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
Date of Report (Date of earliest event reported): January 25, 2000
99 CENTS ONLY STORES
(Exact Name of Registrant as Specified in Charter)
California 1-11735 2411605
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
4000 East Union Pacific Avenue
City of Commerce, CA 90023
(Address of Principal Executive Offices)
(323) 980-8145
(Registrant's Telephone Number)
<PAGE>
Item 5. OTHER EVENTS.
On January 25, 2000, 99 Cents Only Stores Merger Corporation, a Minnesota
corporation ("Merger Company"), a wholly owned subsidiary of 99 Cents Only
Stores, a California corporation (the "Company"), merged with Universal
International, Inc., a Minnesota corporation ("Universal"). Immediately prior to
the effective time of the merger, the Company owned more than 90% of the
outstanding shares of Universal of common stock (the "Shares").
Upon effectiveness of and as a result of the merger, (i) the separate
corporate existence of Merger Company terminated and the Universal, as the
surviving corporation of the merger, became a wholly owned subsidiary of the
Company; and (ii) each of the Shares outstanding prior to the merger was,
concurrently with the effectiveness of the merger, automatically converted into
the right to receive $ 2.32 per Share in cash, without interest, subject to the
qualifications set forth in the Notice of Merger mailed to record holders of
Common Shares of Universal immediately prior to the effective date of the
merger, attached hereto as EXHIBIT 99.1.
Page 2
<PAGE>
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.
February 15, 2000 99 CENTS ONLY STORES
By: /S/ ANDREW FARINA
-----------------------------------
Andy Farina
Chief Financial Officer
Page 3
<PAGE>
EXHIBIT INDEX
EXHIBITS
99.1 Notice of Merger to Universal International, Inc. shareholders dated
January 25, 2000.
Page 4
Exhibit 99.1
UNIVERSAL INTERNATIONAL, INC.
5000 WINNETKA AVENUE NORTH
NEW HOPE, MINNESOTA 55428
NOTICE OF MERGER
OF
99 CENTS ONLY STORES MERGER CORPORATION
WITH AND INTO
UNIVERSAL INTERNATIONAL, INC.,
AND
AVAILABILITY OF DISSENTERS' RIGHTS
To the Persons Who Were Record Holders
of Common Shares of Universal
International, Inc., Immediately Prior
to the Effective Date of the Merger
Referred to Below:
NOTICE IS HEREBY GIVEN pursuant to Section 302A.473 and 302A.621 of the
Minnesota Business Corporation Act (the "MBCA") that the merger (the "Merger")
of 99 Cents Only Stores Merger Corporation, a Minnesota corporation ("Merger
Subsidiary"), with and into Universal International, Inc., a Minnesota
corporation (the "Company"), will become effective on or about January 25, 2000
(the "Effective Time"). Merger Subsidiary is a wholly owned subsidiary of 99
Cents Only Stores, a California corporation ("Parent"). Immediately prior to the
Effective Time, Parent owned more than 90% of the outstanding common shares, par
value $0.05 per share, of the Company (the "Shares"). The Shares constituted the
only outstanding class of the Company's capital stock. Accordingly, under
applicable Minnesota law, no action will be required by Shareholders of the
Company other than Parent for the Merger to become effective. At the Effective
Time, the separate corporate existence of Merger Subsidiary will terminate and
the Company, as the surviving corporation in the Merger (sometimes referred to
herein as the "Surviving Corporation"), will become a wholly owned subsidiary of
Parent.
<PAGE>
The Merger will be effected pursuant to a Plan of Merger (the "Plan of
Merger") in the form of resolutions adopted by the Board of Directors of the
Parent. Under the terms of the Plan of Merger and the applicable provisions of
the MBCA, the Shares will cease to be outstanding at the Effective Time.
Registered holders of share certificates formerly representing the Shares (the
"Certificates(s)") are herein referred to as "Certificate Holders." Further,
under the terms of the Plan of Merger and the applicable provisions of the MBCA,
at the Effective Time, the Certificates (other than Certificates representing
Shares held by Parent or any direct or indirect wholly owned subsidiary of
Parent, which will be cancelled) will represent solely (i) the right to receive
$2.32 per Share in cash, without interest, upon surrender of such
Certificate(s), or (ii) a right to dissent from the Merger and obtain the fair
value in cash of such Shares under the MBCA (see below). Each share of common
stock of Merger Subsidiary issued and outstanding immediately prior to the
Effective Time will be converted into and exchanged for one share of common
stock, $0.05 par value, of the Surviving Corporation, which in accordance with
the Plan of Merger, will constitute all of the issued and outstanding shares of
capital stock of the Surviving Corporation immediately after the Effective Time.
Pursuant to Section 302A.621 of the MBCA, a copy of the Plan of Merger is
attached hereto as Annex I.
TO RECEIVE PAYMENT OF THE $2.32 PER SHARE IN CASH, WITHOUT INTEREST,
PAYABLE PURSUANT TO THE MERGER, CERTIFICATE HOLDERS MUST COMPLETE THE ENCLOSED
LETTER OF TRANSMITTAL AND MUST PRESENT THE LETTER OF TRANSMITTAL AND THEIR
CERTIFICATES(S) TO AMERICAN STOCK TRANSFER & TRUST COMPANY, AS PAYING AGENT, IN
THE MANNER DESCRIBED BELOW AND IN THE LETTER OF TRANSMITTAL.
In addition to the information set forth herein and in the accompanying
Letter of Transmittal, further information regarding the Company can be found in
the Company's reports filed with the Securities and Exchange Commission (the
"Commission"). These reports include the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, the Company's Quarterly Report on
Form 10-Q for the quarters ended March 31, 1998 and June 30, 1998. These are the
last reports filed by the Company while it was still a public company. In
addition to the Company's filings, information regarding the Company is also
part of the filings of Parent, including the Parent's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998 and the Parent's Quarterly Reports
on Form 10-Q for the quarters ended March 31, 1999, June 30, 1999 and September
30, 1999. These reports may be inspected at the Commission's office at 450 Fifth
Street, N.W., Washington, D.C. 20549, and should also be available for
inspection and copying at the regional offices of the Commission located at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661;
and 7 World Trade Center, Suite 1300 New York, New York, 10048. Copies may be
obtained upon payment of the Commission's prescribed fees by writing to its
principal office at 450 Fifth Street, N.W., Washington D.C. 20549, or through
the Company's website (HTTP://WWW.SEC.GOV).
The instructions that appear in the Letter of Transmittal should be read
carefully and followed, and all necessary blanks filled in. Unless you desire to
perfect dissenter's rights for your Shares under the MBCA, it is suggested that
you promptly send your Certificate(s) with the signed and completed Letter of
Transmittal, together with any necessary supporting papers, in the enclosed
envelope to the Paying Agent. If such delivery is by mail, registered or
certified mail with return receipt requested, properly insured is recommended.
