAGE>
will be determined by the Company, in its sole discretion, which determination
shall be final and binding on all parties. None of the Company, the Depositary,
the Information Agent or any other person is or will be obligated to give any
notice of any defects or irregularities in any notice of withdrawal, and none of
them will incur any liability for failure to give such notice. Any Shares
properly withdrawn will thereafter be deemed not validly tendered for purposes
of the Offer. Withdrawn Shares may, however, be retendered by the Expiration
Date by again following any of the procedures described in Section 3.
If the Company extends the Offer, is delayed in its purchase of Shares or is
unable to purchase Shares pursuant to the Offer for any reason, then, without
prejudice to the Company's rights under the Offer, the Depositary may, subject
to applicable law, retain on behalf of the Company all tendered Shares, and the
Shares may not be withdrawn except to the extent tendering stockholders are
entitled to withdrawal rights as described in this Section 4.
5. PURCHASE OF SHARES AND PAYMENT OF PURCHASE PRICE.
Upon the terms and subject to the conditions of the Offer, the Company will
determine the Purchase Price it will pay for validly tendered Shares taking into
account the number of Shares tendered and the prices specified by tendering
stockholders and will accept for payment (and thereby purchase) Shares validly
tendered at or below the Purchase Price as soon as practicable after the
Expiration Date. For purposes of the Offer, the Company will be deemed to have
accepted for payment (and therefore purchased), subject to proration, Shares
which are tendered at or below the Purchase Price and not withdrawn when, as and
if it gives oral or written notice to the Depositary of its acceptance of such
Shares for payment pursuant to the Offer.
Upon the terms and subject to the conditions of the Offer (including
proration), the Company will purchase and pay a single per Share Purchase Price
for 3,000,000 Shares (subject to increase or decrease as provided in Section 1
and Section 15) or such lesser number of Shares as are validly tendered at
prices not greater than $19.50 nor less than $17.75 per Share, as promptly as
practicable after the Expiration Date.
Payment for Shares purchased pursuant to the Offer will be made by
depositing the aggregate Purchase Price therefor with the Depositary, which will
act as agent for tendering stockholders solely for the purpose of receiving
payment from the Company and transmitting payment to the tendering stockholders.
In the event of proration, the Company will determine the proration factor
and pay for those tendered Shares accepted for payment as soon as practicable
after the Expiration Date; however, the Company does not expect to be able to
announce the final results of any such proration until approximately seven NYSE
trading days after the Expiration Date. Certificates for all Shares not
purchased, including all Shares tendered at prices greater than the Purchase
Price and Shares not purchased due to proration, will be returned (or, in the
case of Shares tendered by book-entry transfer, such Shares will be credited to
the account maintained with the Book-Entry Transfer Facility by the participant
therein who so delivered such Shares) as soon as practicable after the
Expiration Date or termination of the Offer without expense to the tendering
stockholder. Under no circumstances will the Company pay interest on the
Purchase Price. In addition, if certain events occur, the Company may not be
obligated to purchase Shares pursuant to the Offer. See Section 6.
The Company will pay all stock transfer taxes, if any, payable on the
transfer to it of Shares purchased pursuant to the Offer; provided, however,
that (i) if payment of the Purchase Price is to be made to, or (ii) (in the
circumstances permitted by the Offer) if unpurchased Shares are to be registered
in the name of, any person other than the registered owner, or if tendered
certificates are registered in the name of any person other than the person
signing the Letter of Transmittal, the amount of all stock transfer taxes, if
any (whether imposed on the registered owner or such other person), payable on
account of the transfer to such person will be deducted from the Purchase Price
unless evidence satisfactory to the Company of the payment of such taxes or
exemption therefrom is submitted. See Instruction 7 of the Letter of
Transmittal.
7
<PAGE>
THE COMPANY MAY BE REQUIRED TO WITHHOLD AND REMIT TO THE INTERNAL REVENUE
SERVICE (THE "IRS"), 31% OF THE GROSS PROCEEDS PAID TO ANY TENDERING STOCKHOLDER
OR OTHER PAYEE WHO FAILS TO COMPLETE FULLY AND SIGN THE SUBSTITUTE FORM W-9
INCLUDED IN THE LETTER OF TRANSMITTAL. SEE SECTION 3.
6. CERTAIN CONDITIONS OF THE OFFER.
Notwithstanding any other provision of the Offer, the Company shall not be
required to accept for payment, purchase or pay for any Shares tendered, and may
terminate or amend the Offer or may postpone the acceptance for payment of, the
purchase of and the payment for, Shares tendered if at any time on or after May
11, 1998, and at or before the time of purchase of any such Shares, any of the
following events shall have occurred (or shall have been determined by the
Company to have occurred) which, in the Company's sole judgment in any such case
and regardless of the circumstances (including any action or omission to act by
the Company), makes it inadvisable to proceed with the Offer or with such
purchase or payment:
(a) there shall have been threatened, instituted or pending any action
or proceeding by any government or governmental, regulatory or
administrative agency or authority or tribunal or any other person, domestic
or foreign, or before any court or governmental, regulatory or
administrative authority or agency or tribunal, domestic or foreign, which:
(1) challenges, seeks to make illegal, delays or otherwise, directly or
indirectly, restrains or prohibits the making of the Offer, the acquisition
of Shares pursuant to the Offer or otherwise relates in any manner to or
affects the Offer or (2) in the Company's sole judgment, could materially
affect the business, condition (financial or other), income, operations or
prospects of the Company and its subsidiaries, taken as a whole, or
otherwise materially impair in any way the contemplated future conduct of
the business of the Company or any of its subsidiaries or materially impair
the Offer's contemplated benefits to the Company; or
(b) there shall have been any action threatened, instituted, pending or
taken, or approval withheld, or any statute, rule, regulation, judgment,
order or injunction threatened, proposed, sought, promulgated, enacted,
entered, amended, enforced or deemed to be applicable to the Offer or the
Company or any of its subsidiaries, by any court or any government or
governmental, regulatory or administrative authority or agency or tribunal,
domestic or foreign, which, in the Company's sole judgment, would or might
directly or indirectly: (1) challenge, seek to make illegal, delay or
otherwise, directly or indirectly, restrain or prohibit the making of the
Offer, the acquisition of Shares pursuant to the Offer or otherwise relate
in any manner to or affect the Offer or (2) materially affect the business,
condition (financial or other), income, operations or prospects of the
Company and its subsidiaries, taken as a whole, or otherwise materially
impair in any way the contemplated future conduct of the business of the
Company or any of its subsidiaries or materially impair the Offer's
contemplated benefits to the Company; or
(c) the lenders under the Company's Credit Agreement shall have failed
or declined to provide the consents under the Credit Agreement described
under Section 11; or
(d) there shall have occurred: (1) the declaration of any banking
moratorium or suspension of payments in respect of banks in the United
States, (2) any general suspension of trading in, or limitation on prices
for, securities on any United States national securities exchange or in the
over-the-counter market, (3) the commencement of a war, armed hostilities or
any other national or international crisis directly or indirectly involving
the United States, (4) any limitation (whether or not mandatory) by any
governmental, regulatory or administrative agency or authority on, or any
event which, in the Company's sole judgment, might affect, the extension of
credit by banks or other lending institutions in the United States, (5) any
significant decrease in the market price of the Shares or in the general
level of market prices of equity securities in the United States or abroad,
(6) any change in
8
<PAGE>
the general political, market, economic or financial conditions in the
United States or abroad that could have a material adverse effect on the
Company's business, operations or prospects or the trading in the Shares or
that, in the sole judgment of the Company, makes it inadvisable to proceed
with the Offer or (7) in the case of any of the foregoing existing at the
time of the commencement of the Offer, in the Company's sole judgment, a
material acceleration or worsening thereof; or
(e) any change shall have occurred or be threatened in the business,
condition (financial or other), income, operations, Share ownership or
prospects of the Company and its subsidiaries, taken as a whole, which, in
the Company's sole judgment, is or may be material to the Company or any
other event shall have occurred which, in the Company's sole judgment,
materially impairs the Offer's contemplated benefits to the Company; or
(f) a tender or exchange offer for any or all of the Shares (other than
the Offer), or any merger, business combination or other similar transaction
with or involving the Company or any subsidiary, shall have been proposed,
announced or made by any person; or
(g) (1) any entity, "group" (as that term is used in Section 13(d)(3) of
the Exchange Act) or person shall have acquired or proposed to acquire
beneficial ownership of more than 5% of the outstanding Shares (other than
any such person, entity or group who has filed a Schedule 13D or Schedule
13G with the Securities and Exchange Commission (the "Commission") before
May 11, 1998), (2) any such entity, group or person who has filed a Schedule
13D or Schedule 13G with the Commission before May 11, 1998 shall have
acquired or proposed to acquire beneficial ownership of an additional 2% or
more of the outstanding Shares or (3) any person, entity or group shall have
filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 or made a public announcement reflecting an intent
to acquire the Company or any of its subsidiaries or any of their respective
assets or securities.
The foregoing conditions are for the Company's sole benefit and may be
asserted by the Company regardless of the circumstances giving rise to any such
condition (including any action or inaction by the Company) or may be waived by
the Company in whole or in part. The Company's failure at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right and
each such right shall be deemed an ongoing right which may be asserted at any
time and from time to time. Any determination by the Company concerning the
events described in this Section 6 shall be final and shall be binding on all
parties.
9
<PAGE>
7. PRICE RANGE OF SHARES; DIVIDENDS.
The Shares are traded on the NYSE under the symbol "CCS." The following
table sets forth for the calendar periods indicated the high and low per Share
sales prices on the NYSE Composite Tape as reported in published financial
sources.
<TABLE>
<CAPTION>
HIGH LOW
--------- ---------
<S> <C> <C>
1996
1st Quarter.............................................................. $ 16.75 $ 11.88
2nd Quarter.............................................................. 17.75 16.13
3rd Quarter.............................................................. 17.13 14.50
4th Quarter.............................................................. 17.13 14.88
1997
1st Quarter.............................................................. $ 16.50 $ 14.88
2nd Quarter.............................................................. 16.56 13.13
3rd Quarter.............................................................. 20.50 15.88
4th Quarter.............................................................. 20.38 15.88
1998
1st Quarter.............................................................. $ 17.31 $ 14.13
2nd Quarter (through May 14)............................................. $ 19.13 16.34
</TABLE>
On May 8, 1998, the last trading day prior to the announcement of the Offer,
the closing per Share sales price as reported on the NYSE Composite Tape was
$17.00. On May 14, 1998, the last full trading day prior to the commencement of
the Offer, the closing per Share sales price as reported on the NYSE Composite
Tape was $19. THE COMPANY URGES STOCKHOLDERS TO OBTAIN CURRENT QUOTATIONS OF THE
MARKET PRICE OF THE SHARES.
The Company has not paid any dividends on the Shares. The payment and amount
of cash dividends on the Shares will be subject to the discretion of the
Company's Board of Directors. The Company anticipates that it will retain all
earnings for use in its business and will not pay cash dividends on the Shares
in the foreseeable future.
8. INTEREST OF DIRECTORS AND EXECUTIVE OFFICERS; TRANSACTIONS AND ARRANGEMENTS
CONCERNING THE SHARES.
As of May 11, 1998, David H. Murdock, Chairman of the Board and Chief
Executive Officer of the Company, beneficially owned (including 39,001 Shares
issuable upon exercise of options exercisable within 60 days) an aggregate of
4,567,267 Shares (approximately 22.7% of the outstanding Shares including Shares
issuable upon the exercise of options exercisable within 60 days). As of that
same date, the Company's other directors and executive officers as a group
beneficially owned (including Shares issuable upon the exercise of options
exercisable within 60 days) an aggregate of 150,063 Shares (approximately .8% of
the outstanding Shares including 96,250 Shares issuable upon the exercise of
options exercisable within 60 days). If the Company purchases 3,000,000 Shares
(or approximately 15% of the Shares outstanding at May 11, 1995) pursuant to the
Offer and no executive officer or director tenders Shares pursuant to the Offer,
then after the purchase of Shares pursuant to the Offer, Mr. Murdock would
beneficially own approximately 26.6% of the outstanding Shares, and the
Company's other executive officers and directors as a group would beneficially
own approximately .9% of the outstanding Shares, including Shares issuable upon
the exercise of options exercisable within 60 days. The Company has been advised
that no director or executive officer of the Company intends to tender any
Shares pursuant to the Offer.
Based upon the Company's records and upon information provided to the
Company by its directors, executive officers and affiliates, neither the Company
nor any of its subsidiaries nor, to the best of the
10
<PAGE>
Company's knowledge, any of the directors or executive officers of the Company,
nor any associates of any of the foregoing, has effected any transactions in the
Shares during the 40 business day period prior to the date hereof.
Neither the Company nor, to the best of the Company's knowledge, any of its
affiliates, directors or executive officers, or any of the executive officers or
directors of its subsidiaries, is a party to any contract, arrangement,
understanding or relationship with any other person relating, directly or
indirectly, to the Offer with respect to any securities of the Company
(including, but not limited to, any contract, arrangement, understanding or
relationship concerning the transfer or the voting of any such securities, joint
ventures, loan or option arrangements, puts or calls, guaranties of loans,
guaranties against loss or the giving or withholding of proxies, consents or
authorizations).
9. BACKGROUND AND PURPOSE OF THE OFFER.
Shares of the Company have consistently traded at prices significantly below
their book value, and the Board of Directors believes that the Shares are
undervalued. The Board of Directors also believes the Company's financial
condition will allow it to meet the Company's first priority, which is to
operate its existing business, including through acquisitions, and to use its
debt capacity to fund the Offer. The Board of Directors believes that the
purchase of Shares is an attractive use of the Company's financial resources.
Accordingly, the Offer is consistent with the Company's long-term corporate goal
of increasing stockholder value.
Even after this share repurchase is completed, the Company will have ready
access to sources of capital sufficient to fund investments in the business, and
to operate its existing business.
