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SECURTIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13 (e) OF THE SECURITIES EXCHANGE ACT OF 1934)
(AMENDMENT NO. 4)
(FINAL AMENDMENT)
AQUILA GAS PIPELINE CORPORATION
(NAME OF SUBJECT COMPANY)
UTILICORP UNITED INC.
AQUILA ENERGY CORPORATION
AEC ACQUISITIONS, INC.*
(BIDDERS)
COMMON STOCK, PAR VALUE OF $.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
03839B10
(CUSIP NUMBER OF CLASS OF SECURITIES)
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ROBERT K. GREEN
PRESIDENT AND CHIEF OPERATING OFFICER
UTILICORP UNITED INC.
20 WEST NINTH STREET
KANSAS CITY, MISSOURI 64105
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
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COPY TO:
DENNIS P. WILBERT, ESQ.
JEFFREY T. HAUGHEY, ESQ.
BLACKWELL SANDERS PEPER MARTIN LLP
2300 MAIN STREET
KANSAS CITY, MISSOURI 64108
* On May 14, 1999, AEC Acquisitions, Inc. merged with and into Aquila Gas
Pipeline Corporation and, as a result of such merger, ceased to exist as a
separate entity.
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AEC Acquisitions, Inc.,* a Delaware corporation ("Purchaser") and a
wholly-owned subsidiary of Aquila Energy Corporation, a Delaware corporation
("Aquila"), which in turn is a wholly-owned subsidiary of UtiliCorp United Inc.,
a Delaware corporation ("Parent"), Aquila and Parent hereby amend and supplement
their Rule 13e-3 Transaction Statement on Schedule 13E-3 filed with the
Securities and Exchange Commission (the "Commission") on April 9, 1999, as
amended by Amendments No. 1, No. 2 and No. 3 thereto filed with the Commission
on April 23, 1999, May 10, 1999, and May 14, 1999, respectively (as so amended,
the "Schedule 13E-3"). Capitalized terms not defined herein have the meaning
ascribed to them in the Schedule 13E-3. The item numbers, captions and responses
thereto set forth below are in accordance with the requirements of Schedule
13E-3.
ITEM 16. ADDITIONAL INFORMATION
Item 16 of the Schedule 13E-3 is hereby amended and supplemented by
adding the following information thereto:
On May 21, 1999, in connection with the merger of Purchaser with and
into the Company, a Notice of Merger and Appraisal Rights Available to
Former Stockholders of the Company was mailed, together with a related
Letter of Transmittal and other documents, to holders of record of
Shares on May 14, 1999.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS
Item 17 of the Schedule 13E-3 is hereby amended and supplemented
by adding the following exhibits:
(d)(1) Notice of Merger and Appraisal Rights
(d)(2) Letter of Transmittal
(d)(3) Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9
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* On May 14, 1999, AEC Acquisitions, Inc. merged with and into the Company
and, as a result of such merger, ceased to exist as a separate entity.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
Dated: May 26, 1999 UTILICORP UNITED INC.
By: /s/ Robert K. Green
Name: Robert K. Green
Title: President and Chief Operating Officer
AQUILA ENERGY CORPORATION
By: /s/ Robert K. Green
Name: Robert K. Green
Title: Authorized Representative
AEC AQUISITIONS, INC. *
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* On May 14, 1999, AEC Acquisitions, Inc. merged with and into Aquila Gas
Pipeline Corporation and, as a result of such merger, ceased to exist as a
separate entity.
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EXCERPT FROM RESOLUTIONS OF AQUILA ENERGY CORPORATION
RESOLVED, that the proposal to offer to purchase all of the outstanding
shares of common stock of Aquila Gas Pipeline Corporation not currently held by
UtiliCorp United Inc. ("UCU") or affiliates of the UCU ("AQP Common Stock") at a
price of $ 8.00 per share, and on substantially the terms and conditions
presented to this meeting, with such modifications thereto as any of the
following officers Authorized Representative (as defined below) shall deem to be
necessary or desirable (the "Tender Offer") be, and the same hereby is, approved
and authorized, and that the Chairman, President, any Vice-President or
Assistant Vice President, the Secretary or the Treasurer of the Company, or
Robert K. Green (the "Authorized Representative") be, and hereby are, authorized
and directed to do all things deemed necessary or desirable to carry out the
Tender Offer.
RESOLVED FURTHER, that the aforementioned officers of the Company and the
Authorized Representative be, and hereby are, authorized and empowered to
prepare, execute, and file with the appropriate regulatory agencies, stock
exchanges and other bodies, all forms, schedules, and other documents (including
any and all amendments, exhibits, schedules, supplements, and other documents
and papers) which any of such officers or the Authorized Representative deems
necessary or desirable in connection with the Tender Offer, and to do such other
acts and things which in the judgment of any of such officers or the Authorized
Representative may be necessary or desirable in connection with the
commencement, extension, or consummation of the Tender Offer.
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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(d)(1) Notice of Merger and Appraisal Rights
(d)(2) Letter of Transmittal
(d)(3) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9
EXHIBIT (d)(1)
AQUILA GAS PIPELINE CORPORATION
ONE INTERNATIONAL CENTRE
100 N.E. LOOP 410, SUITE 1000
SAN ANTONIO, TEXAS 78216-4754
NOTICE OF MERGER AND APPRAISAL RIGHTS
AVAILABLE TO FORMER STOCKHOLDERS OF
AQUILA GAS PIPELINE CORPORATION
May 21, 1999
To the Holders of Record as of May 14, 1999 of Certificates Formerly
Representing Common Stock of Aquila Gas Pipeline Corporation ("Former
Stockholders"):
NOTICE IS HEREBY GIVEN pursuant to Sections 253(d) and 262(d)(2) of the
General Corporation Law of the State of Delaware (the "DGCL") that, effective
May 14, 1999 (the "Effective Time"), AEC Acquisitions, Inc., a Delaware
corporation ("AEC Acquisitions") and a wholly-owned subsidiary of Aquila Energy
Corporation, a Delaware corporation ("Aquila Energy"), and an indirect
wholly-owned subsidiary of UtiliCorp United Inc., a Delaware corporation
("UtiliCorp"), was merged (the "Merger") with and into Aquila Gas Pipeline
Corporation, a Delaware corporation (the "Company"). Immediately prior to the
Effective Time, AEC Acquisitions owned approximately 93% of the outstanding
shares of common stock, par value $.01 per share (the "Shares"), of the Company.