Once such a Certificate is surrendered for exchange to the Paying Agent along
with a properly completed Letter of Transmittal, the holder
EX-99.1 - 2
<PAGE>
thereof shall be paid as soon as practicable $2.32 per Share in cash (the
"Merger Consideration"), without interest thereon, for those Shares evidenced by
such Certificates that are held by such holder as of the Effective Time. Such
payment will be made by check mailed to the address specified by such
Certificate Holder in the Letter of Transmittal. In September 1998, Parent
completed an exchange offer of one share of Parent's common stock for every 16
shares of the Company's common stock. The $2.32 per Share in cash represents the
amount that a holder would have received in Parent common stock (based upon the
market price of the Parent common stock at the close of business on September
16, 1998) for each share of Company common stock if the holder had tendered the
holder's shares of Company common stock in the exchange offer. As of September
30, 1999, the book value per share of Company common stock was $0.48.
At the Effective Time, the Share transfer books of the Company will be
closed and no further transfer of Shares can be made. At any time following one
year after the Effective Time, the Paying Agent shall deliver to Parent all
cash, Certificates and other documents relating to the Plan of Merger and the
transactions contemplated thereby. Thereafter, Certificate Holders (other than
Certificate Holders who have demanded and perfected their dissenters' rights)
may surrender their Certificates to Parent and (subject to applicable abandoned
property, escheat and similar laws) receive in consideration thereof $2.32 per
Share in cash, without interest.
Sections 302A.471 and 302A.473 of the MBCA entitle any Shareholder of the
Company, in lieu of receiving the cash to which such Shareholder would otherwise
be entitled pursuant to the Plan of Merger, to dissent from the Merger and
obtain payment in cash for the "fair value" of the Certificates held by such
Shareholder. Any Shareholder contemplating the exercise of these dissenters'
rights should review carefully the provisions of Section 302A.471 and 302A.473
of the MBCA (copies of which are attached as Annex II hereto), particularly the
specific procedural steps required to perfect such rights. Such rights will be
lost if the procedural requirements of Section 302A.473 of the MBCA are not
fully and precisely satisfied.
Set forth below (to be read in conjunction with the full text of Section
302A.473 of the MBCA) is a brief description of the procedures relating to the
exercise of dissenters' rights. The following description does not purport to be
a complete statement of the provisions of Section 302A.473 of the MBCA and is
qualified in its entirely by reference thereto.
A Shareholder who wishes to exercise dissenters' rights (a "Dissenter")
under Sections 302A.471 and 302A.473 of the MBCA must send the following
materials to the Company at 4000 Union Pacific Avenue, City of Commerce,
California 90023, Attention: Chief Financial Officer.
1. The Dissenter's Certificates duly endorsed or accompanied by a separate
assignment, and
2. A Dissenter's Demand for Payment properly completed and executed. A copy
of a Dissenters' Demand for Payment which may be used for this purpose is
enclosed.
The stock certificates and properly completed and executed Dissenters'
Demand for Payment must be received by the Company no later than February 24,
2000. A Shareholder who fails to make demand for payment and to deposit
certificates by February 24, 2000 will not be a Dissenter and will lose the
right to demand the fair value of the Certificates under Sections
EX-99.1 - 3
<PAGE>
302A.471, 302A.473 and 302A.621 of the MBCA but will be entitled to the Merger
Consideration payable under the Plan of Merger.
Except as provided below, if demand for payment and deposit of stock
certificates is duly made by a Dissenter with the Company in the manner herein
described, the Company will pay the Dissenter an amount which the Company
estimates to be the fair value of the Dissenter's Certificates with interest, if
any. For the purpose of Dissenter's rights under Sections 302A.471, 302A.473 and
302A.621 of the MBCA, "fair value" means the value of the Certificates
immediately before the effective date of the Merger and "interest" means
interest commencing five days after the Effective Time up to and including the
date of payment, calculated at the rate provided in Minnesota Statutes Section
549.09 (presently 5.00% per year). The payment must be accompanied by (i) the
Company's closing balance sheet and statement of income for a fiscal year ending
not more than 16 months before the Effective Time and the Company's latest
available interim financial statements, (ii) an estimate by the Company of the
fair value of the Certificates and a brief description of the method used by the
Company to reach such estimate, and (iii) a copy of Section 302A.471 and
302A.473 of the MBCA, and a brief description of the procedure to be followed in
demanding supplemental payment. If the Dissenter believes the payment received
from the Company is less than the fair value of the Certificates plus interest,
such Dissenter may give written notice to the Company of his or her own estimate
of the fair value of the Certificates, plus interest, within 30 days after the
Company's mailing of the Company's remittance. If the Dissenter fails to give
written notice of such estimate to the Company within the 30-day time period,
such Dissenter will be entitled only to the amount remitted by the Company.
The Company may withhold such remittance with respect to Certificates for
which the Dissenter demanding payment was not the registered owner (or the
person on whose behalf such Dissenter acts was not the beneficial owner) as of
the first public announcement date of the Merger (the "Public Announcement
Date"). As to each such Dissenter who has validly demanded payment but with
respect to which the Company plans to withhold remittance, the Company will mail
to the Dissenter the materials described in the preceding paragraph, a statement
of the reason for withholding the remittance, and an offer to pay to the
Dissenter the amount listed in the materials, plus interest, if any, if the
Dissenter agrees to accept the amount in full satisfaction. If such Dissenter
believes that the Company's offer is for less than the fair value of the
Certificates plus interest, such Dissenter must give written notice to the
Company of his or her own estimate of the fair value of the Certificates, plus
interest and demand payment of this amount within 30 days after the mailing of
the Company's offer. If the Dissenter fails to give written notice of such
estimate to the Company within the 30-day time period, such Dissenter will be
entitled only to the amount offered by the Company.
If the Company and the Dissenter (including both a Dissenter who purchases
Shares on or prior to the Public Announcement Date and a Dissenter who purchased
Shares after the Public Announcement Date who have complied with their
respective demand requirements) cannot settle the Dissenter's demand within 60
days after the Company receives the Dissenter's estimate for the fair value of
his or her Certificates, then the Company will file a petition in a court of
competent jurisdiction in Hennepin County, Minnesota, requesting that the court
determine the fair value of the Company's Certificates plus interest. All
Dissenters whose demands are not settled within the applicable 60-day settlement
period will be made parties to this proceeding.
EX-99.1 - 4
<PAGE>
The court will then determine whether each Dissenter in question has fully
complied with the provisions of Section 302A.473, and for all Dissenters who
have fully complied and not forfeited statutory dissenters' rights, will
determine the fair value of the Certificates, taking into account any and all
factors the court finds relevant (including, without limitation, the
recommendation of any appraisers which may have been appointed by the court),
computed by any method or combination of methods that the court, in its
discretion, sees fit to use, whether or not used by the Company or a Dissenter.
The per share fair value of the Certificates as determined by the court is
binding on all Shareholders, wherever located, and may be less than, equal to or
greater than the Merger Consideration per share to be paid in the Merger. Each
Dissenter is entitled to judgment in cash for the amount by which the fair value
of the Certificates as determined by the court, plus interest, exceeds the
amount, if any, previously remitted by the Company to the Dissenter. However,
under the statute, Dissenters are not liable to the Company for the amount, if
any, by which payments remitted by the Company to the Dissenters exceed the fair
value of such Certificates determined by the court, plus interest. The costs and
expenses of this court proceeding will be assessed against the Company, except
that the court may assess part or all of those costs and expenses against a
Dissenter whose action in demanding payment is found to be arbitrary, vexatious
or not in good faith.