The Offer provides stockholders who are considering a sale of all or a
portion of their Shares the opportunity to determine the price or prices (not
greater than $19.50 nor less than $17.75 per Share) at which they are willing to
sell their Shares and, if any such Shares are purchased pursuant to the Offer,
to sell those Shares for cash without the usual transaction costs associated
with open-market sales. The Offer also allows stockholders to sell a portion of
their Shares while retaining a continuing equity interest in the Company if they
so desire. ANY STOCKHOLDERS OWNING AN AGGREGATE OF LESS THAN 100 SHARES WHOSE
SHARES ARE PURCHASED PURSUANT TO THE OFFER NOT ONLY WILL AVOID ANY PAYMENT OF
BROKERAGE COMMISSIONS, BUT ALSO WILL AVOID ANY APPLICABLE ODD LOT DISCOUNTS
PAYABLE ON SALES OF ODD LOTS ON A STOCK EXCHANGE, INCLUDING THE NYSE. In
addition, the Offer may give stockholders the opportunity to sell Shares at
prices greater than market prices prevailing prior to announcement of the Offer.
To the extent the purchase of Shares in the Offer results in a reduction in the
number of stockholders of record, the costs of the Company for services to
stockholders may be reduced.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
ANY STOCKHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ANY OR ALL OF
SUCH STOCKHOLDER'S SHARES AND HAS NOT AUTHORIZED ANY PERSON TO MAKE ANY SUCH
RECOMMENDATION. STOCKHOLDERS ARE URGED TO EVALUATE CAREFULLY ALL INFORMATION IN
THE OFFER, CONSULT THEIR OWN INVESTMENT AND TAX ADVISORS AND MAKE THEIR OWN
DECISIONS WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND THE
PRICE OR PRICES AT WHICH SHARES SHOULD BE TENDERED.
Shares the Company acquires pursuant to the Offer become authorized but
unissued shares and will be held in the Company's treasury and will be available
for the Company to issue without further stockholder action (except as required
by applicable law or the rules of any securities exchange, including the NYSE,
on which the Shares are listed). Such Shares could be issued without stockholder
approval for such purposes as, among others, the acquisition of other
businesses, the raising of additional capital for use
11
<PAGE>
in the Company's business, the distribution of stock dividends and the
implementation of employee benefit plans.
10. CERTAIN INFORMATION ABOUT THE COMPANY.
GENERAL.
The Company is engaged in three principal businesses: residential real
estate, resorts and commercial real estate. The Company conducts residential
real estate development operations on the island of Oahu in the State of Hawaii,
and in Bakersfield, California; Sierra Vista, Arizona and Orlando, Florida. The
Company's resort operations are located in Hawaii on the island of Lana'i and
include two luxury resort hotels, The Lodge at Koele and The Manele Bay Hotel,
two golf courses, and luxury vacation home developments associated with the
resort hotels. The Company is developing commercial properties in Bakersfield
and San Jose, California; Raleigh, North Carolina; Atlanta, Georgia; Phoenix and
Sierra Vista, Arizona; Orlando, Florida and on Oahu. The Company also owns and
manages other buildings, shopping centers and other commercial properties in
California, Hawaii, Arizona, North Carolina and Georgia.
The Company's principal executive offices are located at 10900 Wilshire
Boulevard, Los Angeles, California 90024, and the Company's telephone number is
(310) 208-3636.
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SUMMARY HISTORICAL FINANCIAL INFORMATION
The table below includes summary historical financial information of the
Company. The summary financial information has been derived from the audited
consolidated financial statements as reported in the Company's Annual Report on
Form 10-K for the year ended December 31, 1997 and the unaudited consolidated
financial statements of the Company as reported in the Company's quarterly
report on Form 10-Q for the first quarter ended March 31, 1998. In the opinion
of management, the unaudited financial statements for the quarters ended March
31, 1998 and 1997 reflect all adjustments necessary for a fair statement of the
results of operations for the interim periods. However, the results of
operations for any interim period are not necessarily indicative of results for
the full year. The summary historical financial information should be read in
conjunction with, and is qualified in its entirety by reference to, the
consolidated financial statements and related notes included in the reports
referred to above. Copies of these reports may be obtained from the Commission
and the NYSE in the manner specified in "Additional Information" below.
CASTLE & COOKE, INC.
SUMMARY HISTORICAL FINANCIAL INFORMATION
(thousands, except per share and ratio amounts)
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED
MARCH 31, DECEMBER 31,
-------------------------- --------------------------
1998 1997 1997 1996
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA
- ---------------------------------------------------------
Total Revenues........................................... $ 57,250 $ 54,178 $ 241,163 $ 308,324
Income Before Income Taxes............................... 2,083 856 6,080 15,229
Net Income............................................... 1,396 518 3,873 9,213
Net Income Available To Common Stockholders.............. 1,396 (532) (104) 5,013
Basic Earnings (Loss) Per Common Share................... $ .07 $ (.03) $ (.01) $ .25
Diluted Earnings (Loss) Per Common Share................. $ .07 $ (.03) $ (.01) $ .25
Average Number of Common Shares Outstanding.............. 20,003 19,956 19,975 19,955
Ratio of Earnings To Fixed Charges (1)................... 1.17 .41 .63 1.02
BALANCE SHEET DATA
(AT END OF PERIOD)
- ---------------------------------------------------------
Total Assets............................................. $ 1,035,929 $ 1,025,356 $ 1,019,260 $ 1,019,822
Total Debt............................................... 197,969 161,120 186,101 152,130
Redeemable Preferred Stock............................... -- 35,875 -- 35,700
Total Common Stockholders' Equity........................ 585,209 582,808 583,744 583,307
Common Stockholders' Equity Per Share.................... $ 29.25 $ 29.20 $ 29.19 $ 29.23
</TABLE>
NOTE TO SUMMARY CONSOLIDATED, HISTORICAL FINANCIAL INFORMATION
(1) The ratio of earnings to fixed charges was computed by dividing earnings
before income taxes, interest expense and previously capitalized interest
amortized in cost of sales during the period by the sum of: (1) interest
cost incurred, and (2) the amount of pre-tax earnings required to cover the
preferred stock dividend and accretion.
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<PAGE>
PRO FORMA FINANCIAL INFORMATION
The following unaudited pro forma financial information sets forth the
historical financial information as adjusted to give effect for the purchase of
3,000,000 Shares at a Purchase Price of $17.75 per Share and at a Purchase Price
of $19.50 per Share, the minimum and maximum possible Purchase Price per Share
in the Offer. Expenses related to the Offer are estimated to be $350,000. The
pro forma adjustments assume the transaction occurred, for purposes of the
summary consolidated income statement, as of the first day of the period
presented, and, for purposes of the consolidated balance sheet, as of the
balance sheet date. The pro forma financial information does not purport to be
indicative of the results that may be obtained in the future or that would have
actually been obtained had the Offer occurred as of the dates indicated. The pro
forma information should be read in conjunction with the Summary Historical
Financial Information and accompanying notes.
14
<PAGE>
CASTLE & COOKE, INC.
SUMMARY UNAUDITED PRO FORMA FINANCIAL INFORMATION
(thousands, except per share and ratio amounts)
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED
MARCH 31, 1998 DECEMBER 31, 1997
---------------------------------- ----------------------------------
PRO FORMA(1) PRO FORMA(1)(2)
---------------------- ----------------------
ASSUMED ASSUMED ASSUMED ASSUMED
$17.75 PER $19.50 PER $17.75 PER $19.50 PER
SHARE SHARE SHARE SHARE
UNAUDITED PURCHASE PURCHASE PURCHASE PURCHASE
INCOME STATEMENT DATA HISTORICAL PRICE PRICE HISTORICAL PRICE PRICE
- ------------------------------------------ ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Total Revenues............................ $ 57,250 $ 57,250 $ 57,250 $ 241,163 $ 241,163 $ 241,163
Income Before Income Taxes................ 2,083 1,176 1,081 6,080 (504) (896)
Net Income................................ 1,396 788 725 3,873 (341) (591)
Net Income Available To Common
Stockholders............................ 1,396 788 725 (104) (341) (591)
Basic Earnings (Loss) Per Common Share
(3)..................................... $ .07 $ .05 $ .04 $ (.01) $ (.02) $ (.03)
Diluted Earnings (Loss) Per Common Share
(3)..................................... $ .07 $ .05 $ .04 $ (.01) $ (.02) $ (.03)
Average Number of Common Shares
Outstanding............................. 20,003 17,003 17,003 19,975 16,975 16,975
Ratio of Earnings To Fixed Charges (4).... 1.17 .93 .91 .63 .62 .61
</TABLE>
<TABLE>
<CAPTION>
BALANCE SHEET DATA
(AT PERIOD END)
- ------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Total Assets.............................. $1,035,929 $1,032,361 $1,032,361 $1,019,260 $1,017,648 $1,017,648
Total Debt................................ 197,969 248,908 254,253 186,101 240,697 246,338
Total Common Stockholders' Equity......... 585,209 531,001 525,688 583,744 529,907 524,407
Common Stockholders' Equity Per Share..... $ 29.25 $ 31.22 $ 30.91 $ 29.19 $ 31.17 $ 30.85
</TABLE>
NOTES TO SUMMARY UNAUDITED, CONSOLIDATED PRO FORMA
FINANCIAL INFORMATION
The following assumptions regarding the Offer were made in determining the
summary unaudited, consolidated pro forma financial information:
(1) The information assumes 3,000,000 Shares are purchased at $17.75 per Share
and $19.50 per Share, with the purchase plus estimated expenses of $350,000
being financed by excess cash and borrowings under the Company's existing
revolving credit agreement. The information reflects the increased interest
expense relating to the additional borrowings under the existing revolving
credit agreement and the related impact of these items on the provision for
taxes. There can be no assurance that the Company will purchase 3,000,000
Shares or as to the price at which Shares will be purchased.
(2) The December 31, 1997 pro forma information assumes that the redeemable
preferred stock is redeemed at the beginning of the year through additional
borrowings under the existing credit agreement. Accordingly, the information
reflects the elimination of the preferred stock dividends and accretion,
partially offset by increased interest expense pertaining to these
additional borrowings and the related impact on the provision for taxes.
(3) The basic and primary earnings per share calculation gives effect to the
reduced number of Shares that result from the repurchase of Shares pursuant
to the Offer.
(4) The pro forma ratio of earnings to fixed charges was computed by dividing
earnings before income taxes, interest expense and previously capitalized
interest amortized in cost of sales during the period by interest cost
incurred.
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<PAGE>
ADDITIONAL INFORMATION. The Company is subject to the informational
requirements of the Exchange Act and in accordance therewith files periodic
reports, proxy statements and other information with the Commission relating to
its business, financial condition and other matters. The Company is required to
disclose in such proxy statements and reports certain information, as of
particular dates, concerning the Company's directors and officers, their
remuneration, stock options granted to them, the principal owners of the
Company's securities and any material interest of such persons in transactions
with the Company. The Company has also filed an Issuer Tender Offer Statement on
Schedule 13E-4 (the "Schedule 13E-4") with the Commission, which includes
certain additional information relating to the Offer.
Such material may be inspected at the public reference facilities maintained
by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549,
and also should be available for inspection and copying at the following
regional offices of the Commission: Seven World Trade Center, New York, New York
10048, and Northwestern Atrium Center, 500 West Madison, Suite 1400, Chicago,
Illinois 60661. Reports, proxy materials and other information about the Company
are also available at the offices of the NYSE, 20 Broad Street, New York, New
York 10005. Copies may also be obtained by mail for prescribed rates from the
Commission's Public Reference Room, 450 Fifth Street, N.W., Washington, D.C.
20549. The Schedule 13E-4 will not be available at the Commission's regional
offices.
11. SOURCE AND AMOUNT OF FUNDS.
Assuming that the Company purchases 3,000,000 Shares pursuant to the Offer
at a Purchase Price of $19.50 per Share (the highest price in the range of
possible Purchase Prices), the Company expects the maximum aggregate cost of the
Offer, including all fees and expenses applicable to the Offer, to be
approximately $58,850,000. The Company anticipates that the funds necessary to
purchase Shares pursuant to the Offer and to pay the related fees and expenses
will come from excess cash and from borrowings under the $250 million Amended
and Restated Credit Agreement, expiring May 16, 2000 (the "Credit Agreement"),
between the Company and a syndicate of banks (the "Lenders"), with The Chase
Manhattan Bank ("Chase") as Agent. The Credit Agreement, which has previously
been filed by the Company with the Commission, is Exhibit (b)(l) to the Schedule
13E-4 and is incorporated herein by reference.
The Company may request loans under the Credit Agreement as either alternate
base rate loans ("ABR Loans") or Eurodollar loans ("Eurodollar Loans"). ABR
Loans bear interest at a rate equal to the greater of the Chase prime rate and
.5% in excess of the average of the rates on overnight federal funds
transactions among members of the Federal Reserve System (the "Federal Funds
Effective Rate"). Chase's prime rate is currently 8.5% and the Federal Funds
Effective Rate is currently approximately 5 9/16%. Eurodollar Loans bear
interest at the rate offered to the Agent in the London interbank market for
deposits in amounts approximately equal to and having maturities comparable to
the Agent's portion of the Eurodollar Loan (which rate is adjusted for reserve
requirements applicable to Eurocurrency liabilities), plus a spread of between
1.25% and 1.50%. The spread increases with increases in the ratio of the
Company's total indebtedness to a borrowing base, calculated with reference to
the Company's real property in accordance with the Credit Agreement.
The Credit Agreement contains representations and warranties, financial and
other covenants, events of default and other terms customary to financings of
that type. The Company's indebtedness under the Credit Agreement is secured by
mortgages on the Company's primary income producing commercial properties. The
borrowing base under the Credit Agreement and the commitments of the banks
thereunder are reduced upon certain sales of the mortgaged properties by the
Company. In addition, certain other indebtedness of the Company and its
subsidiaries, while permitted under the Credit Agreement, reduces available
borrowings thereunder.
