<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934
--------------------
(AMENDMENT NO. 2)
LANDMARK LAND COMPANY, INC.
--------------------
(NAME OF SUBJECT COMPANY)
KARENINA PROPERTIES, LLC
--------------------
(BIDDER)
COMMON STOCK, PAR VALUE $.50 PER SHARE
--------------------
(TITLE OF CLASS OF SECURITIES)
515062107
--------------------
(CUSIP NUMBER OF CLASS OF SECURITIES)
MORRIS ORENS, ESQ.
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 758-9500
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSONS AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
CALCULATION OF FILING FEE
- -------------------------------------------------------------------------------
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
$6,025,070 $1,205.02
- -------------------------------------------------------------------------------
* Based on the offer to purchase 6,025,070 shares of Common Stock of the
Subject Company at $1.00 cash per share.
** 1/50 of 1% of Transaction Value.
[ ] Check box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing:
Amount Previously Paid: N/A Filing Party: N/A
Form or Registration No.: N/A Date Filed: N/A
Note: The remainder of this cover page is only to be completed if the Schedule
14D-1 (or amendment thereto) is being filed, inter alia, to satisfy the
reporting requirements of section 13(d) of the Securities Exchange Act of 1934.
See General Instructions D, E and F to Schedule 14D-1.
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter the
disclosure provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
SCHEDULE 14D-1
- -------------------------------------------------------------------------------
CUSIP No. 515062107 Page 2 of Pages
----------------- ---- -----
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Karenina Properties, LLC (133965725)
- ----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- -------------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
0
- -------------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES* [ ]
- -------------------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0
- -------------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON*
CO
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
- -------------------------------------------------------------------------------
CUSIP No. 515062107 Page 3 of Pages
----------------- ---- -----
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Gotham Partners, L.P. (133700768)
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- -------------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,954,621
- -------------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES* [ ]
- -------------------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
24.4%
- -------------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON*
CO
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
- -------------------------------------------------------------------------------
CUSIP No. 515062107 Page 4 of Pages
----------------- ---- -----
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Gotham Partners II, L.P. (133863925)
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- -------------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
21,479
- -------------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
- -------------------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%
- -------------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON*
CO
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
AND
SCHEDULE 13D, AMENDMENT NO. 2
LANDMARK LAND COMPANY, INC.
This Statement on Schedule 14D-1 (this "Statement") relates to the
offer by Karenina Properties, LLC, a New York limited liability company (the
"Purchaser"), wholly-owned by Gotham Partners, L.P., a New York limited
partnership and Gotham Partners II, L.P., a New York limited partnership
(together, the "Funds"), to purchase all shares of Common Stock, par value $.50
per share (the "Shares"), of Landmark Land Company, Inc., a Delaware
corporation (the "Company"), at a price of $1.00 per share, net to the seller
in cash, upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated September 10, 1997 (the "Offer to Purchase"), and in the
related Letter of Transmittal, copies of which are attached hereto as Exhibits
(a) (1) and (a) (2), respectively (which collectively constitute the "Offer").
This Statement also constitutes Amendment No. 2 of the Schedule 13D
(as defined herein) which amends and supplements the Statement on Schedule 13D,
dated July 17, 1997 (the "Schedule 13D"), filed by the Funds relating to the
event date of July 7, 1997 and Amendment No. 1 to the Schedule 13D filed by the
Funds relating to the event date of August 29, 1997.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Landmark Land Company, Inc., a
Delaware corporation, and the address of its last known principal executive
offices is 100 Clock Tower Place, Suite 200, Carmel, California 93923.
(b) The class of securities to which this statement relates is the
Common Stock, par value $.50 per share, of the Company. The information set
forth in the Introductory Section and Section 1 of the Offer to Purchase
annexed hereto as Exhibit (a) (1) is incorporated herein by reference.
(c) The information set forth in Section 6 of the Offer to Purchase is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a) - (d); (g) The information set forth in Section 9 of the Offer to
Purchase is incorporated herein by reference. The name, business address,
present principal occupation or employment, the material occupations,
positions, offices or employments for the past five years and citizenship of
each director and executive officer of the Purchaser and the Funds, and the
name, principal business and address of any corporation or other organization
in which such occupations, positions, offices and employments are or were
carried on are set forth in Schedule I of the Offer to Purchase and
incorporated herein by reference.
Page 5
<PAGE>
(e) - (f) During the last five years, none of the Purchase or the
Funds or, to the best of the Purchaser's knowledge, any of the directors or
executive officers of the Purchaser or the Funds has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
was a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which any such person was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting activities subject to, federal or state securities laws or finding
any violation of such law.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE
SUBJECT COMPANY.