The Merger was effected pursuant to Section 253 of the DGCL. Pursuant to Section
253 of the DGCL, no action was required by stockholders of the Company (other
than AEC Acquisitions) for the Merger to become effective.
As a result of the Merger, the Company is now a wholly-owned subsidiary of
Aquila Energy and an indirect wholly-owned subsidiary of UtiliCorp. Pursuant to
the terms of the Merger, each Share outstanding immediately prior to the
Effective Time (other than Shares held by the Company in its treasury and Shares
held by AEC Acquisitions) has been converted, subject to the appraisal rights
described below, into the right to receive from the Company $8.00 in cash,
without interest thereon, upon surrender of certificates for such Shares to The
Bank of New York, as Paying Agent (the "Paying Agent"), in accordance with the
instructions set forth in the enclosed letter of transmittal (the "Letter of
Transmittal"). As a result of the Merger, the stock transfer books of the
Company were closed at the Effective Time of the Merger. Accordingly, the
Company cannot record any further transfers of Shares on its books.
SURRENDER OF CERTIFICATES
The Paying Agent, on behalf of the Company, will accept the surrender of
certificates for Shares in exchange for the $8.00 per Share cash payment.
TO RECEIVE THE $8.00 PER SHARE CASH PAYMENT FOR A FORMER STOCKHOLDER'S
SHARES, THE FORMER STOCKHOLDER OR A DULY AUTHORIZED REPRESENTATIVE MUST (A)
DELIVER THE ENCLOSED LETTER OF
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TRANSMITTAL, APPROPRIATELY COMPLETED, TO THE PAYING AGENT AND (B) SURRENDER SUCH
SHARES BY DELIVERING THE STOCK CERTIFICATE OR CERTIFICATES THAT, PRIOR TO THE
MERGER, HAD EVIDENCED SUCH SHARES TO THE PAYING AGENT, ALL AS SET FORTH IN THE
LETTER OF TRANSMITTAL AND THE ACCOMPANYING INSTRUCTIONS.
Each person who does NOT plan to seek an appraisal of such person's Shares
is urged to execute (or, if such person is not the record holder of such Shares,
to arrange for such record holder or such holder's duly authorized
representative to execute) and mail postage paid or deliver a Letter of
Transmittal, together with the stock certificate or certificates that, prior to
the Merger, evidenced such person's Shares, to the Paying Agent at one of the
addresses set forth in the Letter of Transmittal. Former Stockholders should
note and follow carefully the instructions set forth in the Letter of
Transmittal. FORMER STOCKHOLDERS SHOULD ALSO NOTE THAT SURRENDER TO THE PAYING
AGENT OF STOCK CERTIFICATES FOR THEIR SHARES MAY CONSTITUTE A WAIVER OF
APPRAISAL RIGHTS UNDER THE DGCL.
The method of delivery of the Letter of Transmittal, stock certificates
formerly representing Shares and all other required documents is at the election
and risk of the Former Stockholder. IF A FORMER STOCKHOLDER DECIDES TO SEND
STOCK CERTIFICATES BY MAIL, IT IS RECOMMENDED THAT SUCH STOCK CERTIFICATES BE
SENT BY REGISTERED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED.
APPRAISAL RIGHTS
Former Stockholders are entitled to appraisal rights under Section 262 of
the DGCL ("Section 262"), provided that they comply with the conditions
established by Section 262.
Section 262 is reprinted in its entirety as Annex A to this Notice. The
following discussion is not a complete statement of the law relating to
appraisal rights and is qualified in its entirety by reference to Annex A. This
discussion and Annex A should be reviewed carefully by any Former Stockholder
who wishes to exercise statutory appraisal rights or who wishes to preserve the
right to do so, as failure to comply with the procedures set forth in Section
262 will result in the loss of appraisal rights.
A record holder of Shares who makes the demand described below with respect
to such Shares, and who otherwise complies with the statutory requirements of
Section 262 will be entitled to an appraisal by the Delaware Court of Chancery
(the "Delaware Court") of the fair value of his or her Shares. All references in
this summary of appraisal rights to a "stockholder" or "holders of Shares" or
"Former Stockholders" are to the record holder or holders of Shares.
Under Section 262, when a merger is accomplished pursuant to Section 253 of
the DGCL, either before or within 10 days after the effective date of the merger
each constituent corporation (or, after the effective date, the surviving
constituent corporation) must notify each stockholder entitled to appraisal
rights of the merger and that appraisal rights are available to
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such stockholders and include in each such notice a copy of Section 262. This
Notice shall constitute such notice to the record holders of Shares.
Holders of Shares who desire to exercise their appraisal rights must
deliver a written demand for appraisal to the Company within 20 calendar days
after the date of mailing of this notice. A demand for appraisal must be
executed by or on behalf of the stockholder of record and must reasonably inform
the Company of the identity of the stockholder of record and that such
stockholder intends thereby to demand appraisal.
A stockholder who elects to exercise appraisal rights should mail or
deliver his or her written demand to:
Aquila Gas Pipeline Corporation
One International Centre
100 N.E. Loop 410, Suite 1000
San Antonio, Texas 78216-4754
Attention: Donald J. LaBauve
Corporate Secretary
A person having a beneficial interest in Shares that are held of record in
the name of another person, such as a broker, fiduciary, depositary or other
nominee, must act promptly to cause the record holder to follow the steps
summarized herein properly and in a timely manner to perfect appraisal rights.
If the Shares are owned of record by a person other than the beneficial owner,
including a broker, fiduciary (such as a trustee, guardian or custodian),
depositary or other nominee, such demand must be executed by or for the record
owner. If the Shares are owned of record by more than one person, as in a joint
tenancy or tenancy in common, such demand must be executed by or for all joint
owners. An authorized agent, including an agent for two or more joint owners,
may execute the demand for appraisal for a stockholder of record; however, the
agent must identify the record owner and expressly disclose the fact that, in
exercising the demand, such person is acting as agent for the record owner. If a
stockholder holds Shares through a broker who in turn holds the shares through a
central securities depository nominee such as Cede & Co., a demand for appraisal
of such Shares must be made by or on behalf of the depository nominee and must
identify the depository nominee as record holder.
A record holder, such as a broker, fiduciary, depositary or other nominee,
who holds Shares as a nominee for others, may exercise appraisal rights with
respect to the Shares held for all or less than all beneficial owners of Shares
as to which such person is the record owner. In such case, the written demand
must set forth the number of Shares covered by such demand. When the number of
Shares is not expressly stated, the demand will be presumed to cover all Shares
outstanding in the name of such record owner.
