EXHIBIT (A)(2)
LETTER OF TRANSMITTAL
To Tender Shares of Common Stock
of
CDnow, Inc.
Pursuant to the Offer to Purchase
dated July 26, 2000
by
BINC Acquisition Corp.
a wholly owned subsidiary of
Bertelsmann, Inc.
LETTER OF TRANSMITTAL
To Tender Shares of Common Stock
of
CDnow, Inc.
Pursuant to the Offer to Purchase
dated July 26, 2000
by
BINC Acquisition Inc.
a wholly owned subsidiary of
Bertelsmann, Inc.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, AUGUST 22, 2000, UNLESS THIS OFFER IS EXTENDED.
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The Depositary for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
By Mail: By Overnight Courier: By Hand:
P.O. Box 3301 85 Challenger Road 120 Broadway, 13th Floor
South Hackensack, NJ 07606 Mail Drop-Reorg New York, NY 10271
Attn: Reorganization Ridgefield Park, NJ 07660 Attn: Reorganization
Department Attn: Reorganization Department
Department
By Facsimile Transmission
(For Eligible Institutions Only):
(201) 296-4293
Confirm Facsimile by
Telephone:
(201) 296-4860
(For Confirmation Only)
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DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OR FACSIMILE NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE
DEPOSITARY.
<TABLE>
DESCRIPTION OF SHARES TENDERED
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Name(s) and Address(es) of Registered Holder(s)
(Please fill in, if blank, exactly as name(s) Share(s) Tendered
appear(s) on Share certificate(s)) (Attach additional list if necessary)
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Total Number of Shares Number of
Certificate Represented By Share Shares
Number(s)(1) Certificate(s)(2) Tendered
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<S> <C> <C> <C>
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Total Shares
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(1) Need not be completed by Book-Entry Shareholders.
(2) Unless otherwise indicated, it will be assumed that all Shares represented by certificates delivered to
the Depositary are being tendered hereby. See Instruction 4.
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[ ] CHECK HERE IF CERTIFICATES HAVE BEEN LOST, DESTROYED OR STOLEN. SEE
INSTRUCTION 11.
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</TABLE>
<PAGE>
THE INSTRUCTIONS CONTAINED WITHIN THIS LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The names and addresses of the registered holders of the tendered Shares
should be printed, if not already printed above, exactly as they appear on the
Share Certificates tendered hereby.
This Letter of Transmittal is to be used if certificates for Shares (as
defined below) are to be forwarded herewith or, unless an Agent's Message (as
defined in "The Offer--Acceptance for Payment and Payment for Shares" in the
Offer to Purchase) is utilized, if delivery of Shares is to be made by
book-entry transfer to an account maintained by the Depositary at the
Book-Entry Transfer Facility (as defined in "The Offer--Acceptance for Payment
and Payment for Shares" in the Offer to Purchase and pursuant to the procedures
set forth in "The Offer--Procedures for Accepting the Offer and Tendering
Shares" thereof).
Holders of Shares whose certificates for such Shares (the "Share
Certificates") are not immediately available, or who cannot complete the
procedure for book-entry transfer on a timely basis, or who cannot deliver all
other required documents to the Depositary prior to the Expiration Date (as
defined in the Offer to Purchase), must tender their Shares according to the
guaranteed delivery procedure set forth in "The Offer--Procedures for Accepting
the Offer and Tendering Shares" in the Offer to Purchase. See Instruction 2.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY WILL NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
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Account Number
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Transaction Code Number
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[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s)
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Window Ticket Number (if any) or DTC Participant Number
--------------------
Date of Execution of Notice of Guaranteed Delivery
-------------------------
Name of Institution that Guaranteed Delivery
-------------------------------
If delivered by book-entry transfer:
Name of Tendering Institution
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Account Number
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Transaction Code Number
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NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS LETTER OF
TRANSMITTAL CAREFULLY
2
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to BINC Acquisition Corp., a Pennsylvania
corporation ("Purchaser") and a wholly owned subsidiary of Bertelsmann, Inc.
