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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
August 27, 1999
Date of Report (Date of earliest event reported)
HOST MARRIOTT SERVICES CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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DELAWARE 1-14040 52-1938672
(State of Organization) (Commission File Number) (IRS Employer Identification No.)
</TABLE>
6600 ROCKLEDGE DRIVE
BETHESDA, MARYLAND 20817
(Address of Registrant's Principal Executive Office) (Zip Code)
(301) 380-7000
(Registrant's telephone number, including area code)
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Item 1. Changes in Control of Registrant.
(a) As a result of the filing of a Certificate of Ownership and Merger
with the Secretary of State of the Sate of Delaware on September 1, 1999 (the
"Effective Time") Autogrill Acquisition Co., a Delaware corporation (the
"Purchaser") and a wholly owned subsidiary of Autogrill Overseas S.A., a
Luxembourg corporation that is a wholly owned subsidiary of Autogrill S.p.A., an
Italian corporation ("Parent"), was merged (the "Merger") with and into Host
Marriott Services Corporation, a Delaware corporation (the "Registrant"), with
the Registrant continuing as the surviving corporation (the "Surviving
Corporation"), in accordance with that certain Agreement and Plan of Merger
dated as of July 26, 1999, among the Registrant, the Purchaser and Parent (the
"Merger Agreement"). As a result of the Merger and at the Effective Time, the
Surviving Corporation became, as of the Effective Time, an indirect wholly owned
subsidiary of Parent, and the Purchaser ceased to exist as a separate corporate
entity.
The Merger occurred subsequent to a tender offer (the "Offer") by the
Purchaser for all outstanding shares of common stock, no par value per share
(the "Common Stock"), including the associated series A junior preferred stock
purchase rights (the "Rights"; the Common Stock and the Rights are collectively
hereafter referred to as the "Shares"), issued pursuant to the Rights Agreement
dated as of December 22, 1995 by and between the Registrant and First Chicago
Trust Company of New York, as Rights Agent (as the same may be amended, the
"Rights Agreement"), of the Registrant at a purchase price of $15.75 per Share
in cash, without interest, which Offer expired at 12:00 Midnight, New York City
time, on Thursday, August 26, 1999. On August 27, 1999, the Purchaser accepted
for payment a total of 30,484,407 Shares, representing approximately 90.7% of
the issued and outstanding Shares immediately prior to August 26, 1999, and on
September 1, 1999, the Purchaser accepted for payment an additional total of
210,967 Shares, representing an additional 0.6% of the issued and outstanding
Shares immediately prior to August 26, 1999. As a result of the Offer, the
Purchaser purchased and acquired a total of 30,695,374 Shares.
The Purchaser obtained the funds required to purchase the Shares
through advances made directly by the Parent. The Parent obtained the funds
through two separate Medium Term Multi-Currency Agreements with Cariplo-Cassa di
Risparmio delle Provincie Lombarde S.p.A. (Branch 65 of Milan): one in the
principal amount of Lit. 800 billion (the "Lit. 800 billion Acquisition
Facility") and the second in the principal amount of Lit. 400 billion (the "Lit.
400 billion Acquisition Facility", and together with the Lit. 800 billion
Acquisition Facility, the "Acquisition Facilities"). The Lit. 800 billion
Acquisition Facility is unsecured, while the Lit. 400 billion Acquisition
Facility is secured by short term investments of the Parent (equal to Lit. 400
billion). The LIBOR rate of interest being charged under both Acquisition
Facilities is 12.5 basis points above the elected rate for the applicable
period. The aggregate amount available and drawn down by Parent under the
Acquisition Facilities to fund the purchase of the Shares by the Purchaser
pursuant to the Offer and Merger and to pay related transaction expenses is Lit.
1,200 billion (approximately $661 million based upon the Noon Rate reported on
July 29, 1999). As of the date hereof, the Parent intends to repay such loans
from working capital, a refinancing of the Acquisition Facility or from the
future issuance of debt securities.
At the Effective Time, each issued and outstanding Share (other than
Shares owned by the Registrant or any wholly owned subsidiary of the Registrant
or by Parent, the Purchaser of any other wholly owned subsidiary of Parent and
by stockholders who properly exercise appraisal rights under the General
Corporation Law of the State of Delaware (the "DGCL")) was converted into and
became the right to receive $15.75 per Share in cash, without interest, upon
surrender and delivery of the certificate(s) representing such Shares (together
with a properly completed and duly executed letter of transmittal described
below) to The Bank of New York, as paying agent in connection with the Merger.
Notwithstanding the Merger, Shares held by former stockholders of the Registrant
may be subject to appraisal if appraisal rights are properly exercised under the
DGCL as described in the Notice of Merger and Appraisal Rights Available to
Former Stockholders of the Registrant dated September 10, 1999 and the related
Letter of Transmittal (which together constitute the "Notice of Merger"), which
Notice of Merger was mailed to former stockholders of the Registrant on
September 10, 1999.
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As a result of the Merger, the transfer books of the Registrant were
closed as of the Effective Time and trading in the Shares on The New York Stock
Exchange (the "NYSE") was suspended by the NYSE prior to the opening of the
market on September 1, 1999.