Within 120 days after the Effective Time, either the Company or any Former
Stockholder who has complied with the required conditions of Section 262 may
file a petition in the Delaware Court, with a copy served on the Company in the
case of a petition filed by a Former
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Stockholder, demanding a determination of the fair value of the Shares of all
Former Stockholders seeking statutory appraisal rights. There is no present
intent on the part of the Company to file an appraisal petition and Former
Stockholders seeking to exercise appraisal rights should not assume that the
Company will file such a petition or that the Company will initiate any
negotiations with respect to the fair value of such Shares. Accordingly, Former
Stockholders who desire to have their Shares appraised must initiate any
petitions necessary for the perfection of their appraisal rights within the time
periods and in the manner prescribed in Section 262. Within 120 days after the
Effective Time, any Former Stockholder who has theretofore complied with the
applicable provisions of Section 262 will be entitled, upon written request, to
receive from the Company a statement setting forth the aggregate number of
Shares with respect to which demands for appraisal were received by the Company
and the number of holders of such shares. Such statement must be mailed within
10 days after the later of (i) the receipt of the written request therefor by
the Company, or (ii) the expiration of the 20-day period following the mailing
of this Notice.
If a petition for an appraisal is timely filed, at the hearing on such
petition, the Delaware Court will determine which stockholders are entitled to
appraisal rights. The Delaware Court may require the Former Stockholders who
have demanded an appraisal for the Shares and who hold certificates formerly
representing Shares to submit such certificates to the Register in Chancery for
notation thereon of the pendency of the appraisal proceedings; and if any Former
Stockholder fails to comply with such direction, the Delaware Court may dismiss
the proceedings as to Former Stockholder. When proceedings are not dismissed,
the Delaware Court will appraise the Shares owned by Former Stockholders,
determining the fair value of such Shares exclusive of any element of value
arising from the accomplishment or expectation of the Merger, together with a
fair rate of interest, if any, to be paid upon the amount determined to be the
fair value.
No representation is made as to the outcome of the appraisal of fair value
as determined by the Court, and Former Stockholders should recognize that such
an appraisal could result in a determination of a value higher or lower than, or
equal to, the Merger consideration of $8.00 per share. Moreover, the Company
does not anticipate offering more than $8.00 per share to any Former Stockholder
exercising appraisal rights and reserves the right to assert, in any appraisal
proceeding, that, for purposes of Section 262, the "fair value" of a Share is
less than $8.00 per share. In determing the "fair value", the Delaware Court is
required to take into account all relevant factors. In Weinberger v. UOP, Inc.,
the Delaware Supreme Court discussed the factors that could be considered in
determining fair value in an appraisal, stating that "proof of value by any
techniques or methods which are generally considered acceptable in the financial
community and otherwise admissible in court" should be considered and that
"[f]air price obviously requires consideration of all relevant factors involving
the value of a company." The Delaware Supreme Court has stated that in making
this determination of fair value the court must consider market value, asset
value, dividends, earnings prospects, the nature of the enterprise and any other
facts which could be ascertained as of the date of the merger which throw any
light on future prospects of the merged corporation. Section 262 provides that
fair value is to be "exclusive of any element of value arising from the
accomplishment or expectation of the merger." In Cede & Co. v. Technicolor,
Inc., the Delaware Supreme Court stated that such exclusion is a "narrow
exclusion [that] does not encompass known elements of value," but which rather
applies only to
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the speculative elements of value arising from such accomplishment or
expectation. In Weinberger, the Delaware Supreme Court construed Section 262 to
mean that "elements of future value, including the nature of the enterprise,
which are known or susceptible of proof as of the date of the merger and not the
product of speculation, may be considered."
The cost of the appraisal proceeding may be determined by the Delaware
Court and taxed against the parties as the Delaware Court deems equitable in the
circumstances. However, costs do not include attorneys' and expert witness fees.
Each Former Stockholder who seeks appraisal of his or her shares is responsible
for his or her attorneys' and expert witness expenses, although, upon
application of a Former Stockholder of the Company, the Delaware Court may order
that all or a portion of the expenses incurred by any such Former Stockholder in
connection with the appraisal proceeding, including without limitation,
reasonable attorneys' fees and the fees and expenses of experts, be charged pro
rata against the value of all shares of stock entitled to appraisal.
Any Former Stockholder who has duly demanded appraisal in compliance with
Section 262 will not be entitled to vote for any purpose any Shares subject to
such demand or to receive payment of dividends or other distributions on such
Shares, except for dividends or distributions payable to stockholders of record
at a date prior to the Effective Time.
At any time within 60 days after the Effective Time, any Former Stockholder
who has demanded appraisal of his or her Shares will have the right to withdraw
such demand for appraisal and to accept $8.00 per share. After this period, such
stockholder may withdraw such demand for appraisal only with the consent of the
Company. If no petition for appraisal is filed with the Delaware Court within
120 days after the Effective Time, Former Stockholders' rights to appraisal
shall cease, and all Former Stockholders will be entitled to receive $8.00 per
share.
Any Former Stockholder may withdraw his or her demand for appraisal by
delivering to the Company a written withdrawal of his or her demand for
appraisal and acceptance of the Merger Consideration, except (i) that any such
attempt to withdraw made more than 60 days after the Effective Time will require
written approval of the Company and (ii) that no appraisal proceeding in the
Delaware Court shall be dismissed as to any stockholder without the approval of
the Delaware Court, and such approval may be conditioned upon such terms as the
Delaware Court deems just.
ADDITIONAL INFORMATION
AEC Acquistions, Aquila Energy, and UtiliCorp conducted an offer to
purchase any and all outstanding Shares at a price per share of $8.00, net to
the seller in cash (the "Offer"). In making their decisions as to the exercise
of appraisal rights, Former Stockholders are urged to review the Offer to
Purchase, dated April 9, 1999 (the "Offer to Purchase"), which was previously
mailed on April 9, 1999 to stockholders in connection with the Offer and the
Schedule 14D-9 filed by the Company on April 22, 1999. Copies of the Offer to
Purchase, as well as the related combined Schedule 14D-1 and Schedule 13D; the
Schedule 13E-3; the Schedule 14D-9; and all amendments thereto filed with the
Securities and Exchange Commission (the "Commission") in connection with the
Offer, can be obtained by written request directed to
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Donald J. LaBauve, Corporate Secretary, Aquila Gas Pipeline Corporation, One
International Centre,100 N.E. Loop 410, Suite 1000, San Antonio, Texas
78216-4754 or by calling (210) 476-1100.