Consummation of the Offer requires that the Lenders waive the provisions of
the Credit Agreement which, among other things, prohibit the Company from
repurchasing any class of capital stock, including the Shares and reduce
available borrowings. The Company has held discussions with the Agent and other
16
<PAGE>
Lenders under the Credit Agreement, and anticipates that the requisite majority
in interest of the Lenders will provide the requisite consents. If such consents
are not received prior to the Expiration Date of the Offer, the Company may, in
its sole discretion extend the Offer and continue to seek the necessary
approvals from the Lenders, or terminate the Offer.
12. EFFECTS OF THE OFFER ON THE MARKET FOR SHARES; REGISTRATION UNDER THE
EXCHANGE ACT.
The Company's purchase of Shares pursuant to the Offer will reduce the
number of Shares that might otherwise trade publicly and is likely to reduce the
number of stockholders. Nonetheless, the Company anticipates that there will
still be a sufficient number of Shares outstanding and publicly traded following
the Offer to ensure a continued trading market in the Shares.
Based on the published guidelines of the NYSE, the Company believes that its
purchase of Shares pursuant to the Offer will not cause its remaining Shares to
be delisted from the NYSE.
The Shares are currently "margin securities" under the rules of the Federal
Reserve Board. This has the effect, among other things, of allowing brokers to
extend credit on the collateral of the Shares. The Company believes that,
following the purchase of Shares pursuant to the Offer, the Shares will continue
to be "margin securities" for purposes of the Federal Reserve Board's margin
regulations.
The Shares are registered under the Exchange Act which requires, among other
things, that the Company furnish certain information to its stockholders and to
the Commission and comply with the Commission's proxy rules in connection with
meetings of the Company's stockholders. The Company believes that its purchase
of Shares pursuant to the Offer will not result in the Shares becoming eligible
for deregistration under the Exchange Act.
13. CERTAIN LEGAL MATTERS; REGULATORY APPROVALS.
The Company is not aware of any license or regulatory permit that appears to
be material to its business that might be adversely affected by its acquisition
of Shares as contemplated in the Offer or of any approval or other action by any
government or governmental, administrative or regulatory authority or agency,
domestic or foreign, that would be required for the Company's acquisition or
ownership of Shares as contemplated by the Offer. Should any such approval or
other action be required, the Company currently contemplates that it will seek
such approval or other action. The Company cannot predict whether it may
determine that it is required to delay the acceptance for payment of, or payment
for, Shares tendered pursuant to the Offer pending the outcome of any such
matter. There can be no assurance that any such approval or other action, if
needed, would be obtained or would be obtained without substantial conditions or
that the failure to obtain any such approval or other action might not result in
adverse consequences to the Company's business. The Company's obligations under
the Offer to accept for payment and pay for Shares are subject to certain
conditions. See Section 6.
14. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
The following summary is a general discussion of certain of the United
States federal income tax consequences of the Offer. This summary is based upon
laws, regulations, rulings and decisions now in effect, all of which are subject
to change, possibly retroactively. No ruling as to any matter discussed in this
summary has been requested or received from the IRS.
EACH STOCKHOLDER IS URGED TO CONSULT AND RELY ON THE STOCKHOLDER'S OWN TAX
ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES TO THE STOCKHOLDER OF TENDERING
SHARES PURSUANT TO THE OFFER.
IN GENERAL. A stockholder's exchange of Shares for cash pursuant to the
Offer will be a taxable transaction for federal income tax purposes, and may
also be a taxable transaction under applicable state, local, foreign or other
tax laws. This summary does not discuss any aspects of state, local, foreign or
other
17
<PAGE>
tax laws. Certain stockholders (including insurance companies, tax-exempt
organizations, financial institutions and broker dealers) may be subject to
special rules not discussed below. For purposes of this discussion, stockholders
are assumed to hold their Shares as capital assets.
TREATMENT AS A SALE OR EXCHANGE. Under Section 302 of the Internal Revenue
Code of 1986, as amended (the "Code"), a transfer of Shares to the Company
pursuant to the Offer will, as a general rule, be treated as a sale or exchange
of the Shares (rather than as a dividend distribution) if the receipt of cash
upon the sale (a) is "substantially disproportionate" with respect to the
stockholder, (b) results in a "complete termination" of the stockholder's
interest in the Company or (c) is "not essentially equivalent to a dividend"
with respect to the stockholder. These tests (the "Section 302 tests") are
explained more fully below.
If any of the Section 302 tests is satisfied, a tendering stockholder will
recognize capital gain or loss equal to the difference between the amount of
cash received by the stockholder pursuant to the Offer and the stockholder's
basis in the Shares sold pursuant to the Offer. Shares held for (i) 12 months or
less will be taxable at the short-term capital gains rate; (ii) more than 12
months and not more than 18 months will be taxable at the mid-term capital gains
rate; and (iii) more than 18 months will be taxable at the long-term capital
gains rate. For Shares received in the December 28, 1995 distribution to
stockholders by Dole Food Company, Inc. ("Dole"), according to information
provided by Dole following the distribution, the tax basis in such Shares was
the fair market value on the date of the distribution, which Dole reported to be
$15.65 per share.
CONSTRUCTIVE OWNERSHIP OF STOCK. In determining whether any of the Section
302 tests is satisfied, a stockholder must take into account not only Shares
actually owned by the stockholder, but also Shares that are constructively owned
pursuant to Section 318 of the Code. Under Section 318, a stockholder may
constructively own Shares actually owned, and in some cases constructively
owned, by certain related individuals and certain entities in which the
stockholder has an interest, or, in the case of stockholders that are entities,
by certain individuals or entities that have an interest in the stockholder, as
well as any Shares the stockholder has a right to acquire by exercise of an
option or by the conversion or exchange of a security. With respect to option
and convertible security attribution, the IRS takes the position that Shares
constructively owned by a stockholder by reason of a right on the stockholder's
part to acquire the Shares from the Company are not to be considered outstanding
for purposes of applying the Section 302 tests to other stockholders; however,
there are both contrary and supporting judicial decisions with respect to this
issue.
THE SECTION 302 TESTS. One of the following tests must be satisfied in
order for the exchange of shares pursuant to the Offer to be treated as a sale
rather than as a dividend distribution.
(a) SUBSTANTIALLY DISPROPORTIONATE TEST. The receipt of cash by a
stockholder will be substantially disproportionate with respect to the
stockholder if the percentage of the outstanding Shares actually and
constructively owned by the stockholder immediately following the exchange
of Shares pursuant to the Offer (treating Shares exchanged pursuant to the
Offer as not outstanding) is less than 80% of the percentage of the
outstanding Shares actually and constructively owned by the stockholder
immediately before the exchange (treating Shares exchanged pursuant to the
Offer as outstanding).
(b) COMPLETE TERMINATION TEST. The receipt of cash by a stockholder
will be a complete termination of the stockholder's interest if either (i)
all of the Shares actually and constructively owned by the stockholder are
sold pursuant to the Offer or (ii) all of the shares actually owned by the
stockholder are sold pursuant to the Offer and the stockholder is eligible
to waive, and effectively waives, the attribution of Shares constructively
owned by the stockholder in accordance with the procedures described in
Section 302(c) (2) of the Code. Stockholders considering terminating their
interest in accordance with Section 302(c) (2) of the Code should do so in
consultation with their own tax advisors.
18
<PAGE>
(c) NOT ESSENTIALLY EQUIVALENT TO A DIVIDEND TEST. The receipt of cash
by a stockholder will not be essentially equivalent to a dividend if the
stockholder's exchange of Shares pursuant to the Offer results in a
"meaningful reduction" of the stockholder's proportionate interest in the
Company. Whether the receipt of cash by a stockholder will result in a
meaningful reduction of the stockholder's proportionate interest will depend
on the stockholder's particular facts and circumstances. However, in the
case of a small minority stockholder, even a small reduction may satisfy
this test where, as with the Offer, payments are not expected to be pro rata
with respect to all outstanding Shares. The IRS has indicated in a published
ruling that, in the case of a small minority stockholder of a publicly held
corporation who exercises no control over corporate affairs, a reduction in
the stockholder's proportionate interest in the corporation from .00011189
to .000108190 would constitute a meaningful reduction.
Although the issue is not free from doubt, a stockholder may be able to take
into account acquisitions or dispositions of Shares (including market purchases
and sales) substantially contemporaneous with the Offer in determining whether
any of the Section 302 tests is satisfied.
In the event that the Offer is oversubscribed, the Company's purchase of
Shares pursuant to the Offer will be prorated. Thus, in such case even if all
the Shares actually and constructively owned by a stockholder are tendered
pursuant to the Offer, not all of the Shares will be purchased by the Company,
which in turn may affect the stockholder's ability to satisfy the Section 302
tests.
TREATMENT AS A DIVIDEND. If none of the Section 302 tests is satisfied and,
if (although there can be no assurances) the Company has sufficient earnings and
profits, a tendering stockholder will be treated as having received a dividend
includible in gross income in an amount equal to the entire amount of cash
received by the stockholder pursuant to the Offer. This amount will not be
reduced by the stockholder's basis in the Shares exchanged pursuant to the
Offer, and (except as described below for corporate stockholders eligible for
the dividends-received deduction) the stockholder's basis in those Shares will
be added to the stockholder's basis in his remaining Shares. No assurance can be
given that any of the Section 302 tests will be satisfied as to any particular
stockholder, and thus no assurance can be given that any particular stockholder
will not be treated as having received a dividend taxable as ordinary income. If
none of the Section 302 tests is satisfied, any cash received for Shares
pursuant to the Offer in excess of the Company's earnings and profits will be
treated, first, as a non-taxable return of capital to the extent of, and in
reduction of, the stockholder's basis for such stockholder's shares and,
thereafter, as a capital gain to the extent it exceeds such basis.
SPECIAL RULES FOR CORPORATE STOCKHOLDERS. If the exchange of shares by a
corporate stockholder does not satisfy any of the Section 302 tests and,
assuming the Company has sufficient earnings and profits, is therefore treated
as a dividend, the corporate stockholder generally will be entitled to a
dividends-received deduction equal to 70% of the dividend, subject to applicable
limitations, including those relating to "debt-financed portfolio stock" under
Section 246A of the Code and to the holding period and other requirements of
Section 246(c) of the Code. Also, since it is expected that purchases pursuant
to the Offer will not be pro rata as to all stockholders, any amount treated as
a dividend to a corporate stockholder will constitute an "extraordinary
dividend" subject to the provisions of Section 1059 of the Code (except as may
otherwise be provided in regulations yet to be promulgated by the Treasury
Department). Under Section 1059 of the Code, a corporate stockholder must reduce
the tax basis of all such stockholder's stock (but not below zero) by the
portion of any "extraordinary dividend" that is generally equal to the deduction
allowable under the dividends-received deduction rules and, if such portion
exceeds the stockholder's tax basis for the stock, must treat any such excess as
additional gain in the year in which such extraordinary dividend occurs.
EMPLOYEE OPTION PLANS. If an employee exercises a non-qualified stock
option granted under the Company's stock option plan in order to acquire Shares
to tender pursuant to the Offer, the employee will be required to recognize
ordinary income in an amount equal to the excess of the fair market value of the
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<PAGE>
Shares on the date the option is exercised over the exercise price. The
employee's basis in the Shares will equal the fair market value of the Shares on
the date the option is exercised, and the employee's holding period for purposes
of determining eligibility for long-term capital gain will begin after the
option is exercised. The exchange of the Shares pursuant to the Offer will be
taxed in accordance with the rules described in the preceding sections.
FOREIGN STOCKHOLDERS. The Company will assume that the exchange is a
dividend as to foreign stockholders and will therefore withhold federal income
tax at a rate equal to 30% of the gross proceeds paid to a foreign stockholder
or his agent pursuant to the Offer, 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 the gross proceeds are
effectively connected with the conduct of a trade or business by the foreign
stockholder within the United States. For this purpose, a foreign stockholder is
any stockholder that is not (i) a citizen or resident of the United States, (ii)
a corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, (iii) any estate
the income of which is subject to United States federal income taxation
regardless of the source of such income, or (iv) a trust if (x) a court within
the United States is able to exercise primary supervision over the
administration of the trust and (y) one or more United States persons have
authority to control all substantial decisions of the trust.
Generally, the determination of whether a reduced rate of withholding is
applicable is made by reference to a foreign stockholder's address or to a
properly completed Form 1001 furnished by the stockholder, and the determination
of whether an exemption from withholding is available on the grounds that gross
proceeds paid to a foreign stockholder are effectively connected with a United
States trade or business is made on the basis of a properly completed Form 4224
furnished by the stockholder. The Depositary will determine a foreign
stockholder's eligibility for a reduced rate of, or exemption from, withholding
by reference to the stockholder's address and any Forms 1001 or 4224 submitted
to the Depositary by a foreign stockholder unless facts and circumstances
indicate that such reliance is not warranted or unless applicable law requires
some other method for determining whether a reduced rate of withholding is
applicable. These forms can be obtained from the Depositary. See the
instructions to the Letter of Transmittal.
A foreign stockholder with respect to whom tax has been withheld may be
eligible to obtain a refund of all or a portion of the withheld tax if the
stockholder satisfies one of the Section 302 tests for capital gain treatment or
is otherwise able to establish that no tax or a reduced amount of tax was due.
Foreign stockholders are urged to consult their own tax advisors regarding the
application of federal income tax withholding, including eligibility for a
withholding tax reduction or exemption and the refund procedure.
15. EXTENSION OF THE OFFER; TERMINATION; AMENDMENTS.
The Company expressly reserves the right, at any time or from time to time,
in its sole discretion, and regardless of whether any of the conditions
specified in Section 6 shall have occurred, to extend the period of time during
which the Offer is open by giving oral or written notice of such extension to
the Depositary and making a public announcement thereof. The Company also
expressly reserves the right, in its sole discretion, to terminate the Offer and
not accept for payment or pay for any Shares not theretofore accepted for
payment or paid for or, subject to applicable law, to postpone payment for
Shares upon the occurrence of any of the conditions specified in Section 6 by
giving oral or written notice of such termination or postponement to the
Depositary and making a public announcement thereof. The Company's reservation
of the right to delay payment for Shares which it has accepted for payment is
limited by Rules 13e-4(f)(2) and 13e-4(f)(5) promulgated under the Exchange Act.