Following the Effective Time, (1) William J. Shaw, J. Williard
Marriott, Jr., Richard E. Marriott, Rosemary M. Collyer, R. Michael McCullough,
Gilbert T. Ray and Andrew J. Young will resign from the Board of Directors of
the Registrant and (2) Gianni Mion, Paolo Prota Giurleo, Carmine Meoli (each a
director of the Purchaser immediately prior to the Effective Time), William W.
McCarten (a director of the Registrant) and Gilberto Benetton, will become
directors of the Surviving Corporation.
(b) There are no arrangements known to the Registrant, including any
pledge by any person of securities of the Registrant, the operation of which may
at a subsequent date result in a change in control of the Registrant.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements
None.
(b) Pro Forma Financial Information
None.
(c) Exhibits
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Exhibit No. Description of Document
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2.1 Agreement and Plan of Merger, dated as of July
26, 1999, by and among Host Marriott Services
Corporation, Autogrill S.p.A. and Autogrill
Acquisition Co.*
2.2 Notice of Merger and Appraisal Rights Available
to Former Stockholders of Host Marriott Services
Corporation dated September 10, 1999.
2.3 Letter of Transmittal to Surrender Certificates
formerly Representing Shares of Common Stock of
Host Marriott Services Corporation dated
September 10, 1999.
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* Filed as an Exhibit to the Solicitation/Recommendation Statement on
Schedule 14D-9 dated as of July 30, 1999 and incorporated by reference
herein.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this Report to be signed on its behalf
by the undersigned hereunto duly authorized.
HOST MARRIOTT SERVICES CORPORATION
By: /s/ Joe P. Martin
-----------------------------------------
Name: Joe P. Martin
Title: Senior Vice President,
General Counsel and Secretary
Date: September 10, 1999
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EXHIBIT INDEX
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Exhibit No. Exhibit
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2.1 Agreement and Plan of Merger, dated as of July 26,
1999, by and among Host Marriott Services Corporation,
Autogrill S.p.A. and Autogrill Acquisition Co.*
2.2 Notice of Merger and Appraisal Rights Available to
Former Stockholders of Host Marriott Services
Corporation dated September 10, 1999.
2.3 Letter of Transmittal to Surrender Certificates formerly
Representing Shares of Common Stock of Host Marriott
Services Corporation dated September 10, 1999.
</TABLE>
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* Filed as an Exhibit to the Solicitation/Recommendation Statement on Schedule
14D-9 dated as of July 30, 1999 and incorporated by reference herein.
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HOST MARRIOTT SERVICES CORPORATION
6600 ROCKLEDGE DRIVE
BETHESDA, MARYLAND 20817
NOTICE OF MERGER AND APPRAISAL RIGHTS
AVAILABLE TO FORMER STOCKHOLDERS OF HOST MARRIOTT SERVICES CORPORATION
September 10, 1999
Dear Former Stockholder of Host Marriott Services Corporation:
NOTICE IS HEREBY GIVEN pursuant to Sections 253(d) and 262(d) of the
General Corporation Law of the State of Delaware (the "DGCL") that the merger
(the "Merger") of Autogrill Acquisition Co., a Delaware corporation (the
"Purchaser"), which is wholly-owned by Autogrill Overseas S.A., a Luxembourg
company, which is a wholly-owned subsidiary of Autogrill S.p.A., an Italian
company (the "Parent"), with and into Host Marriott Services Corporation, a
Delaware corporation ("Host Marriott"), became effective on September 1, 1999.
Because the Purchaser owned more than 90% of Host Marriott's outstanding common
stock (as defined herein) after its recently completed tender offer, the Host
Marriott stockholders (other than the Purchaser) did not have to take any action
to cause the merger to take place. As a result of the merger, your Host Marriott
common stock, no par value per share (the "Common Stock"), including the
associated series A junior preferred stock purchase rights (the "Rights"; the
Common Stock and the Rights are collectively hereafter referred to as the
"Shares"), issued pursuant to the Rights Agreement dated as of December 22, 1995
by and between Host Marriott and First Chicago Trust Company of New York, as
Rights Agent, was automatically converted into the right to receive $15.75 in
cash, without interest, for each Share that you owned. At the time of the merger
you ceased to be a stockholder of Host Marriott.
Enclosed with this letter is a form of Letter of Transmittal to be used to
surrender your Host Marriott stock certificates to The Bank of New York, which
is acting as Paying Agent to disburse funds to former Host Marriott
stockholders. In order to receive payment you must (1) complete the Letter of
Transmittal in accordance with the instructions included in it and (2) deliver
or send the completed Letter of Transmittal and your stock certificates to:
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By Mail By Hand or Overnight Courier
The Bank of New York The Bank of New York
Tender and Exchange Department Tender and Exchange Department
P.O. Box 11248 101 Barclay Street
Church Street Station New York, New York 10286
New York, New York 10286-1248 Receive and Deliver Window
</TABLE>
Upon receipt of your Letter of Transmittal and stock certificates, payment
of $15.75 per Share will be sent to the person designated in the Letter of
Transmittal. Please follow the instructions in the Letter of Transmittal
carefully. Improperly completed Letters of Transmittal may be rejected, and this
could delay your receiving payment.
No payment will be made to you until you submit a properly completed Letter
of Transmittal and the certificates representing Shares of Host Marriott that
you owned. If you cannot locate your stock certificates, you must submit proof
of loss of the certificates and a bond satisfactory to Host Marriott. Your
broker can probably help you with this.