(a) - (b) The information set forth in the Introduction and Section 11
of the Offer to Purchase is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in Section 10 of the Offer to Purchase
is incorporated herein by reference.
(b)-(c) None.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF
THE BIDDER.
(a) - (g) The information set forth in the Introduction and Sections 7
and 12 of the Offer to Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) - (b) The information set forth in Section 11 of the Offer to
Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO THE SUBJECT COMPANY'S
SECURITIES.
The information set forth in the Introduction and Sections 10 and 11
of the Offer to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in Section 16 of the Offer to Purchase is
incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Page 6
<PAGE>
Not applicable.
ITEM 10. ADDITIONAL INFORMATION.
(a) Not applicable.
(b) - (c) The information set forth in Section 15 of the Offer to
Purchase is incorporated herein by reference.
(d) The information set forth in Section 7 of the Offer to Purchase is
incorporated herein by reference.
(e) The information set forth under Section 15 of the Offer to
Purchase is incorporated herein by reference. See Exhibit (g).
(f) The information set forth in the Offer to Purchase and the Letter
of Transmittal, to the extent not otherwise incorporated herein by reference,
is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a) (1) Offer to Purchase, dated September 10, 1997.
(2) Letter of Transmittal with respect to the Shares.
(3) Letter from Beacon Hill Partners, Inc. to brokers, dealers,
banks, trust companies and nominees.
(4) Letter to be sent by brokers, dealers, banks, trust companies
and nominees to their clients.
(5) Notice of Guaranteed Delivery.
(6) IRS Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(b) None.
(c) None.
(d) None.
(e) Not applicable.
(f) None.
Page 7
<PAGE>
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: September 10, 1997 KARENINA PROPERTIES, LLC
By: /s/ William A. Ackman
--------------------------------
Name: William A. Ackman
Title: Manager
GOTHAM PARTNERS, L.P.
By: Section H Partners, L.P.,
its general partner
By: Karenina Corporation,
a general partner of Section H
Partners, L.P.
By: /s/ William A. Ackman
--------------------------------
Name: William A. Ackman
Title: President
GOTHAM PARTNERS II, L.P.
By: Section H Partners, L.P.,
its general partner
By: Karenina Corporation,
a general partner of Section H
Partners, L.P.
By: /s/ William A. Ackman
--------------------------------
Name: William A. Ackman
Title: President
Page 8
<PAGE>
INDEX OF EXHIBITS
Exhibit Exhibit Sequentially
Number ------- Numbered
- ------ Pages
-----
(a) (1) Offer to Purchase, dated September 10, 1997.
(a) (2) Letter of Transmittal with respect to the Shares.
(a) (3) Letter from Beacon Hill Partners, Inc. to brokers,
dealer, banks, trust companies and nominees.
(a) (4) Letter to be sent by brokers, dealers, banks, trust
companies and nominees to their clients.
(a) (5) Notice of Guaranteed Delivery.
(a) (6) IRS Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
(b) None.
(c) None.
(d) None.
(e) Not applicable.
(f) None.
Page 9
<PAGE>
KARENINA PROPERTIES, LLC
September 10, 1997
DEAR LANDMARK LAND SHAREHOLDER:
Karenina Properties LLC ("Karenina") is offering to purchase any and
all shares of common stock (the "Shares") of Landmark Land Company, Inc. (the
"Company") which you own for a price of $1.00 PER SHARE IN CASH (the "Offer").
A copy of the offering materials is enclosed. Karenina believes, in addition to
the other information contained in the accompanying Offer to Purchase, you
should consider the following:
o ALL CASH OFFER AT A SUBSTANTIAL PREMIUM
Karenina is offering to pay $1.00 IN CASH PER SHARE FOR ANY AND ALL
SHARES which are tendered in response to the Offer. During the past
three years, the only trades in the Shares, as reported by Bloomberg
in the "Pink Sheets," were at prices ranging from less than one cent
($0.0000625) to five cents ($0.05) per Share.
o NO COMMISSION; NO FINANCING CONDITION
The $1.00 per share purchase price will be ALL CASH, WITHOUT
COMMISSION OR OTHER COSTS TO ANY SHAREHOLDER who tenders his or her
shares. ALL COSTS AND COMMISSIONS WILL BE BORNE BY KARENINA. Karenina
has committed funds available to pay for any and all shares that are
tendered in response to the Offer. The Offer is not subject to
financing.
o ILLIQUID MARKET FOR SHARES
The Shares were delisted from the Midwest and American Stock Exchanges
in late 1991. The Shares are not currently listed on any stock
exchange or on NASDAQ. The Shares have traded only sporadically for
the past three years. Since late 1994, only two trades totalling less
than 20,000 shares have been reported in the Pink Sheets. Accordingly,
the Offer affords you the opportunity to dispose of your shares for
cash which otherwise might not be available to you.
o POTENTIAL TAX ADVANTAGES
If you originally paid more than $1.00 per share for your Shares, you
may be able to recognize a tax loss on the sale of Shares to Karenina.