INFORMATION CONCERNING THE COMPANY
Prior to the Merger, the Company was subject to the information reporting
requirements of the Securities Exchange Act of 1934, as amended, and, in
accordance therewith, was required to file reports and other information with
the Commission relating to the Company's business, financial condition and other
matters. These reports and other information are available for inspection at the
public reference facilities maintained by the Commission located at Judiciary
Plaza, 450 Fifth Street, N.W. Washington, D.C. 20549, and at the regional
offices of the Commission located at Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661, and Seven World Trade Center, Suite 1300,
New York, New York 10048. The Commission also maintains a World Wide Web site on
the Internet at http://www.sec.gov that contains reports and other information
regarding registrants that file electronically with the Commission.
The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1999, and the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, are incorporated herein by reference. The Company will
provide without charge to each person to whom a copy of this Notice of Merger
and Appraisal Rights is mailed, upon the oral or written request of any such
person, a copy of all documents incorporated herein by reference (other than
exhibits to such documents). Requests should be directed to Donald J. LaBauve,
Corporate Secretary, Aquila Gas Pipeline Corporation, One International
Centre,100 N.E. Loop 410, Suite 1000, San Antonio, Texas 78216-4754.
AQUILA GAS PIPELINE CORPORAITON
/s/ F. Joseph Becraft
F. Joseph Becraft, President
Date: May 21, 1999
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ANNEX A
Set forth below is Section 262 of the General Corporation Law of the State
of Delaware regarding appraisal rights.
Section 262 Appraisal Rights --
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to sec. 228 of
this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsection (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a non-stock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a non-stock corporation; and
the words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions thereof,
solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to sec. 251 (other than a merger effected pursuant to sec.
251(g) of this title), sec. 252, sec. 254, sec. 257, sec. 258, sec. 263 or sec.
264 of this title:
(1) Provided, however, that no appraisal rights under this section
shall be available for the shares of any class or series of stock, which
stock, or depository receipts in respect thereof, at the record date fixed
to determine the stockholders entitled to receive notice of and to vote at
the meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require
for its approval the vote of the stockholders of the surviving corporation
as provided in subsection (f) of sec. 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required
by the terms of an agreement of merger or consolidation pursuant to sec.
251, 252, 254, 257, 258, 263 and 264 of this title to accept for such stock
anything except:
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a. Shares of stock of the corporation surviving or resulting
from such merger or consolidation, or depository receipts in
respect thereof;
b. Shares of stock of any other corporation, or depository
receipts in respect thereof, which shares of stock (or
depository receipts in respect thereof) or depository
receipts at the effective date of the merger or
consolidation will be either listed on a national securities
exchange or designated as a national market system security
on an interdealer quotation system by the National
Association of Securities Dealers, Inc. or held of record by
more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b.
of this paragraph; or
d. Any combination of the shares of stock, depository receipts
and cash in lieu of fractional shares or fractional
depository receipts described in the foregoing subparagraphs
a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under sec. 253 of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall
be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights
are provided under this section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to
the meeting, shall notify each of its stockholders who was such on the
record date for such meeting with respect to shares for which appraisal
rights are available pursuant to subsections (b) or (c) hereof that
appraisal rights are available for any or all of the shares of the
constituent corporations, and shall include in such notice a copy of this
section. Each stockholder electing to demand the appraisal of such
stockholder's shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for appraisal of
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such stockholder's shares. Such demand will be sufficient if it reasonably
informs the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of such stockholder's
shares. A proxy or vote against the merger or consolidation shall not
constitute such a demand. A stockholder electing to take such action must
do so by a separate written demand as herein provided. Within 10 days after
the effective date of such merger or consolidation, the surviving or
resulting corporation shall notify each stockholder of each constituent
corporation who has complied with this subsection and has not voted in
favor of or consented to the merger or consolidation of the date that the
merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to sec. 228
or sec. 253 of this title, each constituent corporation, either before the
effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights
of the approval of the merger or consolidation and that appraisal rights
are available for any or all shares of such class or series of stock of
such constituent corporation, and shall include in such notice a copy of
this section; provided that, if the notice is given on or after the
effective date of the merger or consolidation, such notice shall be given
by the surviving or resulting corporation to all such holders of any class
or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective
date of the merger or consolidation, shall, also notify such stockholders
of the effective date of the merger or consolidation. Any stockholder
entitled to appraisal rights may, within twenty days after the date of
mailing of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation, either
(i) each such constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of the holders
of any class or series of stock of such constituent corporation that are
entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send
such a second notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is sent more
than 20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holder's shares in accordance with
this subsection. An affidavit of the secretary or assistant secretary or of
the transfer agent of the corporation that is required to give either
notice that such notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be
not more than 10 days prior to the date the notice is given, provided, that
if the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the
day on which the notice is given.
9
<PAGE>
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise entitled to
appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw such stockholder's demand for appraisal and to accept the terms offered
upon the merger or consolidation. Within 120 days after the effective date of
the merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after such stockholder's written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency
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<PAGE>
of the proceeding. Upon application by the surviving or resulting corporation or
by any stockholder entitled to participate in the appraisal proceeding, the
Court may, in its discretion, permit discovery or other pretrial proceedings and
may proceed to trial upon the appraisal prior to the final determination of the
stockholder entitled to an appraisal. Any stockholder whose name appears on the
list filed by the surviving or resulting corporation pursuant to subsection (f)
of this section and who has submitted such stockholder's certificates of stock
to the Register in Chancery, if such is required, may participate fully in all
proceedings until it is finally determined that such stockholder is not entitled
to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of such stockholder's
demand for an appraisal and an acceptance of the merger or consolidation, either
within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the
Court, and such approval may be conditioned upon such terms as the Court deems
just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
EXHIBIT (d)(2)
LETTER OF TRANSMITTAL
To Accompany Certificates
Formerly Representing Shares of Common Stock
of
AQUILA GAS PIPELINE CORPORATION
The Paying Agent:
THE BANK OF NEW YORK
(800) 507-9357
By Mail: By Hand or Overnight Courier:
Tender & Exchange Department Tender & Exchange Department
P. O. Box 11248 101 Barclay Street
Church Street Station Receive and Deliver Window
New York, New York 10286-1248 New York, New York 10286
THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
Ladies and Gentlemen:
On May 14, 1999, AEC Acquisitions, Inc., a Delaware corporation ("Merger
Sub"), and a wholly-owned, indirect subsidiary of UtiliCorp United Inc., a
Delaware corporation ("UtiliCorp"), was merged (the "Merger") with and into
Aquila Gas Pipeline Corporation, a Delaware corporation ("AQP"), pursuant to the
terms of the Plan of Merger adopted by Merger Sub. As a result of the Merger,
holders, other than the Merger Sub, of certificates formerly representing shares
of Common Stock, par value $.01 per share of AQP (collectively, the "Shares"),
are entitled to receive $8.00 in cash without interest (the "Merger
Consideration"), for each Share.