There will be no interest paid with regard to the merger price. Therefore,
you are urged to send your Letter of Transmittal and stock certificates to the
Paying Agent promptly. It is also recommended that if you mail your Letter of
Transmittal to the Paying Agent, you use registered insured mail. If you have
any questions or require additional Letter of Transmittal forms, please contact
the Paying Agent at (800) 507-9357.
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INFORMATION APPLICABLE TO THE MERGER
Information about the background of the merger and the tender offer which
preceded it, and about recommendations of Host Marriott's Board of Directors and
the reasons for those recommendations, is contained in Host Marriott's
Solicitation/Recommendation Statement on Schedule 14D-9, which was sent to Host
Marriott's stockholders in connection with the tender offer. Information about
the Purchaser and the Parent, about recent prices of Host Marriott's stock and
dividends paid with regard to that stock, and other information regarding the
merger and the tender offer is contained in the Offer to Purchase which the
Purchaser sent to Host Marriott's stockholders. If you did not receive copies of
the Schedule 14D-9 and the Offer to Purchase, you can obtain copies by a request
made to Secretary, Host Marriott Services Corporation, 6600 Rockledge Drive,
Bethesda, Maryland 20817; telephone number (301) 380-7000.
SHARES TENDERED AFTER THE TENDER OFFER EXPIRED
This notice and a form of Letter of Transmittal are being sent to each
stockholder of record of Host Marriott whose Shares were not purchased by the
Purchaser through its tender offer. That includes stockholders whose Shares were
not purchased because they were tendered after the tender offer expired. If you
tendered your Shares after the tender offer expired, your stock certificates
probably haven't been returned to you. If you delivered an executed Letter of
Transmittal and the certificates representing your Shares after the tender offer
expired and the stock certificates have not been returned to you, you do not
have to do anything more to receive the $15.75 per Share to which you are
entitled as a result of the merger. Your late tender will be treated as a
submission of the Shares to receive the merger consideration.
RIGHT TO APPRAISAL
Instead of receiving the $15.75 per Share cash payment described above, you
may exercise appraisal rights under Section 262 of the DGCL with regard to any
or all of your Host Marriott Shares. If you exercise those appraisal rights, you
will receive cash equal to the fair value of the Shares as to which you exercise
appraisal rights. That may be more or less than, or equal to, $15.75 per Share.
A copy of Section 262 of the DGCL is included as Exhibit A to this Notice of
Merger. It contains detailed procedures you must follow in order to exercise
your appraisal rights. Failure to follow those procedures will result in loss of
your right to be paid the fair value of your Shares, and instead you will
receive the $15.75 in cash being paid in connection with the merger.
Because only stockholders of record may exercise appraisal rights, if you
beneficially own Shares which are held of record by brokers, fiduciaries,
nominees or others and wish to exercise your appraisal rights, you must instruct
the record holder of your Shares to satisfy the requirements set forth in
Section 262 of the DGCL with regard to your Host Marriott Shares. If the record
holder does not satisfy those requirements, the appraisal rights with regard to
that Host Marriott Share will be lost.
APPRAISAL PROCEDURE
This Notice of Merger and Appraisal Rights from Host Marriott affords
former stockholders of Host Marriott the notice required by Section 262(d)(2) of
the DGCL. The right to appraisal will be lost unless it is perfected by full and
precise satisfaction of the requirements of Section 262, the text of which is
set forth in full in Exhibit A attached hereto. Mere failure to execute and
return a Letter of Transmittal to the Paying Agent does NOT satisfy the
requirements of Section 262; rather, a separate written demand for appraisal
must be properly executed and delivered to Host Marriott as described below.
A former stockholder of Host Marriott who wishes to demand appraisal of his
Shares must make a written demand for appraisal on or prior to September 30,
1999 (i.e., within 20 days after the
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date of mailing of this Notice of Merger and Appraisal Rights). A demand for
appraisal should be addressed to Host Marriott at the following address:
Host Marriott Services Corporation
6600 Rockledge Drive
Bethesda, Maryland 20817
Attention: Secretary
As provided under Section 262, the failure of a former stockholder of Host
Marriott to make a written demand for appraisal within such time limit will
result in the loss of such former stockholder's appraisal rights under such
section. The written demand for appraisal must be executed by or for the
stockholder of record, fully and correctly, and should identify the
stockholder's name as such stockholder's name appears on the certificate(s) for
such stockholder's Shares. If the Shares are owned of record in a fiduciary
capacity, such as by a trustee, guardian or custodian, execution of the demand
must be made in such capacity, and if the Shares are owned of record by more
than one person, such as in a joint tenancy or tenancy in common, the demand
must be executed by or for all joint owners. An authorized agent, including one
or two or more joint owners, may execute the demand for appraisal for a
stockholder of record; however, the agent must identify the record owner(s) and
expressly disclose the fact that, in executing the demand, the agent is acting
as agent for the record owner(s).