("Bertelsmann"), the above-described shares of common stock, no par value (the
"Shares"), of CDnow, Inc., a Pennsylvania corporation (the "Company"), pursuant
to Purchaser's offer to purchase all outstanding Shares, at a purchase price of
$3.00 per Share, net to the seller in cash (the "Offer Price"), without
interest thereon, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated July 26, 2000, and in this Letter of Transmittal (which
together with any amendments or supplements thereto or hereto, collectively
constitute the "Offer").
Upon the terms and subject to the conditions of the Offer (and if the
Offer is extended or amended, the terms of any such extension or amendment),
and effective upon acceptance for payment of the Shares tendered herewith in
accordance with the terms of the Offer, the undersigned hereby sells, assigns
and transfers to or upon the order of the Purchaser all right, title and
interest in and to all of the Shares that are being tendered hereby (and any
and all dividend, distributions, rights, other Shares or other securities
issued or issuable in respect thereof on or after the date hereof
(collectively, "Distributions")) and irrevocably constitutes and appoints
ChaseMellon Shareholder Services, L.L.C. (the "Depositary") the true and lawful
agent and attorney-in-fact of the undersigned with respect to such Shares (and
all Distributions), with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest), to (i)
deliver certificates for such Shares (and any and all Distributions) or
transfer ownership of such Shares (and any and all Distributions) on the
account books maintained by the Book-Entry Transfer Facility, together, in any
such case, with all accompanying evidences of transfer and authenticity, to or
upon the order of the Purchaser, (ii) present such Shares (and any and all
Distributions) for transfer on the books of the Company, and (iii) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Shares (and any and all Distributions), all in accordance with the terms of the
Offer.
By executing this Letter of Transmittal, the undersigned hereby
irrevocably appoints Robert Sorrentino and Jacqueline Chasey in their
respective capacities as officers of Purchaser, and any individual who shall
thereafter succeed to any such office of Purchaser, and each of them, and any
other designees of Purchaser, the attorneys-in-fact and proxies of the
undersigned, each with full power of substitution, to vote at any annual or
special meeting of the Company's shareholders or any adjournment or
postponement thereof or otherwise in such manner as each such attorney-in-fact
and proxy or his or her substitute shall in his or her sole discretion deem
proper with respect to, to execute any written consent concerning any matter as
each such attorney-in-fact and proxy or his or her substitute shall in his or
her sole discretion deem proper with respect to, and to otherwise act as each
such attorney-in-fact and proxy or his or her substitute shall in his or her
sole discretion deem proper with respect to, all of the Shares (and any and all
Distributions) tendered hereby and accepted for payment by Purchaser. This
appointment will be effective if and when, and only to the extent that,
Purchaser accepts such Shares for payment pursuant to the Offer. This power of
attorney and proxy are irrevocable and are granted in consideration of the
acceptance for payment of such Shares in accordance with the terms of the
Offer. Such acceptance for payment shall, without further action, revoke any
prior powers of attorney and proxies granted by the undersigned at any time
with respect to such Shares (and any and all Distributions), and no subsequent
powers of attorney, proxies, consents or revocations may be given by the
undersigned with respect thereto (and, if given, will not be deemed effective).
Purchaser reserves the right to require that, in order for the Shares or other
securities to be deemed validly tendered, immediately upon Purchaser's
acceptance for payment of such Shares, Purchaser must be able to exercise full
voting, consent and other rights with respect to such Shares (and any and all
Distributions), including voting at any meeting of the Company's shareholders.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby and all Distributions and that, when the same are accepted for
payment by Purchaser, Purchaser will acquire good, marketable and unencumbered
title thereto and to all Distributions, free and clear of all liens,
restrictions, charges and encumbrances and the same will not be subject to any
adverse claims. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Depositary or Purchaser to be necessary or
desirable to complete the sale, assignment and transfer of the Shares tendered
hereby and all Distributions. In addition, the undersigned shall remit and
transfer promptly to the Depositary for the account of Purchaser all
Distributions in respect of the Shares tendered hereby, accompanied by
appropriate documentation of transfer, and, pending such remittance and
transfer or appropriate assurance thereof, Purchaser shall be entitled to all
rights and privileges as owner of each such Distribution and may withhold the
entire purchase price of the Shares
3
<PAGE>
tendered hereby or deduct from such purchase price, the amount or value of such
Distribution as determined by Purchaser in its sole discretion.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the heirs, executors, administrators, personal
representatives, trustees in bankruptcy, successors and assigns of the
undersigned. Except as stated in the Offer, this tender is irrevocable.