Rule 13e-4(f)(2) requires that the Company permit Shares tendered pursuant to
the Offer to be withdrawn: (i) at any time during the period the Offer remains
open; and (ii) if not yet accepted for payment, after the expiration of forty
business days from the commencement of the Offer. Rule 13e-4(f)(5) requires that
the Company must either pay the consideration offered or return the Shares
tendered promptly after the termination or withdrawal of the
20
<PAGE>
Offer. Subject to compliance with applicable law, the Company further reserves
the right, in its sole discretion, at any time or from time to time to amend the
Offer in any respect, including increasing or decreasing the number of Shares
the Company may purchase or the range of prices it may pay pursuant to the
Offer. Amendments to the Offer may be made at any time or from time to time
effected by public announcement thereof, such announcement, in the case of an
extension, to be issued no later than 9:00 A.M., New York City time, on the next
business day after the previously scheduled Expiration Date. Any public
announcement made pursuant to the Offer will be disseminated promptly to
stockholders in a manner reasonably designed to inform stockholders of such
change. Without limiting the manner in which the Company may choose to make a
public announcement, except as required by applicable law, the Company shall
have no obligation to publish, advertise or otherwise communicate any such
public announcement other than by making a release to the Dow Jones News
Service.
If the Company materially changes the terms of the Offer or the information
concerning the Offer, or if it waives a material condition of the Offer, the
Company will extend the Offer to the extent required by Rules 13e-4(d)(2) and
13e-4(e)(2) promulgated under the Exchange Act. These rules require that the
minimum period during which an offer must remain open following material changes
in the terms of the offer or information concerning the offer (other than a
change in price or a change in percentage of securities sought) will depend on
the facts and circumstances, including the relative materiality of such terms or
information. If (i) the Company increases or decreases the price to be paid for
Shares, or the Company increases the number of Shares being sought and any such
increase in the number of Shares being sought exceeds 2% of the outstanding
Shares, or the Company decreases the number of Shares being sought and (ii) the
Offer is scheduled to expire at any time earlier than the expiration of a period
ending on the tenth business day from, and including, the date that notice of
such increase or decrease is first published, sent or given, the Offer will be
extended until the expiration of such period of ten business days.
16. FEES AND EXPENSES.
The Company has retained D.F. King & Co., Inc. as Information Agent and
BankBoston, N.A. as Depositary in connection with the Offer. The Information
Agent may contact stockholders by mail, telephone, telex, telegraph and personal
interviews, and may request brokers, dealers and other nominee stockholders to
forward materials relating to the Offer to beneficial owners. The Information
Agent and the Depositary will receive reasonable and customary compensation for
their services. The Company will also reimburse the Information Agent and the
Depositary for out-of-pocket expenses, including reasonable attorneys' fees, and
has agreed to indemnify the Information Agent and the Depositary against certain
liabilities in connection with the Offer, including certain liabilities under
the federal securities laws. Neither the Information Agent nor the Depositary
has been retained to make solicitations or recommendations in connection with
the Offer.
The Company will not pay fees or commissions to any broker, dealer,
commercial bank, trust company or other person for soliciting any Shares
pursuant to the Offer. The Company will, however, on request through the
Information Agent, reimburse such persons for customary handling and mailing
expenses incurred in forwarding materials in respect of the Offer to the
beneficial owners for which they act as nominees. No such broker, dealer,
commercial bank or trust company has been authorized to act as the Company's
agent for purposes of this Offer. The Company will pay (or cause to be paid) any
stock transfer taxes on its purchase of Shares, except as otherwise provided in
Instruction 7 of the Letter of Transmittal.
17. MISCELLANEOUS.
The Offer is not being made to, nor will the Company accept tenders from,
holders of Shares in any jurisdiction in which the Offer or its acceptance would
not comply with the securities or Blue Sky laws of such jurisdiction. The
Company is not aware of any jurisdiction in which the making of the Offer or the
tender of Shares would not be in compliance with the laws of such jurisdiction.
However, the Company reserves the right to exclude holders in any jurisdiction
in which it is asserted that the Offer cannot lawfully
21
<PAGE>
be made. So long as the Company makes a good faith effort to comply with any
state law deemed applicable to the Offer, if it cannot do so, the Company
believes that the exclusion of holders residing in such jurisdiction is
permitted under Rule 13e-4(f)(9) promulgated under the Exchange Act. In any
jurisdiction the securities or Blue Sky laws of which require the Offer to be
made by a licensed broker or dealer, the Offer shall be deemed to be made on the
Company's behalf by one or more registered brokers or dealers licensed under the
laws of such jurisdiction.
CASTLE & COOKE, INC.
May 15, 1998
22
<PAGE>
Facsimile copies of the Letter of Transmittal will be accepted. The Letter
of Transmittal and certificates for the Shares and any other required documents
should be sent or delivered by each stockholder or his broker, dealer,
commercial bank, trust company or other nominee to the Depositary at one of its
address set forth below:
THE DEPOSITARY:
BANKBOSTON, N.A.
<TABLE>
<S> <C> <C>
BY FIRST CLASS OR EXPRESS BY HAND: BY OVERNIGHT:
MAIL: STARS BankBoston, N.A.
BANKBOSTON, N.A. Securities Transfers & Corporate Reorganization
Attention: Corporate Reports Services, Inc. Dept.
Reorganization Dept. Attention: BankBoston, N.A. 150 Royal Street
P. O. Box 8029 One Exchange Place Canton, MA 02021
Boston, MA 02266-8029 55 Broadway, 3rd Floor
New York, NY
</TABLE>
TO CONFIRM RECEIPT OF
NOTICE OF GUARANTEED
DELIVERY:
(800) 733-5001
Any questions or requests for assistance or for additional copies of this
Offer to Purchase, the Letter of Transmittal or the Notice of Guaranteed
Delivery may be directed to the Information Agent at the telephone numbers and
address below. You may also contact your broker, dealer, commercial bank or
trust company for assistance concerning the Offer. To confirm delivery of your
Shares, you are directed to contact the Depositary.
THE INFORMATION AGENT:
D. F. KING & CO., INC.
77 Water Street
New York, New York 10005
(212) 269-5550 (Call Collect)
or
Call Toll Free: (800) 290-6424
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
CASTLE & COOKE, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED MAY 15, 1998
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JUNE 19, 1998, UNLESS THE OFFER IS EXTENDED.
THE DEPOSITARY FOR THE OFFER IS:
BANKBOSTON, N.A.
<TABLE>
<CAPTION>
BY FIRST CLASS OR EXPRESS MAIL: BY HAND: BY OVERNIGHT:
<S> <C> <C>
BANKBOSTON, N.A. STARS BankBoston, N.A.
Attention: Corporate Reorganization Securities Transfers & Reports Services, Corporate Reorganization Dept.
Dept. Inc. 150 Royal Street
P. O. Box 8029 Attention: BankBoston, N.A. Canton, MA 02021
Boston, MA 02266-8029 One Exchange Place
55 Broadway, 3rd Floor
New York, NY
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
<TABLE>
<S> <C> <C> <C>
DESCRIPTION OF SHARES TENDERED
(SEE INSTRUCTIONS 3 AND 4)
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARE CERTIFICATE(S) AND SHARES TENDERED
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) APPEAR(S) ON (ATTACH ADDITIONAL SIGNED LIST, IF
SHARE CERTIFICATE(S)) NECESSARY)
<S> <C> <C> <C>
TOTAL NUMBER
OF SHARES
SHARE EVIDENCED BY NUMBER OF
CERTIFICATE SHARE SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
TOTAL SHARES
Indicate in this box the order (by certificate number) in which Shares are to be purchased in the event
of proration.*** (Attach additional signed list if necessary.)
See Instruction 16.
1st: ; 2nd: ; 3rd:
* Need not be completed by stockholders delivering Shares by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares evidenced by each Share Certificate
delivered to the Depositary are being tendered hereby. See Instruction 4.
*** If you do not designate an order, then in the event less than all Shares tendered are purchased due
to proration, Shares will be selected for purchase by the Depositary.
</TABLE>
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS
LETTER OF TRANSMITTAL CAREFULLY.
This Letter of Transmittal is to be completed by stockholders either if
certificates evidencing Shares (as defined below) are to be forwarded herewith
or if delivery of Shares is to be made by book-entry transfer to the
Depositary's account at The Depository Trust Company ("DTC" or the "Book-Entry
Transfer Facility") pursuant to the book-entry transfer procedure described in
Section 3 of the Offer to Purchase (as defined below). Delivery of documents to
the Book-Entry Transfer Facility does not constitute delivery to the Depositary.
Stockholders whose certificates evidencing Shares ("Share Certificates") are
not immediately available or who cannot deliver their Share Certificates and all
other documents required hereby to the Depositary prior to the Expiration Date
or who cannot complete the procedure for delivery by book-entry transfer on a
timely basis and who wish to tender their Shares must do so pursuant to the
guaranteed delivery procedure described in Section 3 of the Offer to Purchase.
See Instruction 2.
/ / CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE
DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE
FOLLOWING:
Name of Tendering Institution ____________________________________________
Account No. ______________________________________________________________
Transaction Code No. _____________________________________________________
/ / 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) __________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution which Guaranteed Delivery ______________________________
Give Account Number and Transaction Code Number if delivered by book-entry
transfer:
Account No. ______________________________________________________________
Transaction Code No. _______________________________________________________
Ladies and Gentlemen:
The undersigned hereby tenders to Castle & Cooke, Inc., a Hawaii corporation
(the "Company"), the above-described shares of common stock, no par value (the
"Shares"), at the price per Share indicated in this Letter of Transmittal, net
to the seller in cash, upon the terms and subject to the conditions set forth in
the Company's Offer to Purchase, dated May 15, 1998 (the "Offer to Purchase"),
receipt of which is hereby acknowledged, and in this Letter of Transmittal
(which, as amended from time to time, together constitute the "Offer").
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith, in accordance with the terms of the Offer (including, if the
Offer is extended or amended, the terms and conditions of such extension or
amendment), the undersigned hereby sells, assigns and transfers to, or upon the
order of, the Company all right, title and interest in and to all Shares
tendered hereby or orders the registration of such Shares tendered by book-entry
transfer that are purchased pursuant to the Offer to or upon the order of the
Company and hereby irrevocably constitutes and appoints the Depositary the true
and lawful agent and attorney-in-fact of the undersigned with respect to such
Shares, with full power of substitution (such power of attorney being deemed to
be an irrevocable power coupled with an interest), to (i) deliver Share
Certificates evidencing such Shares, or transfer ownership of such Shares on the
account books maintained by the Book-Entry Transfer Facility, together, in
either case, with all accompanying evidences of transfer and authenticity, to or
upon the order of the Company, upon receipt by the Depositary, as the
2
<PAGE>
undersigned's agent, of the Purchase Price (as defined below) with respect to
such Shares, (ii) present Share Certificates for cancellation and transfer on
the books of the Company and (iii) receive all benefits and otherwise exercise
all rights of beneficial ownership of such Shares, all in accordance with the
terms of the Offer.
The undersigned hereby represents and warrants to the Company that (i) the
undersigned understands that tenders of Shares pursuant to any one of the
procedures described in Section 3 of the Offer to Purchase and in the
Instructions hereto will constitute the undersigned's acceptance of the terms
and conditions of the Offer, including the undersigned's representation and
warranty that (a) 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 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and (b) such tender of Shares complies with Rule 14e-4;
(ii) when and to the extent the Company accepts the Shares for purchase, the
Company will acquire good, marketable and unencumbered title to them, free and
clear of all security interests, liens, charges, encumbrances, conditional sales
agreements or other obligations relating to their sale or transfer, and not
subject to any adverse claim; (iii) on request, the undersigned will execute and
deliver any additional documents the Depositary or the Company deems necessary
or desirable to complete the assignment, transfer and purchase of the Shares
tendered hereby; (iv) the undersigned has read and agrees to all of the terms of
the Offer; and (v) the undersigned has full power and authority to tender, sell,
assign and transfer Shares tendered hereby.
The names and addresses of the registered holders should be printed, if they
are not already printed above, exactly as they appear on the Share Certificates
tendered hereby. The certificate numbers, the number of Shares represented by
such Share Certificates, the number of Shares that the undersigned wishes to
tender and the purchase price at which such Shares are being tendered should be
indicated in the appropriate boxes.
THE UNDERSIGNED UNDERSTANDS THAT THE COMPANY WILL DETERMINE A SINGLE PER
SHARE PRICE (NOT GREATER THAN $19.50 NOR LESS THAN $17.75 PER SHARE) (THE
"PURCHASE PRICE") THAT IT WILL PAY FOR SHARES VALIDLY TENDERED PURSUANT TO THE
OFFER TAKING INTO ACCOUNT THE NUMBER OF SHARES SO TENDERED AND THE PRICES
SPECIFIED BY TENDERING STOCKHOLDERS. THE UNDERSIGNED UNDERSTANDS THAT THE
COMPANY WILL SELECT THE PURCHASE PRICE THAT WILL ALLOW IT TO BUY 3,000,000
SHARES (OR SUCH LESSER NUMBER OF SHARES AS ARE VALIDLY TENDERED AT PRICES NOT
GREATER THAN $19.50 NOR LESS THAN $17.75 PER SHARE) PURSUANT TO THE OFFER. THE
UNDERSIGNED UNDERSTANDS THAT ALL SHARES VALIDLY TENDERED AT PRICES AT OR BELOW
THE PURCHASE PRICE WILL BE PURCHASED AT THE PURCHASE PRICE, NET TO THE SELLER IN
CASH, UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF THE OFFER, INCLUDING ITS
PRORATION PROVISIONS, AND THAT THE COMPANY WILL RETURN ALL OTHER SHARES,
INCLUDING SHARES TENDERED AND NOT WITHDRAWN AT PRICES GREATER THAN THE PURCHASE
PRICE AND SHARES NOT PURCHASED BECAUSE OF PRORATION.