This tax loss could be of substantial benefit to you. You may be able
to use these losses to offset capital gains realized on other
investments or to offset ordinary income up to an annual deduction
limitation of $3,000. EACH SHAREHOLDER SHOULD CONSULT HIS OR HER OWN
ACCOUNTANT OR TAX ADVISER CONCERNING THE TAX CONSEQUENCES OF ACCEPTING
THIS OFFER TO PURCHASE.
<PAGE>
IN DECIDING WHETHER OR NOT TO ACCEPT KARENINA'S OFFER TO PURCHASE YOUR SHARES
WHICH WOULD TERMINATE ANY RIGHTS YOU MAY HAVE AS A SHAREHOLDER, YOU SHOULD
CONSIDER CAREFULLY ALL OF THE ACCOMPANYING MATERIALS AND SHOULD REVIEW THESE
MATERIALS WITH YOUR BROKER OR OTHER FINANCIAL ADVISER.
Sincerely,
KARENINA PROPERTIES LLC
===============================================================================
PROCEDURE TO ACCEPT THE OFFER
-----------------------------
IF YOU WISH TO ACCEPT THIS OFFER AND WISH TO TENDER ALL OR ANY PORTION OF YOUR
SHARES, YOU SHOULD FOLLOW ONE OF THESE TWO PROCEDURES:
(1) IF YOU OWN YOUR SHARES IN CERTIFICATE FORM: You should complete
and sign the enclosed BLUE Letter of Transmittal in accordance with the
instructions in the Letter of Transmittal and mail or deliver the BLUE Letter
of Transmittal together with your stock certificate(s), and any other required
documents to Harris Trust Company of New York (the "Depositary") in the
enclosed, postage-paid, addressed envelope.
(2) IF YOU HOLD THE SHARES IN A BROKER, DEALER, BANK, TRUST OR OTHER NOMINEE
ACCOUNT: You should contact your broker, dealer, bank, trust or nominee
representative and request that they tender the Shares on your behalf.
IF YOU HAVE ANY QUESTIONS
Questions and requests for assistance (including if you are unable to locate
your stock certificates or deliver them prior to the Expiration Date) may be
directed to Beacon Hill Partners, Inc., the Information Agent, at its address
and telephone number set forth below. Additional copies of the Offer to
Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and
other related materials may be obtained from the Information Agent or from
brokers, dealers, commercial banks and trust companies.
The Information Agent for the Offer is:
BEACON HILL PARTNERS, INC.
90 Broad Street
20th Floor
New York, New York 10004
(800) 854-9486
(TOLL FREE)
(212) 843-8500
(CALL COLLECT)
===============================================================================
<PAGE>
OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
OF
LANDMARK LAND COMPANY, INC.
AT
$1.00 NET PER SHARE
BY
KARENINA PROPERTIES, LLC
- -------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 7, 1997,
UNLESS THE OFFER IS EXTENDED.
- -------------------------------------------------------------------------------
THE OFFER IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN THIS
OFFER TO PURCHASE. SEE SECTION 14. THE OFFER IS NOT CONDITIONED UPON THE
RECEIPT OF FINANCING OR ANY MINIMUM NUMBER OF SHARES BEING TENDERED.
------------------
IMPORTANT
Any shareholder desiring to tender all or any portion of such
shareholder's Shares should either:
1. Complete and sign the Letter of Transmittal (or a facsimile thereof) in
accordance with the instructions in the Letter of Transmittal, have such
shareholder's signature thereon guaranteed if required by Instruction 1 to the
Letter of Transmittal, mail or deliver the Letter of Transmittal (or such
facsimile), or, in the case of a book-entry transfer effected pursuant to the
procedure set forth in Section 2, an Agent's Message (as defined herein) and
any other required documents to the Depositary and either deliver the
certificates for such Shares to the Depositary along with the Letter of
Transmittal (or facsimile) or deliver such Shares pursuant to the procedure for
book-entry transfer set forth in Section 2 or
2. Request such shareholder's broker, dealer, commercial bank, trust company or
other nominee to effect the transaction for such shareholder.
A shareholder having Shares registered in the name of a broker,
dealer, commercial bank, trust company or other nominee must contact such
broker, dealer, commercial bank, trust company or other nominee if such
shareholder desires to tender such Shares.
If a shareholder desires to tender Shares and such shareholder's
certificates for Shares are not immediately available or the procedure for
book-entry transfer cannot be completed on a timely basis, or time will not
permit all required documents to reach the Depositary prior to the Expiration
Date, such shareholder's tender may be effected by following the procedure for
guaranteed delivery set forth in Section 2.