If the court finds that the Company has failed to comply substantially with
Section 302A.473, the court also may assess against the Company such fees and
expenses, if any, of attorneys and experts as the court deems equitable. Such
fees and expenses may also be assessed against any person who has acted
arbitrarily, vexatiously or not in good faith in bringing the proceeding, and
may be awarded to a party injured by those actions.
Under Section 302A.471, Subd. 2 of the MBCA, a Shareholder of the Company
may not assert dissenters' rights with respect to less than all of the Shares
registered in the Shareholder's name, unless the Shareholder dissents with
respect to all Shares beneficially owned by another person and discloses the
name and address of such other person. Under Section 302A.471, Subd. 2,
beneficial owners of Certificates who desire to exercise statutory dissenters'
rights themselves must obtain and submit the registered owner's written consent
at or before the time they deposit their Certificates and demand for payment
with the Company.
Under Section 302A.471, Subd. 4 of the MBCA, a Shareholder of the Company
has no right at law or equity to set aside the adoption of the Plan or Merger or
the consummation of the Merger, except if such adoption or consummation is
fraudulent with respect to such Shareholder of the Company.
Additional copies of this Notice of Merger, the related Letter of
Transmittal, and the enclosed Dissenter's Demand for Payment may be obtained
from the Paying Agent at 40 Wall Street, New York, New York 10005, Attention:
Reorg. Department.
UNIVERSAL INTERNATIONAL, INC.
January 25, 2000
EX-99.1 - 5
<PAGE>
TO BE COMPLETED AND RETURNED ONLY IF STATUTORY
DISSENTERS' RIGHTS ARE BEING EXERCISED
DISSENTERS'
DEMAND FOR PAYMENT
Universal International, Inc.
4000 Union Pacific Avenue
City of Commerce, California 90023
Attention: Chief Financial Officer
The undersigned, pursuant to Minnesota Statutes Section 302A.473, Subd.
4(b), hereby deposits with Universal International, Inc., (the "Company"), and
demands payment for, the shares of common stock, $.05 par value, of the Company
represented by the certificates listed below:
DESCRIPTION OF SHARES DEPOSITED
(To be Completed by the Shareholder)
Certificate Number of Date Shares
No. Shares Acquired
------------- ------------ -------------
(ATTACH A SEPARATE SHEET IF ADDITIONAL SPACE IS NECESSARY AND CHECK HERE ( )
The undersigned hereby represents and warrants to the Company that (i) the
undersigned has full authority to surrender the above-described shares and (ii)
the undersigned, or the beneficial owner on whose behalf the undersigned is
submitting this Demand for Payment, acquired the shares on the date(s) set forth
above.
All authority conferred hereby shall survive the death or incapacity of the
undersigned, and all obligations of the undersigned hereunder shall be binding
upon the undersigned's heirs, representatives and assigns.
Very truly yours,
------------------------------------
(Signature of Registered Holders(s))
Must be signed by registered holder
(s) exactly as name appears on stock
certificate(s) or by person(s)
authorized to become registered
holder(s) by certificates and
documents transmitted.
Print Name and Address
------------------------------------
------------------------------------
------------------------------------
Dated: _______________________, 2000
<PAGE>
LETTER OF TRANSMITTAL
TO ACCOMPANY CERTIFICATE(S) FORMERLY REPRESENTING COMMON SHARES
OF
UNIVERSAL INTERNATIONAL, INC.
SURRENDERED FOR CASH PAYMENT
OF $2.32 PER SHARE
PURSUANT TO THE MERGER
OF
99 CENTS ONLY STORES MERGER CORPORATION
A DIRECT, WHOLLY OWNED SUBSIDIARY OF
99 CENTS ONLY STORES
INTO
UNIVERSAL INTERNATIONAL, INC.
- --------------------------------------------------------------------------------
The Paying Agent for the Merger is:
American Stock Transfer & Trust Company
BY MAIL TO: BY HAND/OVERNIGHT COURIER:
American Stock Transfer American Stock Transfer
& Trust Company & Trust Company
40 Wall Street 40 Wall Street-46th Floor
New York, New York 10005 New York, New York 10005
For Help Completing this Letter of
Transmittal, call: For other questions, call:
1-800-937-5449 1-800-937-5449
- --------------------------------------------------------------------------------
DESCRIPTION OF SHARE(S) ENCLOSED
- --------------------------------------------------------------------------------
Name(s) and Address(es) of Certificate
Holder(s) Share Certificates Enclosed
(Please fill in, if blank, exactly as (Attach additional signed list if
name(s) appear(s) on Share necessary)
Certificate(s)) (SEE INSTRUCTION 3)
- --------------------------------------------------------------------------------
Total Number
of Shares
Represented
Share Certificate by Share
Number(s) Certificate(s)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total Shares:
- --------------------------------------------------------------------------------
[ ] CHECK HERE IF CERTIFICATES HAVE BEEN LOST OR MUTILATED. SEE SECTION 9.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
FOR OFFICE USE ONLY
Debit Shares___ Partial_______ SBL/LT________ Alt Payee____ Spec Del_____
____ Approved______ Input_________ Audit________ Mailed_______
- --------------------------------------------------------------------------------
EX-99.1 (DISSENT) - 2
<PAGE>
THIS LETTER OF TRANSMITTAL SHOULD BE COMPLETED, SIGNED AND SUBMITTED,
TOGETHER WITH YOUR CERTIFICATE(S) FORMERLY REPRESENTING ONE OR MORE COMMON
SHARES OF UNIVERSAL INTERNATIONAL, INC., TO ONE OF THE ADDRESSES SET FORTH
ABOVE. DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
IF CERTIFICATES ARE REGISTERED IN DIFFERENT NAMES, A SEPARATE LETTER
OF TRANSMITTAL MUST BE SUBMITTED FOR EACH DIFFERENT REGISTERED OWNER. SEE
INSTRUCTIONS 4 AND 6.
PLEASE READ THE FOLLOWING AND THE
ACCOMPANYING INSTRUCTIONS CAREFULLY
- -------------------------------------- -------------------------------------
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 5 AND 6) (SEE INSTRUCTIONS 1, 4, 5 AND 6)
To be completed ONLY if the ......To be completed ONLY if the
check to be issued in exchange for check to be issued in exchange for
Certificate(s) surrendered herewith Certificate(s) surrendered herewith
is to be issued in the name of is to be sent to someone other than
someone other than the undersigned. the undersigned or to the
undersigned at an address other
Issue check to: than that indicated above.
Name:.............................. Mail check to:
(Pleases Print)
Name:...............................
Address............................ (Pleases Print)
...................................
................................... Address.............................
(Include Zip Code) ....................................
....................................
................................... (Include Zip Code)
(Taxpayer Identification or Social
Security No.) ....................................