The undersigned understands that the valid tender of the Shares pursuant
to any one of the procedures described in "The Offer--Procedures for Accepting
the Offer and Tendering Shares" in the Offer to Purchase and in the
Instructions hereto will constitute a binding agreement between the undersigned
and Purchaser upon the terms and subject to the conditions of the Offer (and if
the Offer is extended or amended, the terms or conditions of any such extension
or amendment). Without limiting the foregoing, if the price to be paid in the
Offer is amended in accordance with the Merger Agreement, the price to be paid
to the undersigned will be the amended price notwithstanding the fact that a
different price is stated in this Letter of Transmittal. The undersigned
recognizes that under certain circumstances set forth in the Offer to Purchase,
Purchaser may not be required to accept for payment any of the Shares tendered
hereby.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price of all of the Shares purchased and/or
return any certificates for the Shares not tendered or accepted for payment in
the name(s) of the registered holder(s) appearing above under "Description of
Shares Tendered." Similarly, unless otherwise indicated under "Special Delivery
Instructions," please mail the check for the purchase price of all of the
Shares purchased and/or return any certificates for the Shares not tendered or
not accepted for payment (and any accompanying documents, as appropriate) to
the address(es) of the registered holder(s) appearing above under "Description
of Shares Tendered." In the event that the boxes entitled "Special Payment
Instructions" and "Special Delivery Instructions" are both completed, please
issue the check for the purchase price of all Shares purchased and/or return
any certificates evidencing Shares not tendered or not accepted for payment
(and any accompanying documents, as appropriate) in the name(s) of, and deliver
such check and/or return any such certificates (and any accompanying documents,
as appropriate) to, the person(s) so indicated. Unless otherwise indicated
herein in the box entitled "Special Payment Instructions," please credit any
Shares tendered herewith by book-entry transfer that are not accepted for
payment by crediting the account at the Book-Entry Transfer Facility designated
above. The undersigned recognizes that Purchaser has no obligation, pursuant to
the "Special Payment Instructions," to transfer any Shares from the name of the
registered holder thereof if Purchaser does not accept for payment any of the
Shares so tendered.
4
<PAGE>
<TABLE>
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SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, 6 and 7) (See Instructions 1, 5, 6 and 7)
<S> <C>
To be completed ONLY if the check for cash To be completed ONLY if certificates for Shares
payable in the Offer is to be issued in the name of not tendered or not accepted for payment and/or the
someone other than the undersigned, if certificates for check for cash payable in the Offer is to be sent to
the Shares not tendered or not accepted for payment are someone other than the undersigned or to the
to be issued in the name of someone other than the undersigned at an address other than that shown under
undersigned or if Shares tendered hereby and delivered "Description of Shares Tendered".
by book-entry transfer that are not accepted for payment
are to be returned by credit to an account maintained at
a Book-Entry Transfer Facility other than the account
indicated above.
Issue [ ] check Mail [ ] check
[ ] certificate(s) to: [ ] certificate(s) to:
Name Name
---------------------------------------------------- --------------------------------------------------
(Please print) (Please print)
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Address Address
------------------------------------------------- ----------------------------------------------
-------------------------------------------------------- ------------------------------------------------------
(Zip Code) (Zip Code)
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Taxpayer Identification or Social Security Number Taxpayer Identification or Social Security Number
(See Substitute Form W-9) (See Substitute Form W-9)
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</TABLE>
5
<PAGE>
IMPORTANT
SIGN HERE
(Please Complete Substitute Form W-9 Included Herein)
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Signature(s) of Shareholders
Dated
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Name(s)
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Capacity (Full Title)
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(See Instruction 5)
Address
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(Include Zip Code)
Area Code and Telephone Number
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Taxpayer Identification or
Social Security Number
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(See Substitute Form W-9)
(Must be signed by registered holder(s) exactly as name(s) appear(s) on the
Share certificate(s) or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other person acting in
a fiduciary or representative capacity, please set forth full title and see
Instruction 5.)