A beneficial owner of Shares held in "street name" who desires appraisal
should take such actions as may be necessary to ensure that a timely and proper
demand for appraisal is made by the record holder of such Shares. Shares held
through brokerage firms, banks and other financial institutions are frequently
deposited with and held of record in the name of a nominee of a central security
depository, such as Cede & Co. Any beneficial holder desiring appraisal who
holds Shares through a brokerage firm, bank or other financial institution is
responsible for ensuring that the demand for appraisal is made by the record
holder. The beneficial holder of such Shares should instruct such firm, bank or
institution that the demand for appraisal may be made by the record holder of
the Shares, which may be the nominee of a central security depository if the
Shares have been so deposited. As required by Section 262, a demand for
appraisal must reasonably inform Host Marriott of the identity of the holder(s)
of record (which may be a nominee as described above) and of such holder's
intention to seek appraisal of such Shares.
Within 120 days after the effective time of the Merger, Host Marriott or
any former stockholder who has complied with the requirements of Section 262(a)
and (d) and who is otherwise entitled to appraisal rights may file a petition in
the Delaware Chancery Court, demanding a determination of the value of the
Shares entitled to appraisal. Host Marriott is under no obligation to and has no
present intention to file such a petition. Accordingly, it will be the
obligation of former stockholders seeking appraisal rights to initiate all
necessary action to perfect any appraisal rights within the time prescribed in
Section 262. At any time within 60 days after the effective time of the Merger,
any former stockholder who has demanded appraisal has the right to withdraw the
demand and accept the consideration offered pursuant to the Merger. Any attempt
by a holder of Shares to withdraw his or her appraisal demand more than 60 days
after the effective time of the Merger will require the written approval of Host
Marriott.
Within 120 days after the effective time of the Merger, any former
stockholder who has complied with the requirements of Section 262(a) and (d)
will also be entitled, upon written request, to receive from Host Marriott a
statement setting forth the aggregate number of Shares with respect to which
demands for appraisal have been received and the aggregate number of holders of
such Shares. Such statement must be mailed (i) within 10 days after a written
request therefor has been received by Host Marriott or (ii) by October 10, 1999,
whichever is later.
If a petition for an appraisal is timely filed and service of a copy
thereof is made upon Host Marriott, Host Marriott will then be obligated within
20 days to provided the Register in Chancery in which the petition was filed
with a duly verified list containing the names and addresses of all former
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stockholders of Host Marriott who have demanded payment for their Shares and
with whom agreements as to the value of their Shares have not been reached by
Host Marriott. After notice to such former stockholders, the Delaware Chancery
Court is empowered to conduct a hearing on such petition to determine those
former stockholders who have complied with Section 262 and who have become
entitled to appraisal rights. The Delaware Chancery Court may require the
holders of Shares who have demanded an appraisal for their Shares to submit
their stock certificates to the Register in Chancery for notation thereon of the
pendency of the appraisal proceedings; and if any former stockholder fails to
comply with such direction, the Delaware Chancery Court may dismiss the
proceedings as to such former stockholder.
After determining the stockholders entitled to an appraisal, the Delaware
Chancery Court will appraise the fair value of their Shares exclusive of any
element of value arising from the accomplishment or expectation of the Merger,
together with a fair rate of interest, if any, to be paid upon the amount
determined to be the fair value. The Delaware Supreme Court has stated, among
other things, that "proof of value by any techniques or methods which are
generally considered acceptable in the financial community and otherwise
admissible in court" should be considered in an appraisal proceeding. The
Delaware Supreme Court stated that, in making this determination of fair value,
the Delaware Chancery Court must consider market value, asset value, dividends,
earnings prospects, the nature of the enterprise and any other facts which could
be ascertained as of the date of the Merger which shed any light on the future
prospects of Host Marriott. In addition, Delaware courts have decided that the
statutory appraisal remedy, depending on factual circumstances, may or may not
be a stockholder's exclusive remedy in connection with transactions such as the
Merger.
The costs of the appraisal proceeding may be determined by the Delaware
Chancery Court and taxed upon the parties as the Delaware Chancery Court deems
equitable in the circumstances. Upon application of a former stockholder, the
Delaware Chancery Court may also order that all or a portion of the expenses
incurred by any former stockholder in connection with an appraisal proceeding,
including, without limitation, reasonable attorney's fees and the fees and
expenses of experts utilized in the appraisal proceeding, be charged pro rata
against the value of all Shares entitled to an appraisal.
Any former stockholder who has duly demanded an appraisal in compliance
with Section 262 will not, from and after the effective time of the Merger, be
entitled to vote Shares subject to such demand for any purpose or be entitled to
the payment of dividends or other distributions on such Shares (except dividends
or other distributions, if any, payable to stockholders of record at a date
which is prior to the effective time of the Merger).
If any former stockholder who demands appraisal of his or her Shares under
Section 262 fails to perfect, or effectively withdraws or loses, his or her
right to appraisal, as provided in the DGCL, the Shares of such former
stockholder will be converted into the right to receive $15.75 in cash per
Share, without interest thereon.
You may wish to review the reports, proxy statements and other information
Host Marriott has filed with the Securities and Exchange Commission before you
decide whether to accept the merger consideration or exercise your appraisal
rights. You can read and copy any materials that Host Marriott files with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, DC
20549. You can obtain information about the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. Host Marriott files its reports and
proxy statements with the SEC electronically. The SEC maintains an Internet site
that contains reports, proxy statements and other information regarding Host
Marriott. The address of that site is http://www.sec.gov.