(SEE SUBSTITUTE FORM W-9) (Taxpayer Identification or Social
Security No.)
(SEE SUBSTITUTE FORM W-9)
- -------------------------------------- -------------------------------------
EX-99.1 (DISSENT) - 3
<PAGE>
- --------------------------------------------------------------------------------
IMPORTANT - SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
................................................................................
................................................................................
(Signature(s) of Certificate Holder(s))
Dated:........., 2000
(Must be signed by Certificate Holder(s) exactly as name(s) appear(s) on the
Certificate(s) or on a security position listing or by person(s) authorized to
become Certificate Holder(s) by certificate(s) and documents transmitted
herewith. If signature is by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, please also provide the necessary information. SEE
INSTRUCTION 4.)
Name(s):........................................................................
................................................................................
(Please Type or Print)
Capacity (Full Title):..........................................................
Address:........................................................................
........................................................................
(Include Zip Code)
Area Code and Telephone Number..................................................
Tax Identification or
Social Security No.:............................................................
(SEE SUBSTITUTE FORM W-9 AND INSTRUCTION 7)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED-SEE INSTRUCTION 1 AND 4)
Authorized Signature:...........................................................
Name (Please print):............................................................
Name of Firm:...................................................................
Address:........................................................................
....................................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number:.................................................
Dated:........., 2000
- --------------------------------------------------------------------------------
EX-99.1 (DISSENT) - 4
<PAGE>
TO BE COMPLETED BY ALL SURRENDERING CERTIFICATE HOLDERS
(SEE INSTRUCTION 7)
- --------------------------------------------------------------------------------
PAYOR'S NAME: AMERICAN STOCK TRANSFER AND TRUST COMPANY
- --------------------------------------------------------------------------------
SUBSTITUTE FORM W-9
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
PAYER'S REQUEST FOR TAXPAYER IDENTIFICATION NUMBER ("TIN") AND CERTIFICATION
- --------------------------------------------------------------------------------
Part 1 - PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND
DATING BELOW
TIN
-------------------------------------------
(Social Security Number or Employer ID Number)
- --------------------------------------------------------------------------------
Part 2 - FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING (SEE INSTRUCTIONS)
- --------------------------------------------------------------------------------
Part 3 - CERTIFICATIONS-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
Revenue Service (the "IRS") that I am subject to backup withholding
as a result of failure to report all interest or dividends, or (c) the
IRS has notified me that I am no longer subject to backup withholding.
Signature: Date:
----------------------------------- ---------------------------
- --------------------------------------------------------------------------------
You must cross out item (2) above if you have been notified by the IRS that you
are subject to backup withholding because of underreporting interest or
dividends on your tax return.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
WROTE "APPLIED FOR" IN PART 1 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:
----------------------------------- ---------------------------
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
EX-99.1 (DISSENT) - 5
<PAGE>
MERGER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR INSTRUCTIONS.
EX-99.1 (DISSENT) - 6
<PAGE>
LADIES AND GENTLEMEN:
In connection with the merger (the "Merger") consummated on January 25,
2000, of 99 Cents Only Stores Merger Corporation ("Merger Subsidiary"), a wholly
owned subsidiary of 99 Cents Only Stores ("Parent"), into Universal
International, Inc., (the "Company"), pursuant to a Plan of Merger adopted by
the Board of Directors of Parent, the registered holder(s) (the "Certificate
Holder(s)") of the share certificate(s) described above (the "Certificate(s)")
formerly representing common shares (the "Shares"), of the Company, or the
transferee or assignee of such Certificate Holder(s), hereby submits and
surrenders to you the Certificate(s) in exchange for $2.32 per Share, net in
cash, without interest thereon (the "Merger Consideration"). The undersigned has
received a copy of the Notice of Merger and the enclosures thereto, including a
summary of shareholders' dissenters' rights and a copy of Sections 302.A.471 and
302A.473 of the Minnesota Business Corporation Act (the "MBCA"), all of which
were sent to Certificate Holders with this Letter of Transmittal.
The undersigned represents that the undersigned has full authority to
surrender the Certificate(s), free and clear of all liens, claims and
encumbrances. The undersigned will, upon request, execute and deliver any
additional documents reasonably deemed appropriate or necessary by American
Stock Transfer & Trust Company (the "Paying Agent") in connection with the
surrender of the Certificate(s). The undersigned hereby irrevocably constitutes
and appoints the Paying Agent the true and lawful agent and attorney-in-fact of
the undersigned with respect to the undersigned's Certificate(s) with full power
and substitution (such power-of-attorney being deemed to be an irrevocable power
coupled with an interest), to deliver the Certificate(s), together with all
accompanying evidences of transfer and authenticity, upon receipt by the Paying
Agent, as the undersigned's agent, of the consideration therefor, for
cancellation by the Paying Agent (as hereinafter defined). All authority
conferred or agreed to be conferred in this Letter of Transmittal shall be
binding upon the successors, assigns, heirs, executors, administrators and legal
representatives of the undersigned and shall not be affected by, and shall
survive, the death or incapacity of the undersigned.
THE UNDERSIGNED UNDERSTANDS THAT SUBMISSION OF THIS LETTER OF TRANSMITTAL
TO THE PAYING AGENT WILL CONSTITUTE A WAIVER OF HIS OR HER RIGHT TO DEMAND THE
FAIR VALUE OF HIS OR HER SHARES PURSUANT TO SECTIONS 302A.471 AND 302A.473 OF
THE MBCA. THE UNDERSIGNED FURTHER UNDERSTANDS THAT IF HE OR SHE HAS EXERCISED
DISSENTERS' RIGHTS BY FILING A DEMAND WITH RESPECT TO THE SHARES FORMERLY
REPRESENTED BY THE CERTIFICATE(S) SUBMITTED AND SURRENDERED HEREWITH, THE
UNDERSIGNED BY SUBMISSION TO THE PAYING AGENT OF THIS LETTER OF TRANSMITTAL
HEREBY WITHDRAWS SUCH DEMAND AND AGREES THAT THE FAIR VALUE OF SUCH SHARES IS
NOT MORE THAN THE MERGER CONSIDERATION AND PARENT AND MERGER SUBSIDIARY HEREBY
ACCEPT SUCH WITHDRAWAL.
The undersigned understands that surrender is not made in acceptable form
until receipt by the Paying Agent of this Letter of Transmittal, or a facsimile
hereof, duly completed and signed, together with the Certificate(s) and all
accompanying evidences of authority in form satisfactory to the Parent and any
other required documents. The undersigned hereby acknowledges that delivery of
the Certificate(s) shall be effected and risk of loss and title to the
Certificate(s) shall pass only upon proper delivery thereof to the Paying Agent.
All questions as to validity, form and eligibility of any surrender of
Certificate(s) hereunder will be determined by Parent and such determination
shall be final and binding on all parties.
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.
Please issue and deliver the check in payment for the Shares formerly
represented by the Certificate(s) surrendered pursuant to this Letter of
Transmittal to the undersigned at the address specified above unless otherwise
indicated under Special Payment Instructions or Special Delivery Instructions
above.