The undersigned recognizes that under certain circumstances set forth in the
Offer to Purchase, the Company may terminate or amend the Offer or may not be
required to purchase any of the Shares tendered hereby or may accept for payment
fewer than all of the Shares tendered hereby. The undersigned understands that
Share Certificates not tendered or not purchased will be returned to the
undersigned at the address indicated above, unless otherwise indicated under the
"Special Payment Instructions" or "Special Delivery Instructions" below. The
undersigned recognizes that the Company has no obligation, pursuant to the
"Special Payments Instructions," to transfer any Share Certificate from the name
of its registered holder, or to order the registration or transfer of such
Shares tendered by book-entry transfer, if the Company purchases none of the
Shares represented by such certificate or tendered by such book-entry transfer.
The undersigned understands that acceptance of Shares by the Company for
payment will constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Offer.
The check for the Purchase Price for such of the tendered Shares as are
purchased will be issued to the order of the undersigned and mailed to the
address indicated above unless otherwise indicated under the "Special Payment
Instructions" or the "Special Delivery Instructions" below.
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 of the undersigned under this Letter of Transmittal shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. Except as stated in the Offer to Purchase, this tender is
irrevocable.
3
<PAGE>
PRICE (IN DOLLARS) PER SHARE AT WHICH
SHARES ARE BEING TENDERED
IF SHARES ARE BEING TENDERED AT MORE THAN ONE PRICE, USE A
SEPARATE LETTER OF TRANSMITTAL FOR EACH PRICE SPECIFIED.
(SEE INSTRUCTION 5)
CHECK ONLY ONE BOX. IF MORE THAN ONE BOX IS CHECKED, OR IF
NO BOX IS CHECKED (EXCEPT AS PROVIDED IN THE ODD LOTS
INSTRUCTIONS), THERE IS NO PROPER TENDER OF SHARES.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
/ / 17.75 / / 18.125 / / 18.50 / / 18.875 / / 19.25
/ / 17.875 / / 18.25 / / 18.625 / / 19.00 / / 19.375
/ / 18.00 / / 18.375 / / 18.75 / / 19.125 / / 19.50
</TABLE>
ODD LOTS
(SEE INSTRUCTION 8)
To be completed ONLY if Shares are being tendered by or on behalf of a
person owning beneficially, as of the close of business on May 11, 1998, and
who continues to own beneficially as of the Expiration Date, an aggregate of
fewer than 100 Shares.
The undersigned either (check one box):
/ / was the beneficial owner, as of the close of business on May 11,
1998, of an aggregate of fewer than 100 Shares all of which are being
tendered, or
/ / is a broker, dealer, commercial bank, trust company or other nominee
which:
(a) is tendering, for the beneficial owners thereof, Shares with respect
to which it is the record owner, and
(b) believes, based upon representations made to it by such beneficial
owners, that each such person was the beneficial owner, as of the
close of business on May 11, 1998, of an aggregate of fewer than
100 Shares and is tendering all of such Shares.
If you do not wish to specify a purchase price, check the following box,
in which case you will be deemed to have tendered at the Purchase Price
determined by the Company in accordance with the terms of the Offer (persons
checking this box need not indicate the price per Share in the box entitled
"Price (in Dollars) Per Share at Which Shares are Being Tendered" in this
Letter of Transmittal). / /
4
<PAGE>
<TABLE>
<S> <C>
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 6, 7 AND 9) (SEE INSTRUCTIONS 1, 4, 6 AND 9)
To be completed ONLY if the check for the To be completed ONLY if the check issued in
purchase price of Shares purchased or Share the name of the undersigned for the purchase
Certificates evidencing Shares not tendered price of Shares purchased or Share
or not purchased are to be issued in the Certificates evidencing Shares not tendered
name of some-one other than the undersigned. or not purchased are to be mailed to someone
Issue / / check / / Share Certificate(s) other than the undersigned, or to the
to: undersigned at an address other than that
Name: shown under "Description of Shares
Tendered."
Mail / / check / / Share Certificate(s)
(Please to:
Print) Name:
Address:
(Include Zip (Please Print)
Code) Address:
(Taxpayer Identification or Social (Include Zip Code)
Security Number)
(See Substitute Form W-9
below)
</TABLE>
5
<PAGE>
IMPORTANT
STOCKHOLDERS: SIGN HERE
(SEE INSTRUCTIONS 1 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 CONTAINED HEREIN)
Signature(s) of Holder(s): ___________________________________________________
___________________________________________________
Dated: _________________________________, 1998
Must be signed by registered holder(s) exactly as name(s) appear(s) on Share
Certificates or on a security position listing or by a person(s) authorized to
become registered holder(s) 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. See Instruction 6.
Name(s): _____________________________________________________________________
_____________________________________________________________________
(Please Print)
Capacity (full title): _______________________________________________________
Address: _____________________________________________________________________
_____________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number: ______________________________________________
Taxpayer Identification or
Social Security Number(s): ___________________________________________________
(See Substitute Form W-9 contained herein)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 6)
FOR USE BY FINANCIAL INSTITUTIONS ONLY.
PLACE MEDALLION GUARANTEE IN SPACE BELOW.
Area Code and Telephone Number: ______________________________________________
Dated: _________________________________, 1998
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. All signatures on this Letter of Transmittal
must be guaranteed by a firm which is a member firm of a registered national
securities exchange or the National Association of Securities Dealers, Inc. or
by a commercial bank or trust company having an office, branch or agency in
the United States which is a member of one of the Stock Transfer Association's
approved medallion programs (such as Securities Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Program or the Stock
Exchange Medallion Program) (each of the foregoing being referred to as an
"Eligible Institution"), unless (i) this Letter of Transmittal is signed by
the registered holder(s) of the Shares (which term, for purposes of this
document, shall include any participant in the Book-Entry Transfer Facility
whose name appears on a security position listing as the owner of Shares)
tendered hereby and such holder(s) has (have) completed neither the box
entitled "Special Payment Instructions" nor the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (ii) such Shares are tendered
for the account of an Eligible Institution. See Instruction 6.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARE CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be used either if Share
Certificates are to be forwarded herewith or if Shares are to be delivered by
book-entry transfer pursuant to the procedure set forth in Section 3 of the
Offer to Purchase. Share Certificates evidencing ALL physically tendered
Shares, or a confirmation of a book-entry transfer into the Depositary's
account at the Book-Entry Transfer Facility of all Shares delivered by
book-entry transfer as well as a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) and any other documents required by this
Letter of Transmittal, must be received by the Depositary at one of its
addresses set forth herein prior to the Expiration Date. If Share Certificates
are forwarded to the Depositary in multiple deliveries, a properly completed
and duly executed Letter of Transmittal must accompany each such delivery.
Stockholders whose Share Certificates are not immediately available, who
cannot deliver their Share Certificates and all other required documents to
the Depositary prior to the Expiration Date or who cannot complete the
procedure for delivery by book-entry transfer on a timely basis may tender
their Shares pursuant to the guaranteed delivery procedure described in
Section 3 of the Offer to Purchase. Pursuant to such procedure: (i) such
tender must be made by or through an Eligible Institution; (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in
the form made available by the Company, must be received by the Depositary
prior to the Expiration Date; and (iii) the Share Certificates evidencing all
physically delivered Shares in proper form for transfer by delivery, or a
confirmation of a book-entry transfer into the Depositary's account at the
Book-Entry Transfer Facility of all Shares delivered by book-entry transfer,
in each case together with a Letter of Transmittal (or a facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
and any other documents required by this Letter of Transmittal, must be
received by the Depositary within three New York Stock Exchange, Inc. ("NYSE")
trading days after the date of execution of such Notice of Guaranteed
Delivery, all as described in Section 3 of the Offer to Purchase.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE CERTIFICATES
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY
TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. By execution of this Letter of
Transmittal (or a facsimile hereof), all tendering stockholders waive any
right to receive any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the Share Certificate numbers, the number of
Shares evidenced by such Share Certificates and the number of Shares tendered
should be listed on a separate signed schedule and attached hereto.
7
<PAGE>
4. PARTIAL TENDERS AND UNPURCHASED SHARES (NOT APPLICABLE TO STOCKHOLDERS
WHO TENDER BY BOOK-ENTRY TRANSFER). If fewer than all the Shares evidenced by
any Share Certificate delivered to the Depositary herewith are to be tendered
hereby, fill in the number of Shares which are to be tendered in the column
entitled "Number of Shares Tendered" of the box captioned "Description of
Shares Tendered." In such cases, new Share Certificate(s) evidencing the
remainder of the Shares that were evidenced by the Share Certificates
delivered to the Depositary herewith will be sent to the person(s) signing
this Letter of Transmittal, unless otherwise provided in either the "Special
Payment Instructions" or "Special Delivery Instructions" box on this Letter of
Transmittal, as soon as practicable after the expiration or termination of the
Offer. All Shares evidenced by Share Certificates delivered to the Depositary
will be deemed to have been tendered unless otherwise indicated.
5. INDICATION OF PRICE AT WHICH SHARES ARE BEING TENDERED. For Shares to
be properly tendered, the stockholder must check the box indicating the price
per Share at which he is tendering Shares under "Price (In Dollars) Per Share
at Which Shares Are Being Tendered" on this Letter of Transmittal, provided,
however, that an Odd Lot Owner (as defined in Section 2 of the Offer to
Purchase) may check the box above in the section entitled "Odd Lots"
indicating that he is tendering all Shares at the Purchase Price. ONLY ONE
PRICE BOX MAY BE CHECKED. IF MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS
CHECKED, THERE IS NO VALID TENDER OF SHARES (OTHER THAN PURSUANT TO TENDERS BY
ODD LOT OWNERS AS PROVIDED HEREIN). A stockholder wishing to tender portions
of his Share holdings at different prices must complete a separate Letter of
Transmittal for each price at which he wishes to tender each such portion of
his Shares. The same Shares cannot be tendered (unless previously properly
withdrawn as provided in Section 4 of the Offer to Purchase) at more than one
price.
6. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the registered
holder(s) of the Shares tendered hereby, the signature(s) must correspond with
the name(s) as written on the face of the Share Certificates evidencing such
Shares without alteration, enlargement or any other change whatsoever.
If any Share tendered hereby is owned of record by two or more persons,
all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in the names of
different holders, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of such
Shares.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of Share Certificates or separate
stock powers are required, unless payment is to be made to, or Share
Certificates evidencing Shares not tendered or not purchased are to be issued
in the name of, a person other than the registered holder(s), in which case,
the Share Certificate(s) evidencing the Shares tendered hereby must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear(s) on such Share
Certificate(s). Signatures on such Share Certificate(s) and stock powers 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 Shares tendered hereby, the Share Certificate(s)
evidencing the Shares tendered hereby must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on such Share Certificate(s). Signatures on
such Share Certificate(s) and stock powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal or any Share Certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, such person should so indicate when signing, and
proper evidence satisfactory to the Company of such person's authority so to
act must be submitted.
7. STOCK TRANSFER TAXES. Except as otherwise provided in this
Instruction 7, the Company will pay all stock transfer taxes with respect to
the sale and transfer of any Shares to it or its order pursuant to the Offer.
If, however, payment of the purchase price of any Shares purchased is to be
made to, or Share Certificate(s) evidencing Shares not tendered or not
purchased is (are) to be issued in the name of, a person other than the
registered holder(s), the amount of any stock transfer taxes (whether
8
<PAGE>
imposed on the registered holder(s), such other person or otherwise) payable
on account of the transfer to such other person will be deducted from the
purchase price of such Shares purchased, unless evidence satisfactory to the
Company of the payment of such taxes, or exemption therefrom, is submitted.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Share Certificates evidencing the
Shares tendered hereby.
8. ODD LOTS. As described in Section 1 of the Offer to Purchase, if the
Company is to purchase less than all Shares tendered before the Expiration
Date, the Shares purchased first will consist of all Shares tendered by any
stockholder who owned beneficially, as of the close of business on May 11,
1998, and continues to own beneficially as of the Expiration Date, an
aggregate of fewer than 100 Shares, and who tenders all of his Shares at or
below the Purchase Price (including by not designating a purchase price). This
preference will not be available unless the box captioned "Odd Lots" is
completed.
9. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the
purchase price of any Shares tendered hereby is to be issued, or Share
Certificate(s) evidencing Shares not tendered or not purchased is (are) to be
issued, in the name of a person other than the person(s) signing this Letter
of Transmittal or if a check issued in the name of the person(s) signing this
Letter of Transmittal or any such Share Certificate is to be sent to someone
other than the person(s) signing this Letter of Transmittal or to the
person(s) signing this Letter of Transmittal but at an address other than that
shown in the box entitled "Description of Shares Tendered" on this Letter of
Transmittal, the appropriate boxes captioned "Special Payment Instructions"
and/or "Special Delivery Instructions" on this Letter of Transmittal must be
completed.
10. IRREGULARITIES. The Company will determine, in its sole discretion,
all questions as to the number of Shares to be accepted, the price to be paid
therefor and the validity, form, eligibility (including time of receipt) and
acceptance for payment of any tender of Shares and its determination shall be
final and binding on all parties. The Company reserves the absolute right to
reject any or all tenders of Shares determined by it not to be in proper form
or the acceptance of or payment for which may be unlawful. The Company also
reserves the absolute right to waive any of the conditions of the Offer or any
defect or irregularity in the tender of any particular Shares and the
Company's interpretation of the terms of the Offer (including these
instructions) will be final and binding on all parties. No tender of Shares
will be deemed to be validly 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 the Company shall
determine. None of the Company, the Depositary, the Information Agent nor any
other person is or will be obligated to give notice of defects of
irregularities in tenders, nor shall any of them incur any liability for
failure to give any such notice.
11. QUESTIONS AND REQUESTS FOR ASSISTANCE OR ADDITIONAL
COPIES. Questions and requests for assistance may be directed to the
Information Agent at its address or telephone number set forth below.