Sincerely,
HOST MARRIOTT SERVICES CORPORATION
4
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EXHIBIT A
SECTION 253(d) AND SECTION 262 OF THE GENERAL CORPORATION LAW OF THE STATE OF
DELAWARE
253 MERGER OF PARENT CORPORATION AND SUBSIDIARY OR SUBSIDIARIES -- (d) In
the event all of the stock of a subsidiary Delaware corporation party to a
merger effected under this section is not owned by the parent corporation
immediately prior to the merger, the stockholders of the subsidiary Delaware
corporation party to the merger shall have appraisal rights as set forth in
Section 262 of this title.
262 APPRAISAL RIGHTS. -- (a) Any stockholder of a corporation of this State
who holds shares of stock on the date of the making of a demand pursuant to
subsection (d) of this section with respect to such shares, who continuously
holds such shares through the effective date of the merger or consolidation, who
has otherwise complied with subsection (d) of this section and who has neither
voted in favor of the merger or consolidation nor consented thereto in writing
pursuant to sec.228 of this title shall be entitled to an appraisal by the Court
of Chancery of the fair value of the stockholders' shares of stock under the
circumstances described in subsections (b) and (c) of this section. As used in
this section, the word "stockholder" means a holder of record of stock in a
stock corporation and also a member of record of a nonstock corporation; the
words "stock" and "share" mean and include what is ordinarily meant by those
words and also membership or membership interest of a member of a nonstock
corporation; and the words "depository receipt" mean a receipt or other
instrument issued by a depository representing an interest in one or more
shares, or fractions thereof, solely of stock of a corporation, which stock is
deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to sec.251 (other than a merger effected pursuant to
sec.251(g) of this title), sec.252, sec.254, sec.257, sec.258, sec.263 or
sec.264 of this title:
(1) Provided, however, that no appraisal rights under this section
shall be available for the shares of any class or series of stock, which
stock, or depository receipts in respect thereof, at the record date fixed
to determine the stockholders entitled to receive notice of and to vote at
the meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require
for its approval the vote of the stockholders of the surviving corporation
as provided in subsection (f) of sec.251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required
by the terms of an agreement of merger or consolidation pursuant to
sec.sec.251, 252, 254, 257, 258, 263 and 264 of this title to accept for
such stock anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts
in respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the
merger or consolidation will be either listed on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 holders;
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c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this
paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under sec.253 of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall
be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights
are provided under this section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to
the meeting, shall notify each of its stockholders who was such on the
record date for such meeting with respect to shares for which appraisal
rights are available pursuant to subsections (b) or (c) hereof that
appraisal rights are available for any or all of the shares of the
constituent corporations, and shall include in such notice a copy of this
section. Each stockholder electing to demand the appraisal of such
stockholder's shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for appraisal of
such stockholder's shares. Such demand will be sufficient if it reasonably
informs the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of such stockholder's
shares. A proxy or vote against the merger or consolidation shall not
constitute such a demand. A stockholder electing to take such action must
do so by a separate written demand as herein provided. Within 10 days after
the effective date of such merger or consolidation, the surviving or
resulting corporation shall notify each stockholder of each constituent
corporation who has complied with this subsection and has not voted in
favor of or consented to the merger or consolidation of the date that the
merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to sec.228 or
sec.253 of this title, each constituent corporation, either before the
effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights
of the approval of the merger or consolidation and that appraisal rights
are available for any or all shares of such class or series of stock of
such constituent corporation, and shall include in such notice a copy of
this section; provided that, if the notice is given on or after the
effective date of the merger or consolidation, such notice shall be given
by the surviving or resulting corporation to all such holders of any class
or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective
date of the merger or consolidation, shall, also notify such stockholders
of the effective date of the merger or consolidation. Any stockholder
entitled to appraisal rights may, within 20 days after the date of mailing
of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation, either
(i) each such constituent corporation shall send a second notice before
2
<PAGE> 7
the effective date of the merger or consolidation notifying each of the
holders of any class or series of stock of such constituent corporation
that are entitled to appraisal rights of the effective date of the merger
or consolidation or (ii) the surviving or resulting corporation shall send
such a second notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is sent more
than 20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holder's shares in accordance with
this subsection. An affidavit of the secretary or assistant secretary or of
the transfer agent of the corporation that is required to give either
notice that such notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be
not more than 10 days prior to the date the notice is given, provided, that
if the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the
day on which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise entitled to
appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw such stockholder's demand for appraisal and to accept the terms offered
upon the merger or consolidation. Within 120 days after the effective date of
the merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after such stockholder's written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitle to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of
3
<PAGE> 8