EX-99.1 (DISSENT) - 7
<PAGE>
INSTRUCTIONS
1. GUARANTEE OF SIGNATURES.
No signature guarantee on this Letter of Transmittal is required (a) if
this Letter of Transmittal is signed by the Certificate Holder(s) (which term,
for purposes of this document, shall include any participant in The Depository
Trust Company whose name appears on a security position listing as the owner of
Shares) of the Certificate(s) surrendered herewith, unless such holder has
completed either the box titled "Special Payment Instructions" or box entitled
"Special Delivery Instructions" on this Letter of Transmittal, or (b) if such
Certificate(s) are tendered for the account of a firm which has been approved
for this purpose by the Paying Agent (an "Eligible Institution"). Eligible
Institutions generally include banks, brokers, dealers, credit unions, savings
associations and other entities which are members in good standing of the
Securities Transfer Agents Medallion Program or the New York Stock Exchange
Medallion Program. 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 CERTIFICATE(S).
This Letter of Transmittal (or facsimile thereof) is to be completed by
Certificate Holder(s) in accordance with the Instructions set forth herein.
Certificate(s) together with 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 Paying Agent.
THE METHOD OF DELIVERY OF CERTIFICATE(S), THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE CERTIFICATE
HOLDER AND 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. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
3. INADEQUATE SPACE.
If the space provided herein is inadequate, the Certificate numbers and/or
number of Shares should be listed on a separate signed schedule attached hereto.
4. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the Certificate Holder(s) of the
Certificate(s) surrendered hereby, the signature(s) must correspond exactly with
the name(s) as written on the face of the Certificate(s) without alteration,
enlargement or any change whatsoever.
If any of the Certificate(s) surrendered hereby is held of record by two or
more joint holders, all such holders must sign this Letter of Transmittal.
If more than one Certificate is surrendered herewith and such Certificates
are registered in different names, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal as there are different
registrations of Certificates.
When this Letter of Transmittal is signed by the registered owner(s) of the
Certificate(s) listed and transmitted hereby, no endorsements of Certificate(s)
or separate stock powers are required. However, where payment is to be made to a
person other than the Certificate Holder(s), signatures on such Certificate(s)
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 Certificate(s) listed, the Certificate(s) must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the
EX-99.1 (DISSENT) - 8
<PAGE>
name or names of the registered owner or owners appear(s) on the Certificate(s).
Signature on such Certificate(s) or stock powers must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal or any Certificate or stock power is signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of a corporation or others acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory to
the Paying Agent of their authority so to act must be submitted.
5. STOCK TRANSFER TAXES.
The Company will pay any stock transfer taxes with respect to
Certificate(s) surrendered pursuant to the Merger. However, if payment is to be
made to a person other than the person in whose name the Certificate(s)
surrendered is registered, the amount of any stock transfer taxes (whether
imposed on the Certificate Holder(s) or such person) payable on account of the
transfer to such person will be deducted from payment for such Certificate(s)
unless satisfactory evidence of the payment of such taxes or an exemption
therefrom is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 5, IT WILL NOT BE NECESSARY FOR A
TRANSFER TAX STAMP TO BE AFFIXED TO THE CERTIFICATE(S) LISTED IN THIS LETTER OF
TRANSMITTAL.
6. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS.
If a check is to be issued for Certificate(s) formerly representing Shares
surrendered herewith in the name of a person other than the signer(s) of this
Letter of Transmittal or if such check is to be sent to someone other than the
signer(s) of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
7. 31% BACKUP WITHHOLDING: SUBSTITUTE FORM W-9.
Under U.S. federal income tax law, a Certificate Holder whose
Certificate(s) is surrendered herewith is required to provide the Paying Agent
with such Certificate Holder's correct taxpayer identification number ("TIN") on
substitute Form W-9 above. If such Certificate Holder(s) is an individual, the
TIN is her or his social security number. If the Paying Agent is not provided
with the correct TIN, the Internal Revenue Service may subject the Certificate
Holder or other payee to a $50 penalty. In addition, payments that are made to
such Certificate Holder or other payee with respect to Shares converted into the
right to receive cash pursuant to the Merger may be subject to 31% backup
withholding.
Certain Certificate Holders (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, the Certificate Holder must submit a Form W-8, signed under
penalties of perjury, attesting to that individual's exempt status. A Form W-8
can be obtained from the Paying Agent. See the enclosed "Guidelines for
Certificate of Taxpayer Identification Number on Substitute Form W-9" for more
instructions.
If backup withholding applies, the Paying Agent is required to withhold 31%
of any such payments made to the Certificate Holder or other payee. 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.
To prevent backup withholding on payments that are made to a Certificate
Holder with respect to Shares converted into the right to receive cash pursuant
to the Merger, the Certificate Holder is required to notify the Paying Agent of
such Certificate Holder's correct TIN by completing a Substitute W-9 certifying
(a) that the TIN provided on Substitute Form W-9 is correct (or that such
Certificate Holder is awaiting a TIN), and (b) that (i) such Certificate Holder
is exempt from backup withholding or (ii) such Certificate Holder has not been
notified by the Internal Revenue Service that such Certificate Holder is subject
to backup withholding as a result of a failure to report all interest or
dividends or (iii) the Internal Revenue Service has notified such Certificate
Holder that such Certificate Holder is no longer subject to the backup
withholding.
EX-99.1 (DISSENT) - 9
<PAGE>
Exempt Certificate Holders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. To prevent possible erroneous backup withholding, an
exempt Certificate Holder must enter its correct TIN in Part 1 of Substitute
Form W-9, write "Exempt" in Part 2 of such form, and sign and date this form.
See the enclosed Guidelines for Certification of Taxpayer Identification Number
of Substitute Form W-9 (the "W-9 Guidelines") for additional instructions. In
order for a nonresident alien or foreign entity to qualify as exempt, such
person must submit a completed Form W-8, "Certificate of Foreign Status" signed
under penalties of perjury attesting to such exempt status. Such forms may be
obtained from the Payor.
If you do not have a TIN, consult the W-9 Guidelines for instructions on
applying for a TIN, write "Applied For" in the space for the TIN in Part 1 of
the Substitute Form W-9, and sign and date the Substitute Form W-9 and the
Certificate of Awaiting Taxpayer Identification Number set forth herein. If you
do not provide your TIN to the Payor within 60 days, backup withholding will
begin and continue until you furnish your TIN to the Payor. NOTE: WRITING
"APPLIED FOR" ON THE FORM MEANS THAT YOU HAVE ALREADY APPLIED FOR A TIN OR THAT
YOU INTEND TO APPLY FOR ONE IN THE NEAR FUTURE.
Each Certificate Holder is required to give the Paying Agent the TIN of the
record owner of the Shares or of the last transferee appearing on the transfers
attached to, or endorsed on, the Shares. 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.
8. REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Paying Agent
at its address and telephone numbers listed on the first page of this Letter of
Transmittal. Additional copies of the Notice of Merger, this Letter of
Transmittal and the Guidelines for Certification of Taxpayer Identification
Number or Substitute Form W-9 and other documents may be obtained from the
Paying Agent, and will be furnished promptly at the Parent's expense. You may
also contact your broker, dealer, commercial bank, trust company, or other
nominee for assistance in connection with the Merger.