Questions and requests for assistance may be directed to Beacon Hill
Partners, Inc., the Information Agent, at its address and telephone numbers set
forth on the back cover of this Offer to Purchase. Additional copies of this
Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery
and other related materials may be obtained from the Information Agent or from
brokers, dealers, commercial banks and trust companies.
The Information Agent for the Offer is:
BEACON HILL PARTNERS, INC.
September 10, 1997
<PAGE>
TABLE OF CONTENTS
Page
----
INTRODUCTION.................................................................1
THE TENDER OFFER.............................................................3
SECTION 1. TERMS OF THE OFFER..............................................3
SECTION 2. PROCEDURES FOR TENDERING SHARES.................................4
SECTION 3. WITHDRAWAL RIGHTS...............................................7
SECTION 4. ACCEPTANCE FOR PAYMENT AND PAYMENT..............................8
SECTION 5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.........................9
SECTION 6. PRICE RANGE OF SHARES; DIVIDENDS ON THE SHARES.................10
SECTION 7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES;
EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS.............10
SECTION 8. CERTAIN INFORMATION CONCERNING THE COMPANY.....................11
SECTION 9. CERTAIN INFORMATION CONCERNING
THE PURCHASER AND THE FUNDS...............................15
SECTION 10. SOURCE AND AMOUNT OF FUNDS....................................16
SECTION 11. BACKGROUND OF THE OFFER; CONTACTS, TRANSACTIONS
OR NEGOTIATIONS WITH THE COMPANY..........................16
SECTION 12. PURPOSE OF THE OFFER..........................................18
SECTION 13. DIVIDENDS AND DISTRIBUTIONS...................................18
SECTION 14. CERTAIN CONDITIONS OF THE OFFER...............................19
SECTION 15. CERTAIN LEGAL MATTERS.........................................21
SECTION 16. FEES AND EXPENSES.............................................23
SECTION 17. MISCELLANEOUS.................................................23
SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF THE FUNDS
AND THE PURCHASER........................................S-1
SCHEDULE II TRANSACTIONS IN SHARES........................................S-2
ii
<PAGE>
To the Holders of Shares of Common Stock of Landmark Land Company, Inc.:
INTRODUCTION
Karenina Properties, LLC, a New York limited liability company (the
"Purchaser"), wholly owned by Gotham Partners, L.P., a New York limited
partnership ("Gotham"), and Gotham Partners II, L.P. ("Gotham II"), a New York
limited partnership (together, the "Funds"), hereby offers to purchase all
outstanding shares of common stock, par value $.50 per share (the "Shares"), of
Landmark Land Company, Inc., a Delaware corporation (the "Company"), at a price
of $1.00 per Share, net to the seller in cash, without interest thereon (the
"Offer Price"), upon the terms and subject to the conditions set forth in this
Offer to Purchase and in the related Letter of Transmittal (which, as amended
from time to time, together constitute the "Offer").
The Purchaser believes that the Shares are registered under Section
12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
based upon its review of available filings made by the Company with the
Securities and Exchange Commission (the "Commission"). Although the Company
remains subject to periodic and other filing requirements under the Exchange
Act, no such filings have been made since the Company's Form 10-Q for the
quarter ended September 30, 1991 (the "Final Form 10-Q dated as of September
30, 1991"). The information concerning the Company contained in this Offer to
Purchase has been taken from or based upon publicly available documents on file
with the Commission and other publicly available information. Although the
Purchaser does not have any knowledge that any such information is untrue, the
Purchaser takes no responsibility for the accuracy or completeness of such
information or for any failure by the Company to disclose events that may have
occurred and may affect the significance or accuracy of any such information.
Purchaser will pay soliciting dealer's fees of $.10 per Share to
brokers, dealers and other persons for soliciting tenders of Shares from their
clients pursuant to the Offer. In addition, brokers, dealers, commercial banks
and trust companies and other nominees will, upon request, be reimbursed by the
Purchaser for customary clerical and mailing expenses incurred by them in
forwarding offering materials to their clients. Tendering shareholders will not
be obligated to pay brokerage fees or commissions. Except as set forth in
Instruction 6 of the Letter of Transmittal, tendering shareholders will not be
obligated to pay stock transfer taxes on the purchase of Shares pursuant to the
Offer. The Purchaser will pay all charges and expenses of Harris Trust Company
of New York, as Depositary (the "Depositary"), and Beacon Hill Partners, Inc.,
as Information Agent (the "Information Agent"), incurred in connection with the
Offer. See Section 16.