Additional copies of the Offer to Purchase, this Letter of Transmittal and the
Notice of Guaranteed Delivery may be obtained from the Information Agent or
from brokers, dealers, commercial banks or trust companies.
12. SUBSTITUTE FORM W-9. Each tendering stockholder is required to
provide the Depositary with a correct Taxpayer Identification Number ("TIN")
on the Substitute Form W-9 which is provided under "Important Tax Information"
below, and to certify, under penalties of perjury, that such number is correct
and that such stockholder is not subject to backup withholding of federal
income tax. If a tendering stockholder has been notified by the Internal
Revenue Service that such stockholder is subject to backup withholding, such
stockholder must cross out item (2) of the Certification box of the Substitute
Form W-9, unless such stockholder has since been notified by the Internal
Revenue Service that such stockholder is no longer subject to backup
withholding. Failure to provide the information on the Substitute Form W-9 may
subject the tendering stockholder to 31% federal income tax withholding on the
payment of the purchase price of all Shares purchased from such stockholder.
If the tendering stockholder has not been issued a TIN and has applied for one
or intends to apply for one in the near future, such stockholder should check
the box next to "Awaiting TIN" in Part 3 of the Substitute Form W-9, and sign
and date the "Certificate of Awaiting Taxpayer Identification Number." If the
box in Part 3 of Substitute Form W-9 is checked and the Depositary is not
provided with a TIN within 60 days, the Depositary will withhold 31% the
Depositary on all payments of the purchase price to such stockholder until a
TIN is provided to the Depositary.
9
<PAGE>
13. WITHHOLDING ON FOREIGN STOCKHOLDERS. The Depositary will withhold
federal income taxes equal to 30% of the gross payments payable to a foreign
stockholder unless the Depositary determines that a reduced rate of
withholding or an exemption from withholding is applicable. For this purpose,
a foreign stockholder is any stockholder that is not (i) a citizen or resident
of the United States, (ii) a corporation, partnership or other entity created
or organized in or under the laws of the United States or any political
subdivision thereof, (iii) any estate the income of which is subject to United
States federal income taxation regardless of the source of such income, or
(iv) a trust if (x) a court within the United States is able to exercise
primary supervision over the administration of the trust and (y) one or more
United States persons have authority to control all substantial decisions of
the trust. The Depositary will determine a stockholder's status as a foreign
stockholder and eligibility for a reduced rate of, or an exemption from,
withholding by reference to the stockholder's address and to any outstanding
certificates or statements concerning eligibility for a reduced rate of, or
exemption from, withholding unless facts and circumstances indicate that
reliance is not warranted. A foreign stockholder who has not previously
submitted the appropriate certificates or statements with respect to a reduced
rate of, or exemption from, withholding for which such stockholder may be
eligible should consider doing so in order to avoid overwithholding. A foreign
stockholder may be eligible to obtain a refund of tax withheld if such
stockholder meets one of the three tests for capital gain or loss treatment
described in Section 14 of the Offer to Purchase or is otherwise able to
establish that no tax or a reduced amount of tax was due.
14. ORDER OF PURCHASE IN EVENT OF PRORATION. As described in Section 1
of the Offer to Purchase, stockholders may designate the order in which their
Shares are to be purchased in the event of proration. The order of purchase
may have an effect on the federal income tax classification of any gain or
loss on the Shares purchased. See Section 1 of the Offer to Purchase.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF), PROPERLY
COMPLETED AND DULY EXECUTED (TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES
AND SHARE CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER
REQUIRED DOCUMENTS) OR A PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF
GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY ON OR PRIOR TO THE
EXPIRATION DATE (AS DEFINED IN THE OFFER TO PURCHASE).
10
<PAGE>
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. In addition, payments that are made to such stockholder with respect
to Shares purchased pursuant to the Offer may be subject to backup withholding
of 31%.
Certain stockholders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such individual must submit a statement, signed under
penalties of perjury, attesting to such individual's exempt status. Forms of
such statements can be obtained from the Depositary. See the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional instructions.
If backup withholding applies, the Depositary is required to withhold 31%
of any payments made to the stockholder. Backup withholding is not an
additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a stockholder
with respect to Shares purchased pursuant to the Offer, the stockholder is
required to notify the Depositary of such stockholder's correct TIN by
completing the form below certifying (a) that 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 enclosed 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 check the box next to "Awaiting TIN" in Part 3,
and sign and date the "Certificate of Awaiting Taxpayer Identification
Number." If the box in Part 3 of Substitute Form W-9 is checked and the
Depositary is not provided with a TIN within 60 days, the Depositary will
withhold 31% of all payments of the purchase price to such stockholder until a
TIN is provided to the Depositary.
11
<PAGE>
PAYER'S NAME:
<TABLE>
<C> <S> <C>
- -----------------------------------------------------------------------------------------
SUBSTITUTE PART 1--PLEASE Social Security Number
FORM W-9 PROVIDE YOUR TIN IN OR ---------------------
THE BOX AT RIGHT AND Employer Identification Number
CERTIFY BY SIGNING
AND DATING BELOW.
-------------------------------------------------------
PART 2--CERTIFICATION--Under penalties of perjury, I
certify that:
(1) The number shown on this form is my correct
Taxpayer Identification Number (or I am waiting for a
number to be issued to me) and
(2) I am not subject to backup withholding either
because: (a) I am exempt from backup withholding, or
(b) I have not been notified by the Internal
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE Revenue Service (the "IRS") that I am subject to
backup withholding as a result of a failure to
PAYER'S REQUEST FOR TAXPAYER
IDENTIFICATION NUMBER (TIN)
report all interest or dividends, or (c) the IRS
has notified me that I am no longer subject to
backup withholding.
-------------------------------------------------------
PART 3--AWAITING TIN / /
- -----------------------------------------------------------------------------------------
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 of under-reporting
interest or dividends on your tax return. However, if after being notified by the IRS
that you are subject to backup withholding, you received another notification from the
IRS that you are no longer subject to backup withholding, do not cross out Item (2).
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION OF THIS
DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID BACKUP WITHHOLDING.
Signature -------------------------------------------------------- Date
--------------------
Name (Please Print)
Address (Please Print)
----------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
EXCHANGE 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 CERTIFICATE IF YOU CHECKED THE
BOX IN PART 3 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either (1) I
have mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (2) I intend to
mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of
payment, 31% of all reportable payments made to me will be withheld,
but that such amounts will be refunded to me if I then provide a
Taxpayer Identification Number within sixty (60) days.
Signature __________________________ Date __________________________
Name (Please Print) ________________________________________________
Address (Please Print) _____________________________________________
12
<PAGE>
THE INFORMATION AGENT FOR THE OFFER IS:
D. F. KING & CO., INC.
77 Water Street, 20th Floor
New York, New York 10005
(212) 269-5550 (Call Collect)
or
Call Toll Free: (800) 290-6424
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
CASTLE & COOKE, INC.
This Notice of Guaranteed Delivery, or one substantially in the form hereof,
must be used to accept the Offer (as defined below) if: (i) certificates ("Share
Certificates") evidencing shares of common stock, no par value (the "Shares"),
of Castle & Cooke, Inc., a Hawaii corporation (the "Company"), are not
immediately available, (ii) Share Certificates and all other required documents
cannot be delivered to BankBoston, N.A., as Depositary (the "Depositary"), prior
to the Expiration Date (as defined in Section 1 of the Offer to Purchase (as
defined below)) or (iii) the procedure for delivery by book-entry transfer
cannot be completed on a timely basis. This Notice of Guaranteed Delivery may be
delivered by hand, overnight courier or mail to the Depositary. See Section 3 of
the Offer to Purchase.
THE DEPOSITARY FOR THE OFFER IS:
BANKBOSTON, N.A.
<TABLE>
<CAPTION>
BY FIRST CLASS OR EXPRESS MAIL: BY HAND: BY OVERNIGHT:
<S> <C> <C>
BANKBOSTON, N.A. STARS BankBoston, N.A.
Attention: Corporate Reorganization Securities Transfers & Reports Corporate Reorganization Dept.
Dept. Services, Inc. 150 Royal Street
P. O. Box 8029 Attention: BankBoston, N.A. Canton, MA 02021
Boston, MA 02266-8029 One Exchange Place
55 Broadway, 3rd Floor
New York, NY
</TABLE>
TO CONFIRM RECEIPT OF
NOTICE OF GUARANTEED DELIVERY:
(800) 733-5001
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an "Eligible Institution"
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders to Castle & Cooke, Inc., a Hawaii corporation
(the "Company"), upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated May 15, 1998 (the "Offer to Purchase"), and the related
Letter of Transmittal (which together, as from time to time amended, constitute
the "Offer"), receipt of each of which is hereby acknowledged, shares of common
stock, no par value, of the Company (the "Shares") pursuant to the guaranteed
delivery procedures described in Section 3 of the Offer to Purchase.
<PAGE>
PRICE (IN DOLLARS) PER SHARE AT WHICH
SHARES ARE BEING TENDERED
IF SHARES ARE BEING TENDERED AT MORE THAN ONE PRICE, USE A
SEPARATE NOTICE OF GUARANTEED DELIVERY FOR EACH PRICE SPECIFIED.
CHECK ONLY ONE BOX. IF MORE THAN ONE BOX IS CHECKED, OR IF
NO BOX IS CHECKED (EXCEPT AS PROVIDED IN THE ODD LOTS
INSTRUCTIONS), THERE IS NO PROPER TENDER OF SHARES.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
/ / 17.75 / / 18.125 / / 18.50 / / 18.875 / / 19.25
/ / 17.875 / / 18.25 / / 18.625 / / 19.00 / / 19.375
/ / 18.00 / / 18.375 / / 18.75 / / 19.125 / / 19.50
</TABLE>
ODD LOTS
To be completed ONLY if Shares are being tendered by or on behalf of a
person owning beneficially, as of the close of business on May 11, 1998, and
who continues to own beneficially as of the Expiration Date, an aggregate of
fewer than 100 Shares.
The undersigned either (check one box):
/ / was the beneficial owner, as of the close of business on May 11, 1998, of
an aggregate of fewer than 100 Shares, all of which are being tendered,
or
/ / is a broker, dealer, commercial bank, trust company or other nominee
which
(a) is tendering, for the beneficial owners thereof, Shares with respect
to which it is the record owner, and
(b) believes, based upon representations made to it by such beneficial
owners, that each such person was the beneficial owner, as of the close
of business on May 11, 1998, of an aggregate of fewer than 100 Shares,
and is tendering all of such Shares.
If you do not wish to specify a purchase price, check the following box,
in which case you will be deemed to have tendered at the Purchase Price
determined by the Company in accordance with the terms of the Offer (persons
checking this box need not indicate the price per Share in the box entitled
"Price (in Dollars) Per Share at Which Shares Are Being Tendered"). / /
<TABLE>
<S> <C>
PLEASE TYPE OR PRINT SIGN HERE:
(Name(s))
(Certificate number(s) (If Available))
Dated:
(Address(es))
If Shares will be delivered by book-entry
transfer, give the Depositary Trust Company
(Area Code and Telephone Number) Account Number:
</TABLE>
2
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm which is a member of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc. or a commercial bank or trust company having an office or agency
in the United States which is a member of one of the Stock Transfer
Association medallion programs (such as Securities Transfer Agents Medallion
Program, the New Medallion Signature Program or the Stock Exchange Medallion
Program) (each, an "Eligible Institution"), hereby (i) guarantees to deliver
to the Depositary, at one of its addresses set forth above Certificates
evidencing the Shares tendered hereby, in proper form for transfer, or
confirmation of the book-entry transfer of such Shares into the Depositary's
account at The Depository Trust Company, (pursuant to the procedures set forth
in Section 3 of the Offer to Purchase), together with a properly completed
delivery of a Letter of Transmittal (or facsimile thereof) properly completed
and duly executed, with any required signature guarantees (or, in the case of
a book-entry transfer, an Agent's Message (as defined in the Offer to
Purchase)) and any other documents required by the Letter of Transmittal, all
within three New York Stock Exchange, Inc. trading days, (ii) represents that
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
promulgated under the Securities Exchange Act of 1934, as amended, and (iii)
represents that such tender of Shares complies with Rule 14e-4.
<TABLE>
<S> <C>
(Name of Firm) (Authorized Signature)
(Address) (Title)
Name:
(Include Zip Code) (Please Type or Print)
(Area Code and Telephone Number) Dated:
NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS NOTICE.
SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
</TABLE>
3
<PAGE>
CASTLE & COOKE, INC.
OFFER TO PURCHASE FOR CASH
UP TO 3,000,000 SHARES OF ITS COMMON STOCK
AT A PURCHASE PRICE NOT GREATER THAN $19.50
NOR LESS THAN $17.75 PER SHARE
May 15, 1998
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Castle & Cooke, Inc., a Hawaii corporation (the "Company"), is making an
offer to purchase for cash up to 3,000,000 shares of its common stock, no par
value (the "Shares"), at prices not greater than $19.50 nor less than $17.75 per
Share and upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated May 15, 1998, and in the related Letter of Transmittal (which
together constitute the "Offer"). We enclose the materials listed below relating
to the Offer.
The Company will determine a single per Share price (not greater than $19.50
nor less than $17.75 per Share) (the "Purchase Price"), that it will pay for
Shares validly tendered pursuant to the Offer taking into account the number of
Shares so tendered and the prices specified by tendering stockholders. The
Company will select the Purchase Price which will allow it to buy 3,000,000
Shares (or such lesser number of Shares as are validly tendered at prices not
greater than $19.50 nor less than $17.75 per Share) pursuant to the Offer. All
Shares validly tendered at prices at or below the Purchase Price will be
purchased at the Purchase Price, net to the seller in cash, upon the terms and
subject to the conditions of the Offer, including the proration terms thereof.
See Section 1 of the Offer to Purchase.