9. LOST, DESTROYED OR STOLEN CERTIFICATES.
If any Certificate(s) representing Shares has been lost, destroyed or
stolen, the Certificate Holder(s) should promptly notify the Paying Agent. The
Certificate Holder(s) 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 Certificate(s) have been followed. No interest will be paid on amounts
due for such or any Certificate(s).
10. VALIDITY OF SURRENDER, IRREGULARITIES.
All questions as to validity, form and eligibility of any surrender of the
Certificate(s) hereunder will be determined by Parent (which may delegate power
in whole or in part to the Paying Agent), and such determination shall be final
and binding. Parent (which may delegate power in whole or in part to the Paying
Agent) reserves the right to waive any irregularities or defects in the
surrender of any Certificate(s) and its interpretations of the terms and
conditions of the Merger Agreement and of this Letter of Transmittal (including
these instructions) with respect to such irregularities or defects shall be
final and binding. A surrender will not be deemed to have been made until all
irregularities and defects have been cured or waived.
IF FURTHER INSTRUCTIONS ARE NECESSARY, CONTACT THE PAYING AGENT AT
1-800-937-5449. MANUALLY SIGNED FACSIMILE COPIES OF THE LETTER OF TRANSMITTAL,
PROPERLY COMPLETED AND DULY EXECUTED, WILL BE ACCEPTED. THE LETTER OF
TRANSMITTAL, CERTIFICATES FOR SHARES AND ANY OTHER REQUIRED DOCUMETNS SHOULD BE
SENT OR DELIVERED BY EACH CERTIFICATE HOLDER OR HIS BROKER, DEALER, COMMERCIAL
BANK, TRUST COMPANY OR OTHER NOMINEE TO THE PAYING AGENT AT ONE OF ITS ADDRESSES
APPEARING ON THE FRONT PAGE OF THE LETTER OF TRANSMITTAL.
EX-99.1 (DISSENT) - 10
<PAGE>
ANNEX I
99 CENTS ONLY STORES
RESOLUTIONS OF BOARD OF DIRECTORS
WHEREAS, 99 Cents Only Stores, a California corporation (the "Company"),
owns more than 90% of the issued and outstanding capital stock of Universal
International, Inc., a Minnesota corporation ("Subsidiary"), which issued and
outstanding capital stock consists of 9,518,328 shares (each, a "Share" and
collectively, the "Shares") of common stock, par value $.05 per share;
WHEREAS, the Company owns 100% of the issued and outstanding capital stock
of 99 Cents Only Stores Merger Corporation, a Minnesota corporation ("Newco"),
which issued and outstanding capital stock consists of 1,000 shares (each, a
"Newco Share" and collectively, the "Newco Shares") of common stock, no par
value (the "Newco Common Stock");
WHEREAS, the Company desires to effect the merger of Newco with and into
the Subsidiary pursuant to Section 302A.621 of the Minnesota Business
Corporation Act (the "MBCA").
NOW, THEREFORE, BE IT RESOLVED, that Newco be merged with and into the
Subsidiary pursuant to Section 302A.621 of the MBCA (the "Merger"), in
accordance with the further resolutions below (which resolutions shall
constitute the Plan of Merger).
RESOLVED FURTHER, that as a result of the Merger, the separate corporate
existence of Newco shall cease and the Subsidiary shall continue as the
surviving corporation of the Merger (the "Surviving Corporation").
RESOLVED FURTHER, that at the Effective Time (as defined below), each Share
issued and outstanding immediately prior to the Effective Time (except for
Shares then owned beneficially or of record by the Company and except for
Dissenting Shares (as defined below)) shall, by virtue of the Merger and without
any action on the part of the holder thereof, be canceled and converted into the
right to receive $ 2.32 (the "Merger Consideration") in cash payable to the
holder thereof (pro-rated for fractional shares, if any), without interest
thereon, upon surrender of the certificate representing such Share (the
"Certificate").
RESOLVED FURTHER, that the Company shall cause to be mailed to each person
who was, at the Effective Time, a holder of record of Shares entitled to receive
the Merger Consideration: (i) a form of letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificates evidencing such Shares shall pass, only upon proper delivery of the
Certificates to the Surviving Corporation at the address specified in such
letter of transmittal) and (ii) instructions for use in effecting the surrender
of the Certificates pursuant to
<PAGE>
such letter of transmittal; and that upon surrender to the Surviving Corporation
of a Certificate, together with such letter of transmittal, duly completed and
validly executed in accordance with the instructions thereto, and such other
documents as reasonably may be required pursuant to such instructions, the
holder of such Certificate shall be entitled promptly to receive in exchange
therefor the Merger Consideration for each Share formerly evidenced by such
Certificate.
RESOLVED FURTHER, that if payment of the Merger Consideration is to be made
to a person other than the person in whose name the surrendered Certificate is
registered on the stock transfer books of the Subsidiary, it shall be a
condition of payment that the Certificate so surrendered shall be endorsed
properly or otherwise be in proper form for transfer and that the person
requesting such payment shall have paid all transfer and other taxes required by
reason of the payment of the Merger Consideration to a person other than the
registered holder of the Certificate surrendered or shall have established to
the satisfaction of the Surviving Corporation that such taxes either have been
paid or are not applicable.
RESOLVED FURTHER, that in the event any Certificate or Certificates shall
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming such Certificate or Certificates to have been lost,
stolen or destroyed, the amount to which such person would have been entitled
hereunder but for failure to deliver such Certificate or Certificates to the
Surviving Corporation shall nevertheless be paid to such person; provided,
however, that the Surviving Corporation may, in its sole discretion and as a
condition precedent to such payment, require such person to give the Surviving
Corporation a written indemnity agreement in form and substance reasonably
satisfactory to the Surviving Corporation and, if reasonably deemed advisable by
the Surviving Corporation, a bond in such sum as it may reasonably direct as
indemnity against any claim that may be had against the Surviving Corporation or
the Company with the respect to the Certificate or Certificates alleged to have
been lost, stolen or destroyed.
RESOLVED FURTHER, that at the close of business on the day of the Effective
Time, the stock transfer books of the Subsidiary shall be closed and thereafter
there shall be no further registration of transfers of Shares on the records of
the Subsidiary.
RESOLVED FURTHER, that at the Effective Time, each Share issued and
outstanding immediately prior to the Effective Time which is then owned
beneficially or of record by the Company shall, by virtue of the Merger and
without any action on the part of the Company, be canceled and cease to exist,
and no payment shall be made with respect thereto.
RESOLVED FURTHER, that at the Effective Time, the holders of Certificates
representing Shares that are issued and outstanding immediately prior to the
Effective Time shall cease to have any rights as shareholders of the Subsidiary,
except such rights, if any, as they may have pursuant to the MBCA (including the
rights of holders or beneficial owners of Dissenting Shares pursuant to Sections
302A.471, 302A.473 and 302A.621 of the MBCA), and, except as aforesaid, their
sole right shall be the right to receive the Merger Consideration for each Share
represented by a Certificate as aforesaid.