the pendency of the appraisal proceedings; and if any stockholder fails to
comply with such direction, the Court may dismiss the proceedings as to such
stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted
such stockholder's certificates of stock to the Register in Chancery, if such is
required, may participate fully in all proceedings until it is finally
determined that such stockholder is not entitled to appraisal rights under this
section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of such stockholder's
demand for an appraisal and an acceptance of the merger or consolidation, either
within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the
Court, and such approval may be conditioned upon such terms as the Court deems
just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
4
<PAGE> 1
LETTER OF TRANSMITTAL
TO ACCOMPANY CERTIFICATES FORMERLY REPRESENTING SHARES OF COMMON STOCK,
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS) NO PAR VALUE PER
SHARE,
OF
HOST MARRIOTT SERVICES CORPORATION
SURRENDERED FOR CASH PAYMENT OF $15.75 PER SHARE DUE TO THE MERGER
OF AUTOGRILL ACQUISITION CO. INTO HOST MARRIOTT SERVICES CORPORATION
This Letter of Transmittal should be completed, signed and submitted,
together with your certificate(s) formerly representing shares of common stock
of Host Marriott Services Corporation to:
THE BANK OF NEW YORK (THE "PAYING AGENT")
<TABLE>
<S> <C> <C>
BY MAIL: FACSIMILE TRANSMISSION: BY HAND OR OVERNIGHT DELIVERY:
Tender & Exchange Department (for Eligible Institutions Only) Tender & Exchange Department
P.O. Box 11248 (212) 815-6213 101 Barclay Street
Church Street Station Receive and Delivery Window
New York, New York 10286-1248 For Confirmation Telephone: New York, New York 10286
(800) 507-9357
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE
WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS INSTRUMENT WHERE
INDICATED BELOW AND COMPLETE THE SUBSTITUTE FORM W-9 PROVIDED BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned acknowledges receipt of the Notice of Merger of Autogrill
Acquisition Co., a Delaware corporation (the "Purchaser") with and into Host
Marriott Services Corporation, a Delaware corporation (the "Company"), and
encloses herewith and surrenders the following described certificate(s) formerly
representing represented shares of common stock, no par value per share (the
"Common Stock"), including the associated series A preferred stock purchase
rights (the "Rights"; the Common Stock and the Rights are collectively hereafter
referred to as the "Shares") issued pursuant to the Rights Agreement dated as of
December 22, 1995 by and between the Company and First Chicago Trust Company of
New York, as Rights Agent (as the same may be amended, the "Rights Agreement"),
of the Company ("Shares"), for purposes of exchanging each such Share for $15.75
in cash, without interest.
- --------------------------------------------------------------------------------
DESCRIPTION OF SURRENDERED CERTIFICATES
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE(S) SURRENDERED
(PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST IF NECESSARY)
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES
CERTIFICATE REPRESENTED BY NUMBER OF SHARES
NUMBER(S) CERTIFICATE(S) SURRENDERED
<S> <C> <C> <C>
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
Total Shares
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: SIGNATURE(S) MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
[ ] CHECK HERE IF YOU CANNOT LOCATE YOUR CERTIFICATE(S) AND REQUIRE ASSISTANCE
IN REPLACING THEM. SEE INSTRUCTION 8.
<PAGE> 2
Ladies and Gentlemen:
In connection with the merger (the "Merger") of the Purchaser with and into
the Company, the undersigned hereby surrenders the certificates listed above,
which formerly represented Shares of the Company, in order to receive payment of
$15.75 in cash per Share, without interest, subject to applicable withholding
taxes, as a result of the Merger. No interest will accrue or be paid on the cash
payable upon the surrender of the certificates. BY DELIVERY OF THIS LETTER OF
TRANSMITTAL TO THE PAYING AGENT, THE UNDERSIGNED HEREBY WAIVES HIS RIGHT TO
DEMAND APPRAISAL OF THE FAIR VALUE OF THE SHARES PURSUANT TO SECTION 262 OF THE
DELAWARE GENERAL CORPORATION LAW AND WITHDRAWS ALL WRITTEN OBJECTIONS TO THE
MERGER AND/OR DEMANDS FOR APPRAISAL, IF ANY, WITH RESPECT TO THE SHARES OWNED BY
THE UNDERSIGNED.
The undersigned irrevocably appoints the Paying Agent, its officers and its
designees, and each of them, the attorneys-in-fact of the undersigned, with full
power of substitution, with respect to the Shares formerly represented by the
certificates listed above, to (a) deliver those certificates for cancellation
and (b) exercise any rights the undersigned may have with regard to the Shares
which were formerly represented by those certificates.
The undersigned represents and warrants that the undersigned has full power
and authority to surrender the certificates listed above and to direct the
manner in which payment is to be made as a result of the Merger with respect to
the Shares formerly represented by those certificates. The undersigned, upon
request, will execute and deliver any additional documents deemed by the Paying
Agent to be necessary or desirable to complete the surrender of the certificates
listed above in order to receive payment as a result of the Merger.
The authority conferred in this Letter of Transmittal will not be affected
by, and will survive, the death or incapacity of the undersigned, and any
obligation of the undersigned under this Letter of Transmittal or otherwise
resulting from the surrender of certificates to which this Letter of Transmittal
relates will be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned. The surrender made
by this Letter of Transmittal is irrevocable.
All questions as to validity, form and eligibility of any surrender of
certificate(s) hereunder will be determined by the Company (which may delegate
power in whole or in part to the Paying Agent) and such determination shall be
final and binding. The undersigned understands that payment for surrendered
certificate(s) will be made as promptly as practicable after surrender of
certificate(s) is made in acceptable form.
Unless otherwise indicated in the box below captioned "Special Payment
Instructions," please issue the check with regard to the Shares formerly
represented by the certificates which are being surrendered to the undersigned.
Similarly, unless otherwise indicated in the box below captioned "Special
Delivery Instructions," please mail the check for that sum to the undersigned at
the address shown below the undersigned's signature. If both the Special
Delivery Instructions and the Special Payment Instructions are completed, please
issue the check for the sum due as a result of the Merger in the name of, and
deliver the check to the person or persons indicated.