The purpose of the Offer is to make, through the purchase of Shares, a
speculative investment in the outcome of the Action (as defined below). By
tendering Shares pursuant to the Offer, shareholders will relinquish any
rights, as shareholders, to any benefits to the Company of the outcome of the
Action. The Purchaser has no current plans or proposals that would result in an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation involving the Company, sale or transfer of any material amount of
assets of the Company, any change in the Board of Directors or management of
the Company, any material change in the capitalization or dividend policy of
the Company, any other material change in the Company's corporate structure or
business.
Certain federal income tax consequences of the sale of Shares pursuant
to the Offer are described in Section 5.
1
<PAGE>
THE OFFER IS NOT CONDITIONED UPON THE RECEIPT OF FINANCING OR ANY
MINIMUM NUMBER OF SHARES BEING TENDERED.
Certain conditions to this Offer are described in Section 14. The
Purchaser expressly reserves the right, in its sole discretion, to waive any
one or more of the conditions to the Offer. See Sections 1, 14 and 15.
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
2
<PAGE>
THE TENDER OFFER
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer (including,
if the Offer is extended or amended, the terms and conditions of any extension
or amendment), the Purchaser will accept for payment and pay for all Shares
validly tendered and not withdrawn prior to the Expiration Date and not
theretofore withdrawn in accordance with Section 3. The term "Expiration Date"
means 12:00 Midnight, New York City time, on Tuesday, October 7, 1997, unless
and until the Purchaser, in its sole discretion, shall have extended the period
of time during which the Offer is open, in which event the term "Expiration
Date" shall mean the latest time and date at which the Offer, as so extended by
the Purchaser, will expire.
The Purchaser expressly reserves the right, in its sole discretion, at
any time or from time to time, regardless of whether or not any of the events
set forth in Section 14 shall have occurred or shall have been determined by
the Purchaser to have occurred, (i) to extend the period of time during which
the Offer is open and thereby delay acceptance for payment of, and the payment
for, any Shares, by giving oral or written notice of such extension to the
Depositary and (ii) to amend the Offer in any respect by giving oral or written
notice of such amendment to the Depositary. The rights reserved by the
Purchaser in this paragraph are in addition to the Purchaser's rights to
terminate the Offer pursuant to Section 14. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR NOT THE
PURCHASER EXERCISES ITS RIGHT TO EXTEND THE OFFER.
If by 12:00 Midnight, New York City time, on Tuesday, October 7, 1997
(or any date or time then set as the Expiration Date), any or all of the
conditions to the Offer have not been satisfied or waived, the Purchaser
reserves the right (but shall not be obligated), subject to the applicable
rules and regulations of the Commission, to (a) terminate the Offer and not
accept for payment or pay for any Shares and return all tendered Shares to
tendering shareholders, (b) waive all the unsatisfied conditions and accept for
payment and pay for all Shares validly tendered prior to the Expiration Date
and not theretofore withdrawn, (c) extend the Offer and, subject to the right
of shareholders to withdraw Shares until the Expiration Date, retain the Shares
that have been tendered during the period or periods for which the Offer is
extended or (d) amend the Offer.
There can be no assurance that the Purchaser will exercise its right
to extend the Offer. Any extension, amendment or termination will be followed
as promptly as practicable by public announcement. In the case of an extension,
Rule 14e-1(d) under the Exchange Act requires that the announcement be issued
no later than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date in accordance with the public announcement
requirements of Rule 14d-4(c) under the Exchange Act. Subject to applicable law
(including Rules 14d-4(c) and 14d-6(d) under the Exchange Act, which require
that any material change in the information published, sent or given to
stockholders in connection with the Offer be promptly disseminated to
shareholders in a manner reasonably designed to inform shareholders of such
change), and without limiting the manner in which the Purchaser may choose to
make any public announcement, the Purchaser will not have any obligation to
publish, advertise or otherwise communicate any such public announcement other
than by making a release to the Dow Jones News Service. As used in this Offer
to Purchase, "business day" has the meaning set forth in Rule 14d-1 under the
Exchange Act.
If the Purchaser extends the Offer, or if the Purchaser (whether
before or after its acceptance for payment of Shares) is delayed in its
acceptance for payment of or payment for Shares or is unable to pay for Shares
pursuant to the Offer for any reason, then, without prejudice to the
Purchaser's rights under the
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Offer, the Depositary may retain tendered shares on behalf of the Purchaser,
and such Shares may not be withdrawn except to the extent tendering
shareholders are entitled to withdrawal rights as described in Section 3.
However, the ability of the Purchaser to delay the payment for Shares which the
Purchaser has accepted for payment is limited by Rule 14e-l(c) under the
Exchange Act, which requires that a bidder pay the consideration offered or
return the securities deposited by or on behalf of holders of securities
promptly after the termination or withdrawal of the Offer.