RESOLVED FURTHER, that promptly after the date hereof, a notice shall be
sent to each shareholder of the Subsidiary (other than the Company) in
accordance with Section 302A.473, subd. 4 of the MBCA.
EX-99.1 (ANNEX) - 2
<PAGE>
RESOLVED FURTHER, that Shares that are issued and outstanding immediately
prior to the Effective Time and that are held or beneficially owned by holders
or beneficial owners of such Shares who properly exercise and preserve
dissenters' rights with respect thereto in accordance with Sections 302A.471,
302A.473 and 302A.621 of the MBCA ("Dissenting Shares") will not be converted
into the right to receive the Merger Consideration, and holders or beneficial
owners of such Dissenting Shares will be entitled to receive payment of the fair
value of such Dissenting Shares in cash in accordance with the provisions of
Section 302A.473 of the MBCA unless and until such holders or beneficial owners
fail to perfect or effectively withdraw or lose their rights to payment under
such Section 302A.473, in which case such Dissenting Shares will thereupon be
treated as if they had been converted into, at the Effective Time, the right to
receive the Merger Consideration per Share, without interest.
RESOLVED FURTHER, that at the Effective Time, each Newco Share issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and exchanged for one validly issued, fully paid and nonassessable share of
common stock, par value $.05 per share, of the Surviving Corporation (the
"Surviving Corporation Common Stock").
RESOLVED FURTHER, that from and after the Effective Time, each outstanding
certificate theretofore representing shares of Newco Common Stock shall be
deemed for all purposes to evidence ownership of and to represent the same
number of shares of Surviving Corporation Common Stock.
RESOLVED FURTHER, that the Merger shall be effective upon the later of the
filing of articles of merger with the Secretary of State of the State of
Minnesota in the manner required by law or 11:59 p.m., Minneapolis, Minnesota
time, on January 24, 2000 (the date and time of such filing being the "Effective
Time").
RESOLVED FURTHER, that a copy of these resolutions shall be mailed to each
shareholder of the Subsidiary (other than the Company) in accordance with
Section 302A.621, subd. 2 of the MBCA.
RESOLVED FURTHER, that any officer of the Company be and hereby is
authorized and directed to sign, for and on behalf of the Company, articles of
merger setting forth the foregoing Plan of Merger and such other information as
required by law, and to cause such articles to be filed for record with the
Secretary of State of the State of Minnesota in the manner required by law.
RESOLVED FURTHER, that the officers of the Company, and each of them, be
and they hereby are authorized, for and on behalf of the Company, to take such
other action as such officers, or any of them, shall deem necessary or
appropriate to carry out the purposes of the foregoing resolutions.
EX-99.1 (ANNEX) - 3
<PAGE>
ANNEX II
MINNESOTA STATUTES
302A.471 RIGHTS OF DISSENTING SHAREHOLDERS.
Subdivision 1. ACTIONS CREATING RIGHTS. A shareholder of a corporation may
dissent from, and obtain payment for the fair value of the shareholder's shares
in the event of, any of the following corporate actions:
(a) An amendment of the articles that materially and adversely affects
the rights or preferences of the shares of the dissenting shareholder in
that it:
(1) alters or abolishes a preferential right of the shares;
(2) creates, alters, or abolishes a right in respect of the
redemption of the shares, including a provision respecting a sinking
fund for the redemption or repurchase of the shares;
(3) alters or abolishes a preemptive right of the holder of the
shares to acquire shares, securities other than shares, or rights to
purchase shares or securities other than shares;
(4) excludes or limits the right of a shareholder to vote on a
matter, or to cumulate votes, except as the right may be excluded or
limited through the authorization or issuance of securities of an
existing or new class or series with similar or different voting
rights; except that an amendment to the articles of an issuing public
corporation that provides that section 302A.671 does not apply to a
control share acquisition does not give rise to the right to obtain
payment under this section;
(b) A sale, lease, transfer, or other disposition of all or
substantially all of the property and assets of the corporation, but not
including a transaction permitted without shareholder approval in section
302A.661, subdivision 1, or a disposition in dissolution described in
section 302A.725, subdivision 2, or a disposition pursuant to an order of a
court, or a disposition for cash on terms requiring that all or
substantially all of the net proceeds of disposition be distributed to the
shareholders in accordance with their respective interests within one year
after the date of disposition;
(c) A plan of merger, whether under this chapter or under chapter
322B, to which the corporation is a constituent organization, except as
provided in subdivision 3;
(d) A plan of exchange, whether under this chapter or under chapter
322B, to which the corporation is a party as the corporation whose shares
will be acquired by the acquiring corporation, if the shares of the
shareholder are entitled to be voted on the plan; or
(e) Any other corporate action taken pursuant to a shareholder vote
with respect to which the articles, the bylaws, or a resolution approved by
the board directs that dissenting shareholders may obtain payment for their
shares.
Subd. 2. BENEFICIAL OWNERS. (a) A shareholder shall not assert dissenters'
rights as to less than all of the shares registered in the name of the
shareholder, unless the shareholder dissents
<PAGE>
with respect to all the shares that are beneficially owned by another person but
registered in the name of the shareholder and discloses the name and address of
each beneficial owner on whose behalf the shareholder dissents. In that event,
the rights of the dissenter shall be determined as if the shares as to which the
shareholder has dissented and the other shares were registered in the names of
different shareholders.
(b) A beneficial owner of shares who is not the shareholder may assert
dissenters' rights with respect to shares held on behalf of the beneficial
owner, and shall be treated as a dissenting shareholder under the terms of
this section and section 302A.473, if the beneficial owner submits to the
corporation at the time of or before the assertion of the rights a written
consent of the shareholder.
Subd. 3. RIGHTS NOT TO APPLY. (a) Unless the articles, the bylaws, or a
resolution approved by the board otherwise provide, the right to obtain payment
under this section does not apply to a shareholder of the surviving corporation
in a merger, if the shares of the shareholder are not entitled to be voted on
the merger.
(b) If a date is fixed according to section 302A.445, subdivision 1,
for the determination of shareholders entitled to receive notice of and to
vote on an action described in subdivision 1, only shareholders as of the
date fixed, and beneficial owners as of the date fixed who hold through
shareholders, as provided in subdivision 2, may exercise dissenters'
rights.
Subd. 4. OTHER RIGHTS. The shareholders of a corporation who have a right
under this section to obtain payment for their shares do not have a right at law
or in equity to have a corporate action described in subdivision 1 set aside or
rescinded, except when the corporate action is fraudulent with regard to the
complaining shareholder or the corporation.
EX-99.1 (ANNEX II) - 2
<PAGE>
MINNESOTA STATUTES
302A.473 PROCEDURES FOR ASSERTING DISSENTERS' RIGHTS.
Subdivision 1. DEFINITIONS. (a) For purposes of this section, the terms
defined in this subdivision have the meanings given them.
(b) "Corporation" means the issuer of the shares held by a dissenter
before the corporate action referred to in section 302A.471, subdivision 1
or the successor by merger of that issuer.