If, prior to the Expiration Date, more than 3,000,000 Shares (or such
greater number of Shares as the Company may elect to purchase) are validly
tendered, the Company will, upon the terms and subject to the conditions of the
Offer, accept Shares for purchase first from Odd Lot Owners (as defined in
Section 2 of the Offer to Purchase) who validly tender all of their Shares at or
below the Purchase Price and then on a pro rata basis, if necessary, from all
other stockholders whose Shares are validly tendered at or below the Purchase
Price.
The Offer is not conditioned upon any minimum number of Shares being
tendered. The Offer is, however, subject to certain other conditions set forth
in the Offer. See Section 6 of the Offer to Purchase.
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, we are enclosing
the following documents:
1. Offer to Purchase, dated May 15, 1998.
2. Letter to Clients which may be sent to your clients for whose accounts
you hold Shares registered in your name or in the name of your nominee, with
space provided for obtaining such clients' instructions with regard to the
Offer;
3. Letter, dated May 15, 1998, from David H. Murdock, Chairman of the Board
and Chief Executive Officer of the Company, to stockholders of the Company;
4. Letter of Transmittal for your use and for the information of your
clients (together with accompanying Substitute Form W-9 Guidelines);
5. Notice of Guaranteed Delivery to be used to accept the Offer if
certificates for Shares are not immediately available or if the procedure for
book-entry transfer cannot be completed on a timely basis; and
6. Return envelope addressed to BankBoston, N.A., the Depositary.
<PAGE>
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE OFFER,
PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JUNE 19, 1998, UNLESS THE OFFER IS EXTENDED.
No fees or commissions will be payable to brokers, dealers or any other
persons for soliciting tenders of Shares pursuant to the Offer. The Company
will, however, upon request, reimburse you for customary mailing and handling
expenses incurred by you in forwarding any of the enclosed materials to the
beneficial owners of Shares held by you as a nominee or in a fiduciary capacity.
The Company will pay or cause to be paid any stock transfer taxes on its
purchase of Shares, except as otherwise provided in Instruction 7 of the Letter
of Transmittal.
In order to take advantage of the Offer, a duly executed and properly
completed Letter of Transmittal and any other required documents should be sent
to the Depositary with either certificate(s) representing the tendered Shares,
or confirmation of their book-entry transfer, all in accordance with the
instructions set forth in the Letter of Transmittal and the Offer to Purchase.
As described in Section 3 of the Offer to Purchase, tenders may be made
without the concurrent deposit of stock certificates or concurrent compliance
with the procedure for book-entry transfer, if such tenders are made by or
through a broker or dealer which is a member firm of a registered national
securities exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office, branch or agency in the
United States which is a member of one of the Stock Transfer Association's
approved medallion programs (such as Securities Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Program or the Stock
Exchange Medallion Program). Certificates for Shares so tendered (or a
confirmation of a book-entry transfer of such Shares into the Depositary's
account at the "Book-Entry Transfer Facility" described in the Offer to
Purchase), together with a properly completed and duly executed Letter of
Transmittal and any other documents required by the Letter of Transmittal, must
be received by the Depositary within three New York Stock Exchange, Inc. trading
days after timely receipt by the Depositary of a properly completed and duly
executed Notice of Guaranteed Delivery.
Any inquiries you may have with respect to the Offer should be addressed to
the Information Agent at its address and telephone number set forth on the back
cover page of the Offer to Purchase.
Additional copies of the enclosed material may be obtained from the
Information Agent, D.F. King & Co., Inc. Telephone (800) 290-6424 (Toll Free).
Very truly yours,
CASTLE & COOKE, INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
THE AGENT OF THE COMPANY, THE INFORMATION AGENT OR THE DEPOSITARY, OR AUTHORIZE
YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF
ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND
THE STATEMENTS CONTAINED THEREIN.
2
<PAGE>
CASTLE & COOKE, INC.
OFFER TO PURCHASE FOR CASH
UP TO 3,000,000 SHARES OF ITS COMMON STOCK
AT A PURCHASE PRICE NOT GREATER THAN
$19.50 NOR LESS THAN $17.75 PER SHARE
May 15, 1998
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated May 15,
1998, and the related Letter of Transmittal (which together constitute the
"Offer"), in connection with the Offer by Castle & Cooke, Inc., a Hawaii
corporation (the "Company"), to purchase for cash up to 3,000,000 shares of its
common stock, no par value (the "Shares"), at prices not greater than $19.50 nor
less than $17.75 per Share, upon the terms and subject to the conditions of the
Offer. Also enclosed herewith is certain other material related to the Offer,
including a letter, dated May 15, 1998, from David H. Murdock, Chairman of the
Board and Chief Executive Officer of the Company, to stockholders of the
Company.
The Company will determine a single per Share price (not greater than $19.50
nor less than $17.75 per Share) (the "Purchase Price") that it will pay for
Shares validly tendered pursuant to the Offer taking into account the number of
Shares so tendered and the prices specified by tendering stockholders. The
Company will select the Purchase Price which will allow it to buy 3,000,000
Shares (or such lesser number of Shares as are validly tendered at prices not
greater than $19.50 nor less than $17.75 per Share) pursuant to the Offer. All
Shares validly tendered prior to the Expiration Date at prices at or below the
Purchase Price will be purchased at the Purchase Price, net to the seller in
cash, upon the terms and subject to the conditions of the Offer, including the
proration terms thereof. The Company will return all other Shares, including
Shares tendered at prices greater than the Purchase Price and Shares not
purchased because of proration. See Section 1 of the Offer to Purchase.
If, prior to the Expiration Date, more than 3,000,000 Shares (or such
greater number of Shares as the Company may elect to purchase) are validly
tendered, the Company will, upon the terms and subject to the conditions of the
Offer, accept Shares for purchase first from Odd Lot Owners (as defined in
Section 2 of the Offer to Purchase) who validly tender all of their Shares at or
below the Purchase Price and then on a pro rata basis, if necessary, from all
other stockholders whose Shares are validly tendered at or below the Purchase
Price.
WE ARE THE HOLDER OF RECORD OF SHARES HELD FOR YOUR ACCOUNT. AS SUCH, WE ARE
THE ONLY ONES WHO CAN TENDER YOUR SHARES, AND THEN ONLY PURSUANT TO THE
INSTRUCTIONS YOU SET FORTH ON THE ATTACHED INSTRUCTION FORM. WE ARE SENDING YOU
THE LETTER OF TRANSMITTAL FOR YOUR INFORMATION ONLY; YOU CANNOT USE IT TO TENDER
SHARES WE HOLD FOR YOUR ACCOUNT.
Please instruct us as to whether you wish us to tender any or all of the
Shares we hold for your account on the terms and subject to the conditions of
the Offer.
We call your attention to the following:
1. You may tender Shares at prices (in multiples of $.125), not greater
than $19.50 nor less than $17.75 per Share, as indicated in the attached
Instruction Form, net to you in cash.
2. The Offer is not conditioned upon any minimum number of Shares being
tendered. The Offer is, however, subject to certain other conditions set forth
in the Offer.
3. The Offer, proration period, and withdrawal rights will expire at 12:00
midnight, New York City time, on Friday, June 19, 1998, unless the Company
extends the Offer.
4. The Offer is for up to 3,000,000 Shares, constituting approximately 15%
of the Shares outstanding as of May 11, 1998.
<PAGE>
5. Tendering stockholders will not be obligated to pay any brokerage
commissions, solicitation fees or, subject to Instruction 7 of the Letter of
Transmittal, stock transfer taxes on the Company's purchase of Shares pursuant
to the Offer.
6. If you owned beneficially as of the close of business on May 11, 1998,
an aggregate of fewer than 100 Shares and you instruct us to tender on your
behalf all the Shares of which we are the holder of record at or below the
Purchase Price before the expiration of the Offer and you check the appropriate
space in the box captioned "Odd Lots" in the attached Instruction Form, the
Company will accept all such Shares for purchase before proration, if any, of
the purchase of other Shares tendered at or below the Purchase Price.
7. If you wish to tender portions of your Shares at different prices you
must complete a separate Instruction Form for each price at which you wish to
tender each portion of your Shares. We must submit separate Letters of
Transmittal on your behalf for each price you will accept.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing, and returning to us the attached Instruction Form.
An envelope to return your Instruction Form to us is enclosed. If you authorize
us to tender your Shares, we will tender all such Shares unless you specify
otherwise on the attached Instruction Form.
YOUR INSTRUCTION FORM SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US
TO SUBMIT A TENDER ON YOUR BEHALF ON OR BEFORE THE EXPIRATION OF THE OFFER. THE
OFFER, PRORATION PERIOD, AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON FRIDAY, JUNE 19, 1998, UNLESS THE COMPANY EXTENDS THE OFFER.
As described in Section 1 of the Offer to Purchase, if before the Expiration
Date more than 3,000,000 Shares (or such greater number of Shares as the Company
elects to purchase) are validly tendered at or below the Purchase Price, the
Company will accept Shares for purchase at the Purchase Price in the following
order of priority:
(a) first, all Shares validly tendered at or below the Purchase Price
prior to the Expiration Date by any Odd Lot Owner (as defined in Section 2
of the Offer to Purchase) who:
(1) tenders all Shares beneficially owned by such Odd Lot Owner at or
below the Purchase Price (partial tenders will not qualify for this
preference); and
(2) completes the section captioned "Odd Lots" on the Letter of
Transmittal and, if applicable, on the Notice of Guaranteed Delivery; and
(b) then, after purchase of all of the foregoing Shares, all other
Shares validly tendered at or below the Purchase Price before the Expiration
Date on a pro rata basis, if necessary (with adjustments to avoid purchases
of fractional Shares).
The Offer is not being made to, nor will the Company accept tenders from,
holders of Shares in any jurisdiction in which the Offer or its acceptance would
not comply with the securities or Blue Sky laws of such jurisdiction. The
Company is not aware of any jurisdiction in which the making of the Offer or the
tender of Shares would not be in compliance with the laws of such jurisdictions.
However, the Company reserves the right to exclude holders in any jurisdiction
in which it is asserted that the Offer cannot lawfully be made. So long as the
Company makes a good faith effort to comply with any state law deemed applicable
to the Offer, if it cannot do so, the Company believes that the exclusion of
holders residing in such jurisdictions is permitted under Rule 13e-4(f)(9)
promulgated under the Exchange Act. In any jurisdiction the securities or Blue
Sky laws of which require the Offer to be made by a licensed broker or dealer,
the Offer shall be deemed to be made on the Company's behalf by one or more
registered brokers or dealers licensed under the laws of such jurisdiction.
2
<PAGE>
INSTRUCTION FORM
WITH RESPECT TO OFFER TO PURCHASE FOR CASH
UP TO 3,000,000 SHARES OF COMMON STOCK OF
CASTLE & COOKE, INC.
AT A PURCHASE PRICE NOT GREATER THAN
$19.50 NOR LESS THAN $17.75 PER SHARE
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase, dated May 15, 1998, and the related Letter of Transmittal (which
together constitute the "Offer"), in connection with the offer by Castle &
Cooke, Inc., a Hawaii corporation (the "Company"), to purchase for cash
3,000,000 shares of its common stock, no par value (the "Shares"), at prices not
greater than $19.50 nor less than $17.75 per Share, upon the terms and subject
to the conditions of the Offer.
The Company will determine a single per Share price (not greater than $19.50
nor less than $17.75 per Share) (the "Purchase Price") that it will pay for the
Shares validly tendered pursuant to the Offer taking into account the number of
Shares so tendered and the prices specified by tendering stockholders. The
Company will select the Purchase Price which will allow it to buy 3,000,000
Shares (or such lesser number of Shares as are properly tendered at prices not
greater than $19.50 nor less than $17.75 per Share) pursuant to the Offer. All
Shares validly tendered at prices at or below the Purchase Price will be
purchased at the Purchase Price, net to the seller in cash, upon the terms and
subject to the conditions of the Offer, including the proration terms thereof.
The Company will return all other Shares, including Shares tendered at prices
greater than the Purchase Price and Shares not purchased because of proration.
See Section 1 of the Offer to Purchase.
3
<PAGE>
/ / By checking this box, all Shares held by us for your account will be
tendered. If fewer than all of the Shares are to be tendered, please check
the box below and indicate below the aggregate number of Shares to be
tendered by us.
________________________ Shares (1)
--------------------------
(1) Unless otherwise indicated, it will be assumed that all Shares held for
the account of the undersigned are to be tendered.
PRICE (IN DOLLARS) PER SHARE AT
WHICH SHARES ARE BEING TENDERED
IF SHARES ARE BEING TENDERED AT MORE THAN ONE PRICE,
USE A SEPARATE INSTRUCTION FORM FOR EACH PRICE SPECIFIED.
CHECK ONLY ONE BOX. IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX IS CHECKED
(EXCEPT AS PROVIDED IN THE ODD LOTS INSTRUCTIONS BELOW), THERE IS NO
PROPER TENDER OF SHARES.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
/ / 17.75 / / 17.875 / / 18.00 / / 18.125 / / 18.25
/ / 18.375 / / 18.50 / / 18.625 / / 18.75 / / 18.875
/ / 19.00 / / 19.125 / / 19.25 / / 19.375 / / 19.50
</TABLE>
ODD LOTS
/ / By checking this box, the undersigned represents that the undersigned
owned beneficially, as of the close of business on May 11, 1998, an
aggregate of fewer than 100 Shares, and is tendering or is instructing the
applicable record holder(s) to tender all such Shares.
/ / Check this box, if you do not wish to specify a purchase price, in which
case you will be deemed to have tendered at the Purchase Price determined
by the Company in accordance with the terms of the Offer (persons checking
this box need not indicate the price per Share in the box entitled "Price
(in Dollars) Per Share at Which Shares Are Being Tendered").