2
<PAGE> 3
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if the check for the sum due as a result of the Merger
with regard to the Shares formerly represented by the certificates listed above
is to be issued in the name of someone other than the undersigned.
Issue [ ] Check
Name
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
- --------------------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if the check for the sum due as a result of the Merger
with regard to the Shares formerly represented by the certificates listed above
is to be sent to someone other than the undersigned, or to the undersigned at an
address other than that shown after the undersigned's signature below.
Mail [ ] Check
Name
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
3
<PAGE> 4
SIGN HERE
(COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
- --------------------------------------------------------------------------------
SIGNATURE(S) OF OWNER(S)
Dated:
- --------------------------- , 1999
(Must be signed by registered holder(s) exactly as name(s) appear(s) on stock
certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by certificates and documents transmitted with this
Letter of Transmittal. If signature is by trustees, executors, administrators,
guardians, attorneys-at-fact, agents, officers of corporations or others acting
in a fiduciary or representative capacity, please provide the information
described in Instruction 4.)
Name(s) ------------------------------------------------------------------------
(PLEASE PRINT)
Capacity (full title)
----------------------------------------------------------------
Address ------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number--------------------------------------------------
Tax Identification or Social Security No.
------------------------------------------------
(COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 4)
Authorized Signature
--------------------------------------------------------------
Name --------------------------------------------------------------------------
Title---------------------------------------------------------------------------
Name of Firm
---------------------------------------------------------------------
Address ------------------------------------------------------------------------
Area Code and Telephone Number
---------------------------------------------------
Dated:
- --------------------------- , 1999
4
<PAGE> 5
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (i) if this Letter of Transmittal is signed by the
registered holder of the Shares represented by the certificates surrendered with
it unless the holder has completed either the box entitled "Special Delivery
Instructions" or the box entitled "Special Payment Instructions" on the reverse
of this Letter of Transmittal or (ii) if those certificates are surrendered for
the account of a member firm of a registered national securities exchange or a
member of the National Association of Securities Dealers, Inc. or by a
commercial bank or trust company which has an office or correspondent in the
United States (collectively, "Eligible Institutions"). In all other cases, all
signatures on this Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instruction 4.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES. The method of
delivery of this Letter of Transmittal, the certificates for Shares and all
other required documents, is at the option and risk of the surrendering
stockholder and, except as otherwise provided in this Instruction 2, the
delivery will be deemed made only when actually received by the Paying Agent. If
delivery is by mail, registered mail with return receipt requested, properly
insured, is recommended.
No alternative, conditional or contingent surrenders will be accepted and
no fractional Shares will be purchased. All surrendering stockholders, by
execution of this Letter of Transmittal (or a facsimile of it), waive any right
to receive any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided in this Letter of Transmittal
is inadequate, the certificate numbers and numbers of Shares they represented
should be listed on a separate signed schedule which should be attached to this
Letter of Transmittal.
4. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
formerly represented by the certificates being surrendered, the signature(s)
must correspond exactly with the name(s) as written on the face of the
certificate(s), without any alteration, enlargement or change whatsoever.
If any of the Shares formerly represented by the certificates being
surrendered are owned of record by two or more joint owners, all the owners must
sign this Letter of Transmittal.
IF SURRENDERED SHARES FORMERLY REPRESENTED BY THE CERTIFICATES BEING
SURRENDERED ARE REGISTERED IN DIFFERENT NAMES ON DIFFERENT CERTIFICATES, IT WILL
BE NECESSARY TO COMPLETE, SIGN AND SUBMIT AS MANY SEPARATE LETTERS OF
TRANSMITTAL AS THERE ARE DIFFERENT REGISTRATIONS ON CERTIFICATES.
If this Letter of Transmittal or any certificates or stock powers are
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, that person should so indicate when signing, and may be required to
submit evidence satisfactory to the Company of the person's authority so to act.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares formerly represented by the certificates being surrendered, no
endorsements of certificates or separate stock powers are required, unless
payment or certificates for Shares which are not surrendered or accepted are to
be issued to a person other than the registered owner(s), in which case,
endorsements of certificates or separate stock powers are required and
signatures on those certificates or stock powers must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Shares formerly represented by the certificates being
surrendered, the certificates must be endorsed or accompanied by appropriate
stock powers, in either case signed exactly as the name(s) of the registered
owner(s) appear on the certificates. Signatures on the certificates or stock
powers must be guaranteed by an Eligible Institution.
5. STOCK TRANSFER TAXES. Except as set forth in this Instruction 5, the
Company will pay or cause to be paid any stock transfer taxes with respect to
the cancellation of Shares as a result of the Merger. If payment is to be made
to any person other than the registered holder, or if surrendered certificates
are registered in the
5
<PAGE> 6
name of anyone other than the person(s) signing this Letter of Transmittal, the
amount of any stock transfer taxes payable on account of the transfer to another
person (whether imposed on the registered holder or on the other person) will be
deducted from the Merger payment unless satisfactory evidence of the payment of,
or an exemption from the need to pay, stock transfer taxes is submitted.
Except as provided in this Instruction 5, it will not be necessary for
transfer tax stamps to be affixed to the certificates submitted with this Letter
of Transmittal.
6. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued
in the name of a person other than the signer of this Letter of Transmittal, or
if a check is to be sent to someone other than the signer of this Letter of
Transmittal or to an address other than the signer's address shown above, the
appropriate boxes on this Letter of Transmittal must be completed.
7. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to, or additional copies of this Letter of Transmittal may be
obtained from, the Paying Agent at the locations and telephone numbers set forth
below.
8. LOST OR DESTROYED CERTIFICATES. If any certificate has been lost or
destroyed, the stockholder should promptly notify the Paying Agent. The
stockholder will then be instructed as to the steps that must be taken in order
to replace the certificate(s). This Letter of Transmittal and related documents
cannot be processed until the procedures for replacing lost or destroyed
certificates have been followed.
9. SUBSTITUTE FORM W-9. The surrendering former stockholder is required to
provide the Paying Agent with a correct Taxpayer Identification Number ("TIN")
on the Substitute Form W-9 which is provided under "Important Tax Information"
below, and to indicate that the former stockholder is not subject to backup
withholding by checking the box in Part 2 of the Substitute Form W-9. Failure to
provide the information on the Substitute Form W-9 may subject the surrendering
former stockholder to 31% Federal income tax withholding from the Merger
payment. The box in Part 3 of the Substitute Form W-9 may be checked if the
surrendering former stockholder has not been issued a TIN and has applied for a
number or intends to apply for a number in the near future. If the box in Part 3
is checked, the stockholder or other payee must also complete the Certificate of
Awaiting Taxpayer Identification Number below in order to avoid backup
withholding. If the box in Part 3 is checked and the Paying Agent is not
provided with a TIN within 60 days, the Paying Agent will withhold 31% from any
Merger payments to be made after expiration of that 60 day period until a TIN is
provided to the Paying Agent.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
(DO NOT WRITE IN THE SPACES BELOW)
Date Received --------------- Accepted by --------------- Checked by
---------------
------------------------------------------------------------------------------------------------------------
CERTIFICATES SHARES SHARES AMOUNT OF SHARES CERTIFICATE
SURRENDERED SURRENDERED ACCEPTED CHECK NO. CHECK RETURNED NO. BLOCK
NO.
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
Delivery Prepared by --------------- Checked by --------------- Date ---------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE> 7
IMPORTANT TAX INFORMATION
Under Federal income tax law, a former stockholder who is entitled to a
payment as a result of the Merger is required to provide the Paying Agent with
the former stockholder's correct TIN on Substitute Form W-9 below. If the former
stockholder is an individual, the TIN is his or her social security number. If
the Paying Agent is not provided with the correct TIN, the stockholder may be
subject, among other things, to penalties imposed by the Internal Revenue
Service. In addition, payments that are made to the former stockholder may be
subject to backup withholding.
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, that individual must submit a Form W-8, signed under penalties of
perjury, attesting to the individual's exempt status. A Form W-8 can be obtained
from the Paying Agent. See the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional instructions.
If backup withholding applies, the Paying Agent 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.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on Merger payments the former stockholder is
required to notify the Paying Agent of the former stockholder's correct TIN by
completing the form below certifying that the TIN provided on the Substitute
Form W-9 is correct (or that the stockholder is awaiting a TIN).
WHAT NUMBER TO GIVE THE PAYING AGENT
The stockholder is required to give the Paying Agent the social security
number or employer identification number of the most recent record owner of the
Shares. If the Shares being surrendered 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
guidelines on which number to report.
7
<PAGE> 8
<TABLE>
<S> <C> <C>
- -------------------------------------------------------------------------------------------------------------
PAYER'S NAME: THE BANK OF NEW YORK
- -------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Number
OR
--------------------
Employer
Identification Number
-----------------------------------------------------------------------
PART 2 -- Check the box if you are NOT subject to backup withholding
DEPARTMENT OF THE TREASURY, INTERNAL under the provisions of Section 3406(a)(1)(C) of the Internal Revenue
REVENUE SERVICE Code because (1) you are exempt from backup withholding, or (2) you
have not been notified that you are subject to backup withholding as a
result of failure to report all interest or dividends or (3) the
Internal Revenue Service has notified you that you are no longer
subject to backup withholding. [ ]
-----------------------------------------------------------------------
PAYER'S REQUEST FOR CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT THE
TAXPAYER IDENTIFICATION INFORMATION PROVIDED ON THIS FORM IS TRUE, CORRECT AND COMPLETE.
NUMBER (TIN)
SIGNATURE -------------------------- DATE----------------------
- -------------------------------------------------------------------------------------------------------------
<CAPTION>
<S> <C>
PAYER'S NAME: THE BANK
OF NEW YORK
- ------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Number
OR
--------------------
Employer
Identification Number
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY, INTERNAL Section 3406(a)(1)(C)
REVENUE SERVICE of the Internal
Revenue Code because
(1) you are exempt
from backup
withholding, or (2)
you have not been
notified that you are
subject to backup
withholding as a
result of failure to
report all interest
or dividends or (3)
the Internal Revenue
-----------------------------------------------------------------------
PAYER'S REQUEST FOR PART 3 --
TAXPAYER IDENTIFICATION
NUMBER (TIN)
Awaiting TIN [ ]
- -------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU AS A RESULT OF THE MERGER. 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 WROTE "APPLIED FOR" IN
PART I OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (1) I have mailed or delivered an application
to receive a taxpayer identification number to the 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
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.
<TABLE>
<S> <C>
SIGNATURE DATE
</TABLE>
8