To receive the Merger Consideration, please complete this Letter of
Transmittal and deliver it along with your certificate(s) representing former
Shares (the "Certificates") by mail, hand delivery or overnight courier to The
Bank of New York (the "Paying Agent") at its address 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 undersigned, the registered holder(s) of the following Certificate(s),
or the transferee or assignee of such registered holder(s), hereby surrenders
such Certificate(s) in exchange for the Merger Consideration.
<PAGE>
<TABLE>
<CAPTION>
DESCRIPTION OF CERTIFICATES SURRENDERED
Name(s) and Address(es) of Registered Holder(s) Certificate(s) Surrendered
(Please fill in, if blank, exactly as name(s) (Attached additional signed
appear(s) on Certificate(s)) list if necessary)
<S> <C> <C>
Certificate Number(s) Number of Former Shares
Evidenced by
Certificate(s)
Total Shares
</TABLE>
[ ] If one or more Certificates representing former Shares that you own
have been lost or destroyed, check this box and see Instruction 11. Please fill
out the remainder of this Letter of Transmittal and indicate here the number of
former Shares evidenced by the lost or destroyed Certificates:
__________________________________________________________________.
The undersigned understands that if the undersigned holds more than one
Certificate, those Certificates must be exchanged in a single transaction for
the Merger Consideration to which the undersigned is entitled.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to deliver and transfer the Certificates(s) delivered
hereby, and that the Shares represented by such Certificate(s) are free and
clear of all liens, restrictions, charges, irrevocable proxies (except as
granted herein) and encumbrances and are not subject to any adverse claim. The
undersigned, upon request, will execute and deliver any additional documents
deemed by the Paying Agent or AQP to be necessary or desirable to complete the
delivery and transfer of the Certificate(s) delivered hereby.
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 Shares, with full power of 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 to the
stock transfer agent of AQP. All authority conferred or agreed to be conferred
in this Letter of Transmittal will not be affected by, and will survive, the
death or incapacity of the undersigned and all such authority and all
obligations of the undersigned conferred herein will be binding upon the
successors, assigns, heirs, executors, administrators and legal representatives
of the undersigned.
The undersigned understands that surrender is not made in acceptable form
until the receipt by the Paying Agent of this Letter of Transmittal (or a
facsimile hereof), properly
2
<PAGE>
completed and signed, and of the Certificate(s), together with all accompanying
evidences of authority in form satisfactory to the Paying Agent and any other
required documents. The undersigned hereby acknowledges that delivery of the
Certificate(s) will be effected and risk of loss and title to the Certificate(s)
will pass only upon proper delivery thereof to the Paying Agent. All questions
as to the validity, form and eligibility of any surrender of Certificate(s)
hereunder will be determined by AQP, and such determination will be final and
binding. Delivery of the Certificate(s) for surrender and cancellation is
irrevocable.
The undersigned understands that the Merger Consideration will be paid as
promptly as practicable after the surrender of Certificate(s) is made in
acceptable form.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the Merger Consideration in the
name(s) of the registered holder(s) appearing above under "Description of
Certificates Surrendered." Similarly, unless otherwise indicated in the box
entitled "Special Delivery Instructions," please mail the check(s) for the
Merger Consideration to the address(es) of the registered holder(s) appearing
above under "Description of Certificates Surrendered." In the event that the
boxes entitled "Special Payment Instructions" and "Special Delivery
Instructions" are both completed, please issue the check for the Merger
Consideration in the name(s) of, and delivery such check to, the person(s) so
indicated.
3
<PAGE>
SIGN HERE
(To be completed by all persons surrendering Certificates and executing this
Letter of Transmittal. Please also complete Substitute Form W-9 on page 11.)
________________________________________________________________________________
________________________________________________________________________________
Signature(s) of Registered Holder(s)
Date: ________________________________________________________________________
(Must be signed by registered 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 registered holder(s) by Certificates and documents transmitted herewith.
If signature is by an agent, attorney-in-fact, administrator, executor,
guardian, trustee, officer of a corporation or any other person acting in a
fiduciary or representative capacity, please set forth full title.) (See
Instruction 5.)
Name(s): ______________________________________________________________________
________________________________________________________________________________
(Please Print)
Capacity (full title): _________________________________________________________
Address: _____________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Area Code and Telephone No. (Business): ________________________________________
Taxpayer Identification or Social Security No.: ________________________________
SIGNATURE GUARANTEE
(Complete Only If Required - See Instructions 4 and 7)
Authorized Signature: __________________________________________________________
Name of Firm: _________________________________________________________________
Date: _________________________________________________________________________
4
<PAGE>
PLEASE READ CAREFULLY THE INSTRUCTIONS BELOW. IF PAYMENT OF THE MERGER
CONSIDERATION IS TO BE MADE TO SOMEONE OTHER THAN THE REGISTERED HOLDER(S), OR
IS TO BE DELIVERED TO AN ADDRESS OTHER THAN THE REGISTERED HOLDER'S ADDRESS, A
SIGNATURE GUARANTEE AND ADDITIONAL INFORMATION ARE REQUIRED. SEE INSTRUCTIONS 4
AND 7 BELOW.
SPECIAL PAYMENT INSTRUCTIONS
(See Instruction 4)
To be completed ONLY if a check for the Merger Consideration is to be made
payable to someone other than the registered holder(s) set forth above.
ISSUE CHECK TO:
Name: ____________________________________
(Please Print)
Address: __________________________________
___________________________________________
(Include Zip Code)
___________________________________________
(Taxpayer Identification or Social Security
Number)
(You must complete Substitute Form W-9 and Signature Guarantee if you complete
this box.)
SPECIAL DELIVERY INSTRUCTIONS
(See Instruction 7)
To be completed ONLY if a check is to be delivered to the registered holder(s)
or someone other than the registered holder(s) at an address other than as set
forth above.