If the Purchaser makes a material change in the terms of the Offer or
the information concerning the Offer or waives a material condition of the
Offer, the Purchaser will disseminate additional tender offer materials and
extend the Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14(e)-1
under the Exchange Act. The minimum period during which the Offer must remain
open following material changes in the terms of the Offer or information
concerning the Offer, other than a change in price or a change in percentage of
securities sought, will depend upon the facts and circumstances then existing,
including the relative materiality of the terms or information. With respect to
a change in price or a change in percentage of securities sought, a minimum ten
business day period is generally required to allow for adequate dissemination
to shareholders and investor response. If, prior to the Expiration Date, the
Purchaser should decide to increase the price per Share being offered in the
Offer, such increase will be applicable to all shareholders whose Shares are
accepted for payment pursuant to the Offer.
The Funds have obtained the Company's stockholder list, dated February
11, 1991. Requests are being made to the Company pursuant to Rule 14d-5 of the
Exchange Act and Section 220 of the DGCL for updated Company's stockholder
lists and security position listings for the purpose of disseminating the Offer
to holders of Shares. This Offer to Purchase, the related Letter of Transmittal
and other relevant materials will be mailed to record holders of Shares, and
will be furnished to brokers, dealers, banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on the stockholder
lists, or, if applicable, who are listed as participants in a clearing agency's
security position listing, for subsequent transmittal to beneficial owners of
Shares, by the Purchaser following receipt of such lists or listings from the
Company, or by the Company if it so elects.
2. PROCEDURES FOR TENDERING SHARES
Valid Tender. For a shareholder to validly tender Shares pursuant to
the Offer, either (A) a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), together with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message (as
defined below), and any other required documents, must be received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase prior to the Expiration Date and either certificates for tendered
Shares ("Share Certificates") must be received by the Depositary at one of such
addresses or such Shares must be delivered pursuant to the procedures for
book-entry transfer set forth below (and a Book-Entry Confirmation (as defined
below) received by the Depositary), in each case prior to the Expiration Date,
or (B) the tendering shareholder must comply with the guaranteed delivery
procedures set forth below.
Book-Entry Transfer. The Depositary will establish accounts with
respect to the Shares at The Depository Trust Company and The Philadelphia
Depository Trust Company (the "Book-Entry Transfer Facilities") for purposes of
the Offer within two business days after the date of this Offer to Purchase.
Any financial institution that is a participant in any of the Book-Entry
Transfer Facilities' systems may make book-entry delivery of Shares by causing
a Book-Entry Transfer Facility to transfer such Shares into the Depositary's
account in accordance with such Book-Entry Transfer Facility's procedures for
such transfer. However, although delivery of Shares may be effected through
book-entry transfer into the Depositary's account at a
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Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
or an Agent's Message (as defined below), and any other required documents,
must, in any case, be transmitted to, and received by, the Depositary at one of
its addresses set forth on the back cover of this Offer to Purchase prior to
the Expiration Date, or the tendering shareholder must comply with the
guaranteed delivery procedures described below. The confirmation of a
book-entry transfer of Shares into the Depositary's account at a Book-Entry
Transfer Facility as described above is referred to herein as a "Book-Entry
Confirmation." DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN
ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility
has received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against such participant.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY
BOOK-ENTRY TRANSFER FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING
SHAREHOLDER. SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY (INCLUDING, IN THE CASE OF A 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.
Signature Guarantees. No signature guarantee is required on the Letter
of Transmittal (a) if the Letter of Transmittal is signed by the registered
holder (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facilities' systems whose name appears on a
security position listing as the owner of the Shares) of Shares tendered
therewith and such registered holder has not completed either the box entitled
"Special Delivery Instructions" or the box entitled "Special Payment
Instructions" on the 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 Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(an "Eligible Institution"). In all other cases, all signatures on the Letter
of Transmittal must be guaranteed by an Eligible Institution. See Instructions
1 and 5 to the Letter of Transmittal. If Share Certificates are registered in
the name of a person other than the signer of the Letter of Transmittal, or if
payment is to be made or Share Certificates for Shares not tendered or not
accepted for payment are to be returned to a person other than the registered
holder of the Share Certificates surrendered, the tendered Share Certificates
must be endorsed or accompanied by appropriate stock powers, in either case
signed exactly as the name or names of the registered holders appear on the
Share Certificates, with the signatures on the Share Certificates or stock
powers guaranteed as described above. See Instructions 1 and 5 to the Letter of
Transmittal.