GUARANTEE OF SIGNATURE(S)
(If required--See Instructions 1 and 5)
Authorized Signatures(s)
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Name
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Name of Firm
-------------------------------------------------------------------
Address
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(Include Zip Code)
Area Code and Telephone Number
--------------------------------------------------
Dated
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6
<PAGE>
What Number to Give the Depositary
The shareholder is required to give the Depositary the TIN (e.g., Social
Security number or Employer Identification Number) of the record owner of the
Shares. If the Shares are registered in more than one name or are not
registered in the name of the actual owner, consult the enclosed "Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
<TABLE>
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PAYER'S NAME: BINC Acquisition Corp.
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<S> <C> <C>
SUBSTITUTE Part 1--PLEASE PROVIDE YOUR TIN IN THE BOX AT ________________________
Form W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Social Security Number(s)
Department of the OR
Treasury Internal _______________________
Revenue Service Employer Identification
Number(s)
Payer's Request for
Taxpayer Identification
Number ("TIN") --------------------------------------------------------------------------------------------
and Certifications
Part 2-- Certification--Under Penalties of Perjury, Part 3--
I certify that: Awaiting TIN [ ]
(1) The number shown on the 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 because: -------------------------------------
(a) I am exempt from backup withholding, or (b)
I have not been notified by the Internal Revenue Part 4--
Service ("IRS") that I am subject to backup Exempt from backup withholding
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.
(3) Any other information provided on this form is
true, correct and complete.
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Certification Instructions -- You must cross out item (2) in Part 2 above if you have been
notified by the IRS that you are currently subject to backup withholding because of
underreporting interest or dividends on your tax return. However, if after being notified
by the IRS that you were subject to backup withholding you received another notification
from the IRS that you are no longer subject to backup withholding, do not cross out item (2).
Name __________________________________________________________________________
Address ________________________________________________________________________
(Include zip code)
Signature ______________________________________ Date ____________________________
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</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE IRS AND BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE
TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM
W-9 FOR ADDITIONAL DETAILS.
NOTE: YOU MUST COMPLETE THE FOLLOWING CERTIFICATION IF YOU CHECKED THE BOX IN
PART 3 OF THE SUBSTITUTE FORM W-9
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CERTIFICATION 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 IRS
Center or Social Security Administration office or (2) I intend to mail or
deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of payment, 31% of all
reportable cash payments made to me thereafter will be withheld until I provide
a taxpayer identification number to the payer and that, if I do not provide my
taxpayer identification number within sixty days, such retained amounts shall
be remitted to the IRS as backup withholding.
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Signature Date
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7
<PAGE>
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 (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Section, includes any
participant in the Book-Entry Transfer Facility's systems whose name appears on
a security position listing as the owner of the Shares) of Shares tendered
herewith, unless such registered holder(s) has completed either the box
entitled "Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (b) if such Shares are tendered
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in
the Security Transfer Agents Medallion Program (an "Eligible Institution"). In
all other cases, all signatures on this Letter of Transmittal must be
guaranteed by an Eligible Institution. See Instructions 5 and 7.