DELIVER CHECK TO:
Name: _______________________________________
(Please Print)
Address: ____________________________________
_____________________________________________
(Include Zip Code)
______________________________________________
(Taxpayer Identification or Social Security
Number)
(You must complete Substitute Form W-9 and Signature Guarantee if you complete
this box.)
5
<PAGE>
INSTRUCTIONS FOR SURRENDERING CERTIFICATES
All Certificates should be forwarded at one time for exchange in accordance
with the following instructions.
1. DELIVERY INSTRUCTIONS. This Letter of Transmittal (or a facsimile hereof),
properly completed, dated and executed, with any required signature
guarantees, and any other documents required by this Letter of Transmittal,
accompanied by all Certificates currently held by you, should be sent by
mail, hand delivery or overnight courier to the Paying Agent at its address
set forth on the first page hereof. The method of delivery of Certificates,
this Letter of Transmittal and all other required documents is at the
option and sole risk of the shareholder, and the delivery will be deemed
made only when actually received by the Paying Agent. If such delivery is
by mail, registered or certified mail with return receipt requested,
properly insured, is recommended. For your convenience, a return envelope
addressed to the Paying Agent is enclosed.
2. SIGNATURES. This Letter of Transmittal must be signed by or on behalf of
the registered holder(s) of the Certificate(s) transmitted. If the Shares
represented by such Certificate(s) are registered in the names of two or
more persons, all such persons must sign this Letter of Transmittal. The
signature(s) on this Letter of Transmittal must correspond exactly with the
name(s) written on the face of the Certificate(s) transmitted, without
alteration, enlargement or any other change whatsoever, unless the Shares
described in this Letter of Transmittal have been assigned by the former
holder(s), in which event this Letter of Transmittal should be signed in
exactly the same form as the name of the last transferee appears in the
transfers attached to or endorsed on the Certificate(s). See Instructions
4(a) and 4(b). If the Shares to be surrendered are registered in different
names on different Certificates, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal as there are different
registrations of Certificates.
3. PAYMENT OF MERGER CONSIDERATION TO SAME NAME. If your check representing
the Merger Consideration is to be made payable to the registered holder(s)
as inscribed on the surrendered Certificate(s), the surrendered
Certificate(s) need not be endorsed and no guarantee of the signature(s) on
this Letter of Transmittal is required. For corrections of name and change
in name not involving change in ownership, see Instruction 4(c).
4. PAYMENT OF MERGER CONSIDERATION TO DIFFERENT NAMES. If your check
representing the Merger Consideration is to be made payable to someone
other than the registered holder(s) of the surrendered Certificate(s), you
must follow the guidelines below. Note that in each circumstance listed
below, shareholders must have signatures Medallion guaranteed and complete
the box entitled "Special Payment Instructions."
(a) ENDORSEMENT AND GUARANTEE. The Certificate(s) surrendered must be
properly endorsed (or accompanied by appropriate stock powers
properly executed) by the registered holder(s) of such
Certificate(s) to the person who is to receive the Merger
Consideration. The signature(s) of the registered holder(s) on
the endorsement or stock powers must correspond
6
<PAGE>
exactly with the name(s) written on the face of the
Certificate(s) in every way and must be Medallion guaranteed by
an eligible guarantor institution, as defined below (a
"Guarantor").
DEFINITION OF ELIGIBLE GUARANTOR INSTITUTION
--------------------------------------------
Generally, an eligible guarantor institution, as defined in Rule 17Ad-15
under the Securities Exchange Act of 1934 (the "Exchange Act"), means:
(i) Banks (as the term is defined in Section 3(a) of the
Federal Deposit Insurance Act);
(ii) Brokers, dealers, municipal securities dealers,
municipal securities brokers, government securities
dealers and government securities brokers, as those
terms are defined under the Exchange Act;
(iii)Credit unions (as the term is defined in Section
19(b)(1)(A) of the Federal Reserve Act);
(iv) National securities exchanges, registered securities
associations and clearing agencies, as those terms are
used under the Exchange Act; and
(v) Savings associations (as that term is defined in
Section 3(b) of the Federal Deposit Insurance Act).
(b) TRANSFEREE'S SIGNATURE. This Letter of Transmittal must be signed
by the transferee or assignee or his or her agent, and should not
be signed by the transferor or assignor. The signature of such
transferee or assignee must be Medallion guaranteed by a
Guarantor as provided in Instruction 4(a).
(c) CORRECTION OF OR CHANGE IN NAME. For a correction of name or for
a change in name that does not involve a change in ownership,
proceed as follows: For a change in name by marriage, etc., this
Letter of Transmittal should be signed, e.g., "Mary Doe, now by
marriage Mary Jones." For a correction of name, this Letter of
Transmittal should be signed, e.g., "James E. Brown, incorrectly
inscribed as J.E. Brown." The signature in each case should be
Medallion guaranteed in the manner described in Instruction 4(a)
above and the box entitled "Special Payment Instructions" should
be completed. No stock transfer or other taxes are payable in
connection with such corrections.
You should consult your own tax advisor as to any possible tax consequences
resulting from the payment of your Merger Consideration to someone other than
the registered holder(s) of the surrendered Certificate(s).
7
<PAGE>
5. SUPPORTING EVIDENCE. In case any Letter of Transmittal, Certificate
endorsement or stock power is executed by an agent, attorney-in-fact,
administrator, executor, guardian, trustee or any other person acting
in a fiduciary or representative capacity, or by an officer of a
corporation on behalf of the corporation, there must be submitted
(with this Letter of Transmittal, surrendered Certificate(s) and/or
stock powers) documentary evidence of appointment and authority to act
in such capacity (including court orders and corporate resolutions
where necessary), as well as evidence of the authority of the person
making such execution to assign, sell or transfer the Shares. Such
documentary evidence of authority must be in form satisfactory to the
Paying Agent.
6. STOCK TRANSFER TAXES. AQP will pay or cause to be paid any state stock
transfer taxes applicable to the payment of the Merger Consideration
in exchange for surrendered Certificate(s); provided however, that if
a check for such Merger Consideration is to be made payable to any
person(s) other than the registered holder(s) of the surrendered
Certificate(s), the amount of any stock transfer taxes (whether
imposed on the registered holder(s) or such other person(s)) payable
on account of the transfer of the surrendered Certificate(s) shall be
delivered to the Paying Agent, or satisfactory evidence of the payment
of such taxes or non-applicability thereof shall be submitted to the
Paying Agent, before checks for the Merger Consideration will be
issued or delivered.