(c) "Fair value of the shares" means the value of the shares of a
corporation immediately before the effective date of the corporate action
referred to in section 302A.471, subdivision 1.
(d) "Interest" means interest commencing five days after the effective
date of the corporate action referred to in section 302A.471, subdivision
1, up to and including the date of payment, calculated at the rate provided
in section 549.09 for interest on verdicts and judgments.
Subd. 2. NOTICE OF ACTION. If a corporation calls a shareholder meeting at
which any action described in section 302A.471, subdivision 1 is to be voted
upon, the notice of the meeting shall inform each shareholder of the right to
dissent and shall include a copy of section 302A.471 and this section and a
brief description of the procedure to be followed under these sections.
Subd. 3. NOTICE OF DISSENT. If the proposed action must be approved by the
shareholders, a shareholder who is entitled to dissent under section 302A.471
and who wishes to exercise dissenters' rights must file with the corporation
before the vote on the proposed action a written notice of intent to demand the
fair value of the shares owned by the shareholder and must not vote the shares
in favor of the proposed action.
Subd. 4. NOTICE OF PROCEDURE; DEPOSIT OF SHARES. (a) After the proposed
action has been approved by the board and, if necessary, the shareholders, the
corporation shall send to all shareholders who have complied with subdivision 3
and to all shareholders entitled to dissent if no shareholder vote was required,
a notice that contains:
(1) The address to which a demand for payment and certificates of
certificated shares must be sent in order to obtain payment and the
date by which they must be received;
(2) Any restrictions on transfer of uncertificated shares that
will apply after the demand for payment is received;
(3) A form to be used to certify the date on which the
shareholder, or the beneficial owner on whose behalf the shareholder
dissents, acquired the shares or an interest in them and to demand
payment; and
(4) A copy of section 302A.471 and this section and a brief
description of the procedures to be followed under these sections.
EX-99.1 (ANNEX II) - 3
<PAGE>
(b) In order to receive the fair value of the shares, a dissenting
shareholder must demand payment and deposit certificated shares or comply
with any restrictions on transfer of uncertificated shares within 30 days
after the notice required by paragraph (a) was given, but the dissenter
retains all other rights of a shareholder until the proposed action takes
effect.
Subd. 5. PAYMENT; RETURN OF SHARES. (a) After the corporate action takes
effect, or after the corporation receives a valid demand for payment, whichever
is later, the corporation shall remit to each dissenting shareholder who has
complied with subdivisions 3 and 4 the amount the corporation estimates to be
the fair value of the shares, plus interest, accompanied by:
(1) the corporation's closing balance sheet and statement of
income for a fiscal year ending not more than 16 months before the
effective date of the corporate action, together with the latest
available interim financial statements;
(2) an estimate by the corporation of the fair value of the
shares and a brief description of the method used to reach the
estimate; and
(3) a copy of section 302A.471 and this section, and a brief
description of the procedure to be followed in demanding supplemental
payment.
(b) The corporation may withhold the remittance described in paragraph
(a) from a person who was not a shareholder on the date the action
dissented from was first announced to the public or who is dissenting on
behalf of a person who was not a beneficial owner on that date. If the
dissenter has complied with subdivisions 3 and 4, the corporation shall
forward to the dissenter the materials described in paragraph (a), a
statement of the reason for withholding the remittance, and an offer to pay
to the dissenter the amount listed in the materials if the dissenter agrees
to accept that amount in full satisfaction. The dissenter may decline the
offer and demand payment under subdivision 6. Failure to do so entitles the
dissenter only to the amount offered. If the dissenter makes demand,
subdivisions 7 and 8 apply.
(c) If the corporation fails to remit payment within 60 days of the
deposit of certificates or the imposition of transfer restrictions on
uncertificated shares, it shall return all deposited certificates and
cancel all transfer restrictions. However, the corporation may again give
notice under subdivision 4 and require deposit or restrict transfer at a
later time.
Subd. 6. SUPPLEMENTAL PAYMENT; DEMAND. If a dissenter believes that the
amount remitted under subdivision 5 is less than the fair value of the shares
plus interest, the dissenter may give written notice to the corporation of the
dissenter's own estimate of the fair value of the shares, plus interest, within
30 days after the corporation mails the remittance under subdivision 5, and
demand payment of the difference. Otherwise, a dissenter is entitled only to the
amount remitted by the corporation.
Subd. 7. PETITION; DETERMINATION. If the corporation receives a demand
under subdivision 6, it shall, within 60 days after receiving the demand, either
pay to the dissenter the amount demanded or agreed to by the dissenter after
discussion with the corporation or file in court a petition requesting that the
court determine the fair value of the shares, plus interest. The petition shall
be filed in the county in which the registered office of the corporation is
located, except that a surviving foreign corporation that receives a demand
relating to the shares of a constituent domestic
EX-99.1 (ANNEX II) - 4
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corporation shall file the petition in the county in this state in which the
last registered office of the constituent corporation was located. The petition
shall name as parties all dissenters who have demanded payment under subdivision
6 and who have not reached agreement with the corporation. The corporation
shall, after filing the petition, serve all parties with a summons and copy of
the petition under the rules of civil procedure. Nonresidents of this state may
be served by registered or certified mail or by publication as provided by law.
Except as otherwise provided, the rules of civil procedure apply to this
proceeding. The jurisdiction of the court is plenary and exclusive. The court
may appoint appraisers, with powers and authorities the court deems proper, to
receive evidence on and recommend the amount of the fair value of the shares.
The court shall determine whether the shareholder or shareholders in question
have fully complied with the requirements of this section, and shall determine
the fair value of the shares, taking into account any and all factors the court
finds relevant, computed by any method or combination of methods that the court,
in its discretion, sees fit to use, whether or not used by the corporation or by
a dissenter. The fair value of the shares as determined by the court is binding
on all shareholders, wherever located. A dissenter is entitled to judgment in
cash for the amount by which the fair value of the shares as determined by the
court, plus interest, exceeds the amount, if any, remitted under subdivision 5,
but shall not be liable to the corporation for the amount, if any, by which the
amount, if any, remitted to the dissenter under subdivision 5 exceeds the fair
value of the shares as determined by the court, plus interest.
Subd. 8. COSTS; FEES; EXPENSES. (a) The court shall determine the costs and
expenses of a proceeding under subdivision 7, including the reasonable expenses
and compensation of any appraisers appointed by the court, and shall assess
those costs and expenses against the corporation, except that the court may
assess part or all of those costs and expenses against a dissenter whose action
in demanding payment under subdivision 6 is found to be arbitrary, vexatious, or
not in good faith.
(b) If the court finds that the corporation has failed to comply
substantially with this section, the court may assess all fees and expenses
of any experts or attorneys as the court deems equitable. These fees and
expenses may also be assessed against a person who has acted arbitrarily,
vexatiously, or not in good faith in bringing the proceeding, and may be
awarded to a party injured by those actions.
(c) The court may award, in its discretion, fees and expenses to an
attorney for the dissenters out of the amount awarded to the dissenters, if
any.
EX-99.1 (ANNEX II) - 5