2. Requirements of Tender. This Letter of Transmittal is to be completed
by shareholders if certificates are to be forwarded herewith or, unless an
Agent's Message is utilized, if tenders are to be made pursuant to the
procedure for tender by book-entry transfer set forth in "The Offer--Procedures
for Accepting the Offer and Tendering Shares" in the Offer to Purchase. Share
Certificates evidencing tendered Shares, or timely confirmation (a "Book-Entry
Confirmation") of a book-entry transfer of Shares into the Depositary's account
at the Book-Entry Transfer Facility, as well as this Letter of Transmittal (or
a facsimile hereof), properly completed and duly executed, with any required
signature guarantees, or an Agent's Message in connection with a book-entry
transfer, and any other documents required by this Letter of Transmittal, must
be received by the Depositary at one of its addresses set forth herein prior to
the Expiration Date (as defined in "The Offer--Terms of the Offer" in the Offer
to Purchase). Shareholders whose Share Certificates are not immediately
available, or who cannot complete the procedure for delivery by book-entry
transfer on a timely basis or who cannot deliver all other required documents
to the Depositary prior to the Expiration Date, may tender their Shares by
properly completing and duly executing a Notice of Guaranteed Delivery pursuant
to the guaranteed delivery procedure set forth in "The Offer--Procedures for
Accepting the Offer and Tendering Shares" in the Offer to Purchase. Pursuant to
such procedure: (i) such tender must be made by or through an Eligible
Institution; (ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by Purchaser, must be
received by the Depositary prior to the Expiration Date; and (iii) the Share
Certificates (or a Book-Entry Confirmation) evidencing all tendered Shares, in
proper form for transfer, in each case together with the Letter of Transmittal
(or a facsimile thereof), properly completed and duly executed, with any
required signature guarantees (or, in the case of a book-entry delivery, an
Agent's Message) and any other documents required by this Letter of
Transmittal, must be received by the Depositary within three Nasdaq National
Market trading days after the date of execution of such Notice of the
Guaranteed Delivery. If Share Certificates are forwarded separately to the
Depositary, a properly completed and duly executed Letter of Transmittal must
accompany each such delivery.
The method of delivery of this Letter of Transmittal, Share Certificates
and all other required documents, including delivery through the Book-Entry
Transfer Facility, is at the option and the risk of the tendering shareholder
and the delivery will be deemed made only when actually received by the
Depositary (including, in the case of book-entry transfer, by book-entry
confirmation). If delivery is by mail, registered mail with return receipt
requested, properly insured, is recommended. In all cases, sufficient time
should be allowed to ensure timely delivery.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering shareholders, by execution
of this Letter of Transmittal (or a facsimile hereof), waive any right to
receive any notice of the acceptance of their Shares for payment.
3. Inadequate Space. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares and any other required
information should be listed on a separate signed schedule attached hereto.
4. Partial Tenders (not applicable to shareholders who tender by
book-entry transfer). If fewer than all of the Shares evidenced by any Share
Certificate are to be tendered, fill in the number of Shares that are to be
tendered in the box entitled "Number of Shared Tendered." In this case, new
Share Certificates for the Shares that were evidenced by your old Share
Certificates, but were not tendered by you, will be sent to you, unless
otherwise provided in the
8
<PAGE>
appropriate box on this Letter of Transmittal, as soon as practicable after the
Expiration Date. All Shares represented by Share Certificates delivered to the
Depositary will be deemed to have been tendered unless indicated.
5. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written
on the face of the certificate(s) without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are held of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations.
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, such person should so indicate when signing, and
proper evidence satisfactory to Purchaser of the authority of such person so to
act must be submitted. If this Letter of Transmittal is signed by the
registered holder(s) of the Shares listed and transmitted hereby, no
endorsements of certificates or separate stock powers are required unless
payment is to be made or certificates for Shares not tendered or not accepted
for payment are to be issued in the name of a person other than the registered
holder(s). Signatures on any such Share 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 holder(s) of the certificate(s) listed and transmitted hereby, the
certificate(s) must be endorsed or accompanied by appropriate stock powers, in
either case signed exactly as the name(s) of the registered holder(s) appear(s)
on the certificate(s). Signature(s) on any such Share Certificates or stock
powers must be guaranteed by an Eligible Institution.
6. Stock Transfer Taxes. Except as otherwise provided in this Instruction
6, Purchaser will pay all stock transfer taxes with respect to the transfer and
sale of any Shares to it or its order pursuant to the Offer. If, however,
payment of the purchase price is to be made to, or if certificate(s) for Shares
not tendered or not accepted for payment are to be registered in the name of,
any person other than the registered holder(s), or if tendered certificate(s)
are registered in the name of any person other than the person(s) signing this
Letter of Transmittal, the amount of any stock transfer taxes (whether imposed
on the registered holder(s) or such other person) payable on account of the
transfer to such other person will be deducted from the purchase price of such
Shares purchased unless evidence satisfactory to Purchaser of the payment of
such taxes, or exemption therefrom, is submitted.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the certificate(s) evidencing the Shares
tendered hereby.