7. SPECIAL INSTRUCTIONS FOR DELIVERIES BY THE PAYMENT AGENT. Checks
representing your Merger Consideration will be mailed to the address
of the registered holder(s), unless instructions to the contrary are
given in the box entitled "Special Delivery Instructions" and your
signature(s) is Medallion guaranteed by a Guarantor as provided in
Instruction 4(a).
8. VALIDITY OF SURRENDER; IRREGULARITIES. All questions as to the
validity, form and eligibility of Certificate(s) surrendered will be
determined by AQP, and such determination will be final and binding.
The Paying Agent and AQP reserve the absolute right to reject any or
all surrenders that are defective or irregular and may request from
persons making such surrenders such additional documents as the Paying
Agent and AQP deem appropriate to correct such defects or
irregularities. However, the Paying Agent and AQP reserve full
discretion to waive any defect or irregularities in any surrender, and
upon such waiver they may treat and receive any such defective or
irregular surrenders as if no such defect or irregularity had been
present. Surrenders will not be deemed to have been made until all
defects or irregularities, which have not been waived, have been
cured.
9. ADDITIONAL COPIES. Additional copies of this Letter of Transmittal may
be obtained from the Paying Agent at its address listed on the first
page of this Letter of Transmittal.
10. INADEQUATE SPACE. If the space provided in this Letter of Transmittal
under "Description of Certificates Surrendered" is inadequate, the
Certificate numbers and number of Shares should be listed on a
separate schedule and attached hereto and separately signed on each
page thereof in the same manner as this Letter of Transmittal.
8
<PAGE>
11. LETTER OF TRANSMITTAL REQUIRED; SURRENDER OF CERTIFICATE(S); LOST
CERTIFICATE(S). You will not receive the Merger Consideration for your
Shares unless and until you deliver this Letter of Transmittal (or a
facsimile hereof), properly completed and duly executed, to the Paying
Agent, together with your Certificate(s), any required accompanying
evidences of authority in form satisfactory to the Paying Agent and
any other documents required by this Letter of Transmittal. If your
Certificate(s) has (have) been lost or destroyed, check the box
located under "Description of Certificates Surrendered," indicate the
number of Shares lost, then complete and send in this Letter of
Transmittal with the Certificate(s) that you do have in your
possession. In such event, the Paying Agent will forward additional
documentation necessary to be completed in order to surrender
effectively such lost or destroyed Certificate(s). There may be a fee
to replace lost Certificate(s).
12. SUBSTITUTE FORM W-9. Each shareholder is required to provide the
Paying Agent with a correct Taxpayer Identification Number ("TIN") on
the substitute Form W-9 which is provided under "Important Tax
Information" below and to certify whether such shareholder is subject
to backup withholding of federal income tax. If a shareholder has been
notified by the Internal Revenue Services that such shareholder is
subject to backup withholding, such shareholder must cross out item
(2) of the Certification box of the Substitute Form W-9, unless such
shareholder has since been notified by the Internal Revenue Service
that such shareholder is no longer subject to backup withholding.
Failure to provide the information on the Substitute Form W-9 may
subject the shareholder to 31% federal income tax withholding on the
Merger Consideration. If the shareholder has not been issued a TIN and
has applied for one or intends to apply for one in the near future,
such shareholder should check the "Awaiting TIN" box in part 2 of the
Substitute Form W-9 and sign and date the Substitute Form W-9. If the
"Awaiting TIN" box is checked in Part 2 and the Paying Agent is not
provided with a TIN within 60 days, the Paying Agent will withhold 31%
of the Merger Consideration to such shareholder until a TIN is
provided to the Paying Agent.
13. INQUIRIES. If you have any questions or need assistance relating to
this Letter of Transmittal, please contact the Paying Agent at (800)
507-9357.
PLEASE NOTE:
YOU MUST SURRENDER ALL OF YOUR AQUILA GAS PIPELINE CORPORATION
CERTIFICATES WITH THIS LETTER OF TRANSMITTAL
IMPORTANT TAX INFORMATION
Under the federal income tax laws, a shareholder is required by law to
provide the Paying Agent with such shareholder's correct TIN on the Substitute
Form W-9 below. If such shareholder is an individual, the TIN is such
shareholder's social security number. If the Paying Agent is not provided with
the correct TIN, the Internal Revenue Service may subject the shareholder to a
$50 penalty. In addition, the Merger Consideration paid to such shareholder may
be subject to backup withholding.
9
<PAGE>
If backup withholding applies, the Paying Agent is required to withhold 31%
of the Merger Consideration paid to the shareholder. 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 backup withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
Certain shareholders (including, among others, all corporations and certain
foreign individuals) are exempt recipients not subject to these backup
withholding and reporting requirements. In order for a foreign individual to
qualify as an exempt recipient, such individual must submit an Internal Revenue
Form W-8, signed under penalties of perjury, attesting to such individual's
exempt status. A Form W-8 may be obtained from the Paying Agent. See the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional instructions.
PURPOSE OF SUBSTITUTE FORM W-9
- ------------------------------
To prevent backup withholding on the Merger Consideration paid to a
shareholder, a shareholder is required to notify the Paying Agent of such
shareholder's correct TIN by completing the form below certifying that the TIN
provided on the Substitute W-9 is correct (or that such shareholder is awaiting
a TIN) and that (i) such shareholder is exempt from backup withholding or has
not been notified by the Internal Revenue Service that he is subject to backup
withholding as a result of a failure to report all interest or dividends or (ii)
the Internal Revenue Service has notified such shareholder that such shareholder
is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE PAYING AGENT
- ------------------------------------
The shareholder is required to give the Paying Agent the social security
number of TIN of the record holder of 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. If the shareholder
has not been issued a TIN and had applied for one or intends to apply for one in
the near future, such shareholder should check the "Awaiting TIN" box in Part 2
of the Substitute Form W-9 and sign and date the Substitute Form W-9. If the
"Awaiting TIN" box is checked in Part 2, the Paying Agent will reserve 31% of
all cash payments to such shareholder until a TIN is provided to the Paying
Agent. If the Paying Agent is not provided with a TIN within 60 days, the Paying
Agent will withhold 31% of all cash payments to such shareholder until a TIN is
provided to the Paying Agent.
10
<PAGE>
TO BE COMPLETED BY ALL FORMER AQP SHAREHOLDERS
(See Instruction 12)
PAYER'S NAME: THE BANK OF NEW YORK
- ----------------------------------
SUBSTITUTE
FORM W-9
Department of the Treasury
Internal Revenue Service
Payer's Request for
Taxpayer
Identification
Number ("TIN")
- -----------------------------------
PART 1 - PLEASE PROVIDE YOUR TIN IN THE
BOX AT THE RIGHT AND CERTIFY BY SIGNING
AND DATING BELOW.