Guaranteed Delivery. If a shareholder desires to tender Shares
pursuant to the Offer and such shareholder's Share Certificates are not
immediately available or the procedure for book-entry transfer cannot be
completed on a timely basis or time will not permit all required documents to
reach the Depositary prior to the Expiration Date, such shareholder's tender
may be effected if all the following conditions are met:
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(i) the tender is made by or through an Eligible Institution:
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary, as provided below, prior to the Expiration Date; and
(iii) the Share Certificates representing all tendered Shares, in
proper form for transfer (or a Book-Entry Confirmation with respect to all
such Shares), together with a properly completed and duly executed Letter
of Transmittal (or facsimile thereof), with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message,
and any other required documents are received by the Depositary within
three trading days after the date of execution of such Notice of Guaranteed
Delivery.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mail to the
Depositary and must include a guarantee by an Eligible Institution in the form
set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares
accepted for payment pursuant to the Offer will in all cases be made only after
timely receipt by the Depositary of (a) Share Certificates for (or a timely
Book-Entry Confirmation with respect to) such Shares, (b) a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or, in the case of a book-entry transfer, an
Agent's Message, and (c) any other documents required by the Letter of
Transmittal. Accordingly, tendering shareholders may be paid at different times
depending upon when Share Certificates or Book-Entry Confirmations with respect
to Shares are actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
The Purchaser's acceptance for payment of Shares validly tendered
pursuant to the Offer will constitute a binding agreement between the tendering
shareholder and the Purchaser upon the terms and subject to the conditions of
the Offer.
Appointment as Proxy. By executing a Letter of Transmittal as set
forth above, a tendering shareholder irrevocably appoints designees of the
Purchaser as such shareholder's attorneys-in-fact and proxies in the manner set
forth in the Letter of Transmittal, each with full power of substitution, to
the full extent of such shareholder's rights with respect to the Shares
tendered by such shareholder and accepted for payment by the Purchaser (and any
and all other Shares or other securities issued or issuable in respect of such
Shares). All such proxies will be irrevocable and considered coupled with an
interest in the tendered Shares. Such appointment will be effective when, and
only to the extent that, the Purchaser accepts such Shares for payment pursuant
to the Offer. Upon such acceptance for payment, all prior powers of attorney,
proxies and consents given by such shareholder with respect to such Shares or
other securities will, without further action, be revoked and no subsequent
powers of attorney, proxies, consents or revocations may be given (and, if
given, will not be deemed effective). The designees of the Purchaser will
thereby be empowered to exercise all voting and other rights with respect to
such Shares and other securities in respect of any annual, special, adjourned
or postponed meeting of the Company's shareholders, actions by written consent
in lieu of any such meeting or otherwise, as they in their sole discretion deem
proper. The Purchaser reserves the right to require that, in order for Shares
to be deemed validly tendered, immediately upon the Purchaser's acceptance for
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payment of such Shares, the Purchaser must be able to exercise full voting,
consent and other rights with respect to such Shares and other securities or
rights, including voting at any meeting of shareholders.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tender of Shares will be determined by the Purchaser, in its sole discretion,
whose determination will be final and binding on all parties. The Purchaser
reserves the absolute right to reject any or all tenders determined by it not
to be in proper form or the acceptance for payment of or payment for which may,
in the opinion of the Purchaser's counsel, be unlawful. The Purchaser also
reserves the absolute right to waive any defect or irregularity in the tender
of any Shares of any particular shareholder whether or not similar defects or
irregularities are waived in the case of other shareholders. No tender of
Shares will be deemed to have been validly made until all defects or
irregularities relating thereto have been cured or waived. None of the
Purchaser, the Funds, the Depositary, the Information Agent or any other person
will be under any duty to give notification of any defects or irregularities in
tenders or incur any liability for failure to give any such notification. The
Purchaser's interpretation of the terms and conditions of the Offer (including
the Letter of Transmittal and the instructions thereto) will be final and
binding on all parties.
Backup Withholding. In order to avoid "backup withholding" of federal
income tax on payments of cash pursuant to the Offer, a shareholder
surrendering Shares in the Offer must, unless an exemption applies, provide the
Depositary with such shareholder's correct taxpayer identification number
("TIN") on a Substitute Form W-9 and certify under penalties of perjury that
such TIN is correct and that such shareholder is not subject to backup
withholding. If a shareholder does not provide such shareholder's correct TIN
or fails to provide the certifications described above, the Internal Revenue
Service (the "IRS") may impose a penalty on such shareholder and the payment of
cash to such shareholder pursuant to the Offer may be subject to backup
withholding of 31% of the amount of such payment. All shareholders surrendering
Shares pursuant to the Offer should complete and sign the main signature form
and the Substitute Form W-9 included as part of the Letter of Transmittal to
provide the information and certification necessary to avoid backup withholding
(unless an applicable exemption exists and is proved in a manner satisfactory
to the Purchaser and the Depositary). Noncorporate foreign shareholders should
complete and sign the main signature form and a Form W-8, Certificate of
Foreign Status, a copy of which may be obtained from the Depositary, in order
to avoid backup withholding. See Instruction 9 to the Letter of Transmittal.