SIGNATURE BOX
SIGNATURE(S): ________________________________________________________________
DATED: _______________________________________________________________________
NAME(S) AND ADDRESS(ES): _____________________________________________________
(PLEASE PRINT)
AREA CODE AND TELEPHONE NUMBER: ______________________________________________
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER: ___________________________
4
<PAGE>
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.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF
- ---------------------------------------------------------------------------
<S> <C> <C>
1. An individual's account The individual
2. Two or more individuals (joint The actual owner of the account
account) or, if combined funds, any one of
the individuals(1)
3. Husband and wife (joint account) The actual owner of the account
or, if joint funds, either
person(1)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. Adult and minor (joint account) The adult or, if the minor is the
only contributor, the minor(1)
6. Account in the name of guardian or The ward, minor, or incompetent
committee for a designated ward, person(3)
minor, or incompetent person
7. a. The usual revocable savings The grantor-trustee(1)
trust account (grantor is also
trustee)
b. So-called trust account that is The actual owner(1)
not a legal or valid trust under
State law
- ---------------------------------------------------------------------------
<CAPTION>
- ---------------------------------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF
- ---------------------------------------------------------------------------
<S> <C> <C>
8. Sole proprietorship account The owner(4)
9. A valid trust, estate, or pension The legal entity (Do not furnish
trust the identifying number of the
personal representative or
trustee unless the legal entity
itself is not designated in the
account title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization account
12. Partnership account held in the The partnership
name of the business
13. Association, club, or other tax- The organization
exempt organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of The public entity
Agriculture in the name of a public
entity (such as a State or local
government, school district, or
prison) that receives agricultural
program payments
- ---------------------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME, THE NUMBER WILL BE
CONSIDERED TO BE THAT OF THE FIRST NAME LISTED.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER -- If you don't have a taxpayer identification number or you
don't know your number, obtain Form SS-5, Application for a Social Security
Number Card, or Form SS-4, Application for Employer Identification Number, at
the local office of the Social Security Administration or the Internal Revenue
Service and apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING -- Payees specifically exempted from
backup withholding on ALL payments include the following:
- - A corporation.
- - A financial institution.
- - An organization exempt from tax under section 501 (a), or an individual
retirement plan.
- - The United States or any agency or instrumentality thereof.
- - A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- - A foreign government, a political subdivision of a foreign government, or any
agency or instrumentality thereof.
- - An international organization or any agency, or instrumentality thereof.
- - A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
- - A real estate investment trust.
- - A common trust fund operated by a bank under section 584(a)
- - An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
- - An entity registered at all times under the Investment Company Act of 1940.
- - A foreign central bank of issue.
- - Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- - Payments to nonresident aliens subject to withholding under section 1441.
- - Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
- - Payments of patronage dividends where the amount received is not paid in
money.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
- - Payments of interest not generally subject to backup withholding include the
following:
- - Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid in
the course of the payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
- - Payments of tax-exempt interest (including exempt interest dividends under
section 852).
- - Payments described in section 6049(b)(5) to nonresident aliens.
- - Payments on tax-free covenant bonds under section 1451.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible
erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND
RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE
DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE. -- Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1993, payers must generally
withhold 31% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. -- If you
fall to furnish your taxpayer identification number to a payer, 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.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. -- If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. -- Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/ or
imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE
INTERNAL REVENUE SERVICE
<PAGE>
NEWS RELEASE
CONTACT: EDWARD ROOHAN
(310) 208-3636, EXT. 337
CASTLE & COOKE, INC. ANNOUNCES DUTCH AUCTION
SELF-TENDER OFFER FOR UP TO 3 MILLION SHARES
LOS ANGELES, California, May 11, 1998--Castle & Cooke, Inc. (NYSE:CCS)
announced Monday that its Board of Directors has authorized a Dutch Auction
self-tender offer for up to 3 million shares of the Company's common stock,
representing approximately 15% of its outstanding shares. The tender price range
will be from $17.75 to $19.50 per share. Castle & Cooke shares closed trading
last Friday at $17.00.
The tender offer will be subject to various terms and conditions described
in offering materials to be distributed to shareholders next week. The Company
indicated it would use cash on hand and borrowings under its revolving credit
facility to purchase the shares.
Under the terms of the Dutch Auction offer, shareholders will be given the
opportunity to specify prices within the Company's stated price range at which
they are willing to tender their shares. Upon receipt of the tenders, the
Company will determine a final price that enables it to purchase up to the
stated amount of shares from those shareholders who agreed to sell at or below
the Company-selected purchase price. All shares purchased will be at that
determined price. If more than 3 million shares are tendered at or below the
purchase price, there will be a proration.
David H. Murdock, Chairman and CEO of Castle & Cooke, said: "We believe that
our Company's stock is undervalued at the present time, and that this repurchase
is a prudent response that is in the best interests of the Company and is
consistent with our long-term objective of increasing shareholder value."
Castle & Cooke is a developer of residential and commercial real estate in
Hawaii; Bakersfield, California; Sierra Vista, Arizona; and Orlando, Florida,
and is involved in commercial development in Hawaii, California, Arizona, North
Carolina and Georgia. The Company also owns and operates two of the world's
highest-rated resorts, located on the Island of Lanai in Hawaii.
1
<PAGE>
Castle & Cooke, Inc.
May 15, 1998
To Our Stockholders:
We are pleased to inform you that Castle & Cooke, Inc. is offering to
purchase 3,000,000 shares (representing approximately 15% of the currently
outstanding shares) of its common stock from its stockholders through a tender
offer at prices not greater than $19.50 nor less than $17.75 per share. The
Company is conducting the tender offer through a procedure commonly referred to
as a "Dutch Auction." This procedure allows you to select the price within that
price range at which you are willing to sell your shares to the Company. Based
upon the number of shares tendered and the prices specified by the tendering
stockholders, the Company will determine the single per share price within that
price range that will allow it to buy 3,000,000 shares (or such lesser number of
shares as are validly tendered). All of the shares that are validly tendered at
prices at or below that purchase price will, subject to possible proration, be
purchased at that purchase price, net to the selling stockholder. All other
shares which have been tendered and not purchased will be returned to the
stockholder. The tender offer is not conditioned on any minimum number of shares
being tendered.
The tender offer provides stockholders the opportunity to sell shares for
cash without the usual transaction costs and, in the case of those holders who
own less than 100 shares, without incurring any applicable odd lot discounts.
The tender offer is explained in detail in the enclosed Offer to Purchase
and Letter of Transmittal. If you wish to tender your shares, detailed
instructions on how to tender shares are also in the enclosed materials. We
encourage you to read these materials carefully before making any decision with
respect to the tender offer. Neither the Company nor its Board of Directors
makes any recommendation to any stockholder as to whether to tender or refrain
from tendering shares.
Please note that the tender offer is scheduled to expire at midnight, New
York City time, on Friday, June 19, 1998, unless extended by the Company.
Questions regarding the tender offer may be directed to D.F. King & Co., Inc.,
the Information Agent, at (800) 290-6424 (Toll Free).
Sincerely,
[LOGO]
David H. Murdock
Chairman of the Board
10900 Wilshire Boulevard, Suite 1600 - Los Angeles, California 90024 - (310)
208-3636 - Fax (310) 824-7770
<PAGE>
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell Shares. The Offer is made solely by the Offer to Purchase, dated
May 15, 1998, and the related Letter of Transmittal and is being made to all
holders of Shares. Capitalized terms not defined in this notice are defined in
the Offer to Purchase. The Offer is not being made to nor will the Company
accept tenders from holders of Shares in any jurisdiction in which the Offer or
its acceptance would violate that jurisdiction's laws. The Company is not aware
of any jurisdiction in which the making of the Offer or the tender of Shares
would not be in compliance with the laws of such jurisdiction. In those
jurisdictions whose laws require that the Offer be made by a licensed broker or
dealer, the Offer shall be deemed to be made on the Company's behalf by one or
more registered brokers or dealers licensed under the laws of such
jurisdictions.
Notice of Offer by
CASTLE & COOKE, INC.
to Purchase for Cash up to
3,000,000 Shares of its Common Stock
at a Purchase Price not Greater than $19.50
nor Less than $17.75 per Share
Castle & Cooke, Inc., a Hawaii corporation (the "Company"), invites its
stockholders to tender shares of its common stock, no par value (the "Shares")
to the Company at prices net to the seller in cash, not greater than $19.50 nor
less than $17.75 per Share, specified by such stockholders upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated May 15, 1998
(the "Offer to Purchase"), and in the related Letter of Transmittal (which
together constitute the "Offer"). The information contained in the Offer to
Purchase and the Letter of Transmittal is incorporated by reference herein in
its entirety.
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED.
THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS SET FORTH IN THE
OFFER.
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 19, 1998 (THE "EXPIRATION DATE"),
UNLESS THE OFFER IS EXTENDED.
The Company will, upon the terms and subject to the conditions of the Offer,
determine a single per Share price (not greater than $19.50 nor less than $17.75
per Share) (the "Purchase Price") that it will pay for Shares validly tendered
pursuant to the Offer taking into account the number of Shares so tendered and
the prices specified by tendering stockholders. The Company will select the
Purchase Price which will allow it to buy 3,000,000 Shares (or such lesser
number as are validly tendered at prices not greater than $19.50 nor less than
$17.75 per Share) pursuant to the Offer. All Shares validly tendered at prices
at or below the Purchase Price will be purchased at the Purchase Price, net to
the seller in cash, upon the terms and subject to the conditions of the Offer,
including the proration terms described below. For purposes of the Offer, the
Company will be deemed to have accepted for payment (and thereby purchased),
subject to proration, Shares which are validly tendered at or below the Purchase
Price when, as and if it gives oral or written notice to the Depositary of its
acceptance of such Shares for payment pursuant to the Offer. In all cases,
payment for Shares tendered and accepted for payment pursuant to the Offer will
be made only after timely receipt by the Depositary of certificates for such
Shares (or a timely confirmation of a book-entry transfer of such Shares into
the Depositary's account at the Book-Entry Transfer Facility (as defined in the
Offer to Purchase)), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) and any other documents required by the
Letter of Transmittal. Under no circumstances will the Company pay interest on
the Purchase Price.
Upon the terms and subject to the conditions of the Offer, in the event that
prior to the Expiration Date more than 3,000,000 Shares (or such greater number
of Shares as the Company may elect to purchase
1
<PAGE>
pursuant to the Offer) are validly tendered at or below the Purchase Price, the
Company will accept Shares for purchase, in the following order of priority: (a)
first, all Shares validly tendered by any Odd Lot Owner (as defined in the
Offer) who tenders all such Shares beneficially owned by such Odd Lot Owner at
or below the Purchase Price (partial tenders will not qualify for this
preference) and who completes the box captioned "Odd Lots" on the Letter of
Transmittal, and, if applicable, on the Notice of Guaranteed Delivery, and (b)
then, after purchase of all of the foregoing Shares, all other Shares validly
tendered at or below the Purchase Price before the Expiration Date on a pro rata
basis, if necessary (with adjustments to avoid purchases of fractional Shares).
The Offer provides stockholders who are considering a sale of all or a
portion of their Shares the opportunity to determine the price or prices (not
greater than $19.50 nor less than $17.75 per Share) at which they are willing to
sell their Shares and, if any such Shares are purchased pursuant to the Offer,
to sell those Shares for cash without the usual transaction costs associated
with open-market sales. The Company is making the Offer because the Board of
Directors believes that the purchase of Shares is an attractive use of the
Company's financial resources.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
ANY STOCKHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES.
STOCKHOLDERS MUST MAKE THEIR OWN DECISIONS WHETHER TO TENDER SHARES AND, IF SO,
HOW MANY SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH SHARES SHOULD BE
TENDERED. THE COMPANY HAS BEEN ADVISED THAT NO DIRECTOR OR EXECUTIVE OFFICER OF
THE COMPANY INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER.
The Company reserves the right, at any time or from time to time, in its
sole discretion, to extend the period of time during which the Offer is open by
giving oral or written notice of such extension to the Depositary and making a
public announcement thereof. Subject to certain conditions set forth in the
Offer, the Company also expressly reserves the right to terminate the Offer and
not accept for payment any Shares not theretofore accepted for payment.
Shares tendered pursuant to the Offer may be withdrawn at any time prior to
the Expiration Date and, unless theretofore accepted for payment by the Company,
may also be withdrawn after 12:00 midnight, New York City time, on July 13,
1998. For a withdrawal to be effective, the Depositary must timely receive a
written notice of withdrawal. Such notice of withdrawal must specify the name of
the person who tendered the Shares to be withdrawn, the number of Shares to be
withdrawn and the name of the registered holder (if different from that of the
person who tendered such Shares). If the certificates have been delivered or
otherwise identified to the Depositary, then, prior to the release of such
certificates, the tendering stockholder must also submit the serial numbers of
the particular certificates evidencing the Shares to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution (except in the case of Shares tendered by an Eligible Institution).
If Shares have been tendered pursuant to the procedures for book-entry transfer
set forth in the Offer to Purchase, the notice of withdrawal must specify the
name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with the procedures of
such facility.
THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION, WHICH SHOULD BE READ BEFORE STOCKHOLDERS DECIDE WHETHER TO ACCEPT
OR REJECT THE OFFER AND, IF ACCEPTED, AT WHAT PRICE OR PRICES TO TENDER THEIR
SHARES.
The Offer to Purchase, the Letter of Transmittal and related documents are
being mailed to record holders of Shares and are being furnished to brokers,
banks and similar persons whose names, or the names of whose nominees, appear on
the Company's stockholder list (or, if applicable, who are listed as
participants in a clearing agency's security position listing) for transmittal
to beneficial holders of Shares.
2
<PAGE>
The information required to be disclosed by Rule 13e-4(d)(1) of the
Securities Exchange Act of 1934, as amended, is contained in the Offer to
Purchase and is incorporated in this notice by reference.
Please contact the Information Agent for copies of the Offer to Purchase,
the related Letter of Transmittal and other materials related to the Offer. It
will furnish copies promptly at the Company's expense.
The Information Agent for the Offer is:
D.F. King & Co., Inc.
77 Water Street, 20th Floor
New York, NY 10005
(212) 269-5550 (Call Collect)
-or-
Call Toll Free: (800) 290-6424
3