________________________________________
Social Security Number or
Employer Identification Number
_____________________________
PART 2 - Awaiting TIN [ ] PART 3 - Exempt Payee [ ]
CERTIFICATION - Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct TIN (or I am awaiting 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 (IRS) that I am subject to backup withholding
as a result of a failure to report all interest or dividends, or (c)
the IRS has notified me that I am no longer subject to backup
withholding.
CERTIFICATION INSTRUCTIONS: You must cross out Item (2) above if you have been
notified by the IRS that you are subject to backup withholding because of
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 were no longer subject to backup
withholding, do not cross out Item (2).
SIGNATURE: __________________________ DATE: _________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF THE MERGER CONSIDERATION. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
2 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
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 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:_________________________
11
EXHIBIT (d)(3)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER FOR THE PAYEE (YOU)
TO GIVE THE PAYER.
Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer. All "Section" references are to the Internal Revenue Code of
1986, as amended. "IRS" is the Internal Revenue Service.
GIVE THE SOCIAL
SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF --
1. Individual The Individual
2. Two or more The actual owner of
individuals (joint the account or, if
account) combined funds, the
first individual on the
account (1)
3. Custodian account The minor (2)
of a minor (Uniform
Gift to Minors Act)
4. a. The usual The grantor-
revocable trustee (1)
trust account
(grantor is also
trustee)
b. So-called trust The actual owner (1)
account that is
not a legal or
valid trust under
state law
5. Sole proprietorship The owner (3)
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION NUMBER OF --
6. A valid trust, estate, The legal entity (4)
or pension trust
7. Corporate The corporation
8. Association, club, The organization
religious, charitable,
educational, or other
tax exempt
organization
9. Partnership The partnership
10. A broker or The broker or
registered nominee nomineee
11. Account with the The public entity
Department of
Agriculture in the
name of a public
entity (such as a
State or local
government, school
district, or prison)
that receives
agricultural program
payments
- -------------------
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security number, that
person's number must be furnished.
(2) Circle the minor's name and furnish the minor's social security number.
(3) You must show your individual name, but you may also enter your business or
"doing business as" name. You may use either your social security number or
your employer identification number (if you have one).
(4) List first and circle the name of the legal trust, estate, or pension
trust. (Do not furnish the taxpayer identification number of the personal
representative or trustee unless the legal entity itself is not designated
in the account title).
NOTE: IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME LISTED, THE NUMBER
WILL BE CONSIDERED TO BE THAT OF THE FIRST NAME LISTED.
<PAGE>
OBTAINING A NUMBER
If you don't have a taxpayer identification number, obtain Form SS-5,
Application for a Social Security Card, at the local Social Security
Administration office, or Form SS-4, Application for Employer Identification
Number, by calling 1-800-TAX-FORM, and apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
PAYEES SPECIFICALLY EXEMPTED FROM WITHHOLDING INCLUDE:
o An organization exempt from tax under Section 501(a), an individual
retirement account (IRA), or a custodial account under Section 403(b)(7),
if the account satisfies the requirements of Section 401(f)(2).
o The United States or a state thereof, the District of Columbia, a
possession of the United States, or a political subdivision or wholly-owned
agency or instrumentality of any one or more of the foregoing.
o An international organization or any agency or instrumentality thereof.
o A foreign government and any political subdivision, agency or
instrumentality thereof.
PAYEES THAT MAY BE EXEMPT FROM BACKUP WITHHOLDING INCLUDE:
o A corporation.
o A financial institution.
o A dealer in securities or commodities required to register in the United
States, the District of Columbia, or a possession of the United States.
o A real estate investment trust.
o A common trust fund operated by a bank under Section 584(a).
o An entity registered at all times during the tax year under the Investment
Company Act of 1940.
o A middleman known in the investment community as a nominee or who is listed
in the most recent publication of the American Society of Corporate
Secretaries, Inc., Nominee List.
o A futures commission merchant registered with the Commodity Futures Trading
Commission.
o A foreign central bank of issue.
PAYMENTS OF DIVIDENDS AND PATRONAGE DIVIDENDS GENERALLY EXEMPT FROM BACKUP
WITHHOLDING INCLUDE:
o Payments to nonresident aliens subject to withholding under Section 1441.
o Payments to partnerships not engaged in a trade or business in the United
States and that have at least one nonresident alien partner.
o Payments of patronage dividends not paid in money.
o Payments made by certain foreign organizations.
<PAGE>
o Section 404(k) payments made by ESOP.
PAYMENTS OF INTEREST GENERALLY EXEMPT FROM BACKUP WITHHOLDING INCLUDE:
o Payments of tax-exempt interest (including exempt-interest dividends under
Section 852).
o Payments described in Section 6049(b)(5) to non-resident aliens.
o Payments on tax-free covenant bonds under Section 1451.
o Payments made by certain foreign organizations.
CERTAIN PAYMENTS, OTHER THAN PAYMENTS OF INTEREST, DIVIDENDS, AND PATRONAGE
DIVIDENDS, THAT ARE EXEMPT FROM INFORMATION REPORTING ARE ALSO EXEMPT FROM
BACKUP WITHHOLDING. FOR DETAILS, SEE SECTIONS 6041, 6041A, 6042, 6044, 6045,
6049, 6050A AND 6050N AND THE REGULATIONS THEREUNDER.
EXEMPT PAYEES SHOULD COMPLETE A SUBSTITUTE FORM W-9 TO AVOID POSSIBLE ERRONEOUS
BACKUP WITHHOLDING. FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT"
ON THE FORM, SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER.
PRIVACY ACT NOTICE. - Section 6109 requires you to provide your correct taxpayer
identification number to payers who must report the payments to the IRS. The IRS
uses the numbers for identification purposes and to help verify the accuracy of
your return and may also provide this information to various government agencies
for tax enforcement or litigation purposes. Payers must be given the numbers
whether or not recipients are required to file tax returns. Payers must
generally withhold 31% of taxable interest, dividend, and certain other payments
to a payee who does not furnish a taxpayer identification number to a payer.
Certain penalties may also apply.
PENALTIES
(1) FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. - If you fail to furnish
your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. - If you
make a false statement with no reasonable basis that results in no backup
withholding, you are subject to a $500 penalty.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. - Willfully falsifying
certifications or affirmations may subject you to criminal penalties
including fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