3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares
pursuant to the Offer are irrevocable. Shares tendered pursuant to the Offer
may be withdrawn pursuant to the procedures set forth below at any time prior
to the Expiration Date and, unless theretofore accepted for payment by the
Purchaser pursuant to the Offer, may also be withdrawn at any time after
November 8, 1997 (or such later date as may apply in case the Offer is
extended).
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase and
must specify the name of the person having tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If Share Certificates have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such Share
Certificates, the serial numbers shown on such Share Certificates must be
submitted to the Depositary and, unless such Shares have been tendered by an
Eligible Institution, the signatures on the notice of withdrawal must be
guaranteed by an Eligible Institution. If Shares have been delivered pursuant
to the procedure for book-entry transfer as set forth
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in Section 2, any notice of withdrawal must also specify the name and number of
the account at the appropriate Book-Entry Transfer Facility to be credited with
the withdrawn Shares and otherwise comply with such Book-Entry Transfer
Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any Shares
properly withdrawn will thereafter be deemed not validly tendered for purposes
of the Offer. However, withdrawn Shares may be retendered by again following
one of the procedures described in Section 2 at any time prior to the
Expiration Date.
All questions as to the form and validity (including time of receipt)
of notices of withdrawal will be determined by the Purchaser, in its sole
discretion, whose determination will be final and binding on all parties. None
of the Purchaser, the Funds, the Depositary, the Information Agent or any other
person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure
to give any such notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer (including,
if the Offer is extended or amended, the terms and conditions of any such
extension or amendment), the Purchaser will accept for payment and will pay for
all Shares validly tendered and not properly withdrawn in accordance with
Section 3 promptly after the Expiration Date. All questions as to the
satisfaction of such terms and conditions will be determined by the Purchaser,
in its sole discretion, whose determination will be final and binding on all
parties. See Sections 1 and 14. The Purchaser expressly reserves the right, in
its sole discretion, to delay acceptance for payment of or payment for Shares
in order to comply in whole or in part with any applicable law. See Section 14.
Any such delays will be effected in compliance with Rule 14e-1(c) under the
Exchange Act (relating to a bidder's obligation to pay for or return tendered
securities promptly after the termination or withdrawal of such bidder's
offer).
In all cases, payment for Shares accepted for payment pursuant to the
Offer will be made only after timely receipt by the Depositary of (a) Share
Certificates for (or a timely Book-Entry Confirmation with respect to) such
Shares, (b) a Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message, and (c) any other documents required
by the Letter of Transmittal. The per Share consideration paid to any
shareholder pursuant to the Offer will be the highest per Share consideration
paid to any other shareholder pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have
accepted for payment, and thereby purchased, Shares validly tendered to the
Purchaser as, if and when the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance for payment of such Shares. Payment
for Shares accepted for payment pursuant to the Offer will be made by deposit
of the purchase price therefor with the Depositary, which will act as agent for
validly tendering shareholders for the purpose of receiving payment from the
Purchaser and transmitting payment to tendering shareholders. UNDER NO
CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE
PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN
MAKING SUCH PAYMENT. Upon the deposit of funds with the Depositary for the
purpose of making payments to tendering shareholders, the Purchaser's
obligation to make such payment shall be satisfied and tendering shareholders
must thereafter look solely to the Depositary for payment of amounts owed to
them by reason of the acceptance for payment of Shares pursuant to the Offer.
The Purchaser will pay any stock transfer taxes
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with respect to the transfer and sale to it or its order pursuant to the Offer,
except as otherwise provided in Instruction 6 of the Letter of Transmittal, as
well as any charges and expenses of the Depositary and the Information Agent.
If the Purchaser is delayed in its acceptance for payment of or
payment for Shares or is unable to accept for payment or pay for Shares
pursuant to the Offer for any reason, then, without prejudice to the
Purchaser's rights under the Offer (but subject to compliance with Rule
14e-l(c) under the Exchange Act), the Depositary may, nevertheless, on behalf
of the Purchaser, retain tendered Shares, and such Shares may not be withdrawn
except to the extent tendering shareholders are entitled to exercise, and duly
exercise, withdrawal rights as described in Section 3.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, Share Certificates for any such unpurchased Shares will be returned,
without expense to the tendering shareholder (or, in the case of Shares
delivered by book-entry transfer of such Shares into the Depositary's account
at a Book-Entry Transfer Facility pursuant to the procedure set forth in
Section 2, such Shares will be credited to an account maintained at the
appropriate Book-Entry Transfer Facility), as promptly as practicable after the
expiration, termination or withdrawal of the Offer.
The Purchaser reserves the right to transfer or assign, in whole or
from time to time in part, to the Funds, or to one or more direct or indirect
wholly owned subsidiaries of the Funds, the right to purchase Shares tendered
pursuant to the Offer, but any such transfer