7. Special Payment and Delivery Instructions. If a check is to be issued
in the name of, and/or certificates for Shares not tendered or not accepted for
payment are to be issued or returned to, a person other than the signer of this
Letter of Transmittal or if a check and/or such certificates are to be returned
to a person other than the person(s) signing this Letter of Transmittal or to
an address other than that shown in this Letter of Transmittal, the appropriate
boxes on this Letter of Transmittal must be completed.
8. Substitute Form W-9. Under the federal income tax laws, the Depositary
will be required to withhold 31% of the amount of any payments made to certain
shareholders pursuant to the Offer. In order to avoid such backup withholding,
each tendering shareholder, and, if applicable, each other payee, must provide
the Depositary with such shareholder's or payee's correct taxpayer
identification number and certify that such shareholder or payee is not subject
to backup withholding by completing the Substitute Form W-9 set forth above. In
general, if a shareholder or payee is an individual, the taxpayer
identification number is the Social Security Number of such individual. If the
Depositary is not provided with the correct taxpayer identification number, the
shareholder or payee may be subject to a $50 penalty imposed by the Internal
Revenue Service. Certain shareholders or payees (including, among others, all
corporations) are not subject to these backup withholding and reporting
requirements. In order to satisfy the Depositary that a shareholder or payee
qualifies as an exempt recipient, such shareholder or payee must submit a
statement, signed under penalties of perjury, attesting to that individual's
exempt status. For further information concerning backup withholding
9
<PAGE>
and instructions for completing the Substitute Form W-9 (including how to
obtain a taxpayer identification number if you do not have one, and how to
complete the Substitute Form W-9 if Shares are held in more than one name),
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9. Shareholders who are non-resident aliens or
foreign entities not subject to backup withholding must complete a Form W-8BEN
(Certificate of Foreign Status) (and not a Substitute Form W-9) and give the
Depositary a completed Form W-8BEN prior to the receipt of any payments to
avoid backup withholding. Such Form W-8BEN may be obtained from the Depositary.
Failure to complete the Substitute Form W-9 will not, by itself, cause
Shares or Share Certificates to be deemed invalidly tendered, but may require
the Depositary to withhold 31% of the amount of any payments made pursuant to
the Offer. Backup withholding is not an additional federal income tax. Rather,
the federal income tax liability of a person 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 provided that the required
information is furnished to the Internal Revenue Service. NOTE: FAILURE TO
COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF
31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
9. Requests for Assistance or Additional Copies. Questions and requests
for assistance or additional copies of the Offer to Purchase, this Letter of
Transmittal, the Notice of Guaranteed Delivery, IRS Form W-8 and the Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 may
be directed to the Information Agent or Dealer Manager at the addresses and
phone numbers set forth below, or from brokers, dealers, commercial banks or
trust companies.
10. Waiver of Conditions. Subject to the terms and conditions of the
Merger Agreement (as defined in the Offer to Purchase), Purchaser reserves the
right, in its sole discretion, to waive, at any time or from time to time, any
of the specified conditions of the Offer, in whole or in part, in the case of
any Shares tendered (other than the Minimum Condition).
11. Lost, Destroyed or Stolen Certificates. If any certificate
representing Shares has been lost, destroyed or stolen, the shareholder should
promptly notify StockTrans, Inc., in its capacity as transfer agent for the
shares (telephone number: (610) 649-7300). The shareholder will then be
instructed as to the steps that must be taken in order to replace the
certificate. This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost or destroyed certificates
have been followed.
IMPORTANT:
THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE HEREOF)
TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A
BOOK-ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST
BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER
CERTIFICATES FOR TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES
MUST BE DELIVERED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH
CASE PRIOR TO THE EXPIRATION DATE, OR THE TENDERING SHAREHOLDER MUST COMPLY
WITH THE PROCEDURES FOR GUARANTEED DELIVERY.
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The Information Agent is:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, NY 10010
(212) 929-5500
or
Call Toll Free: (800) 322-2885
The Dealer Manager is:
LAZARD FRERES & CO. LLC
30 Rockefeller Plaza
New York, NY 10020
Call Collect: (212) 632-6717
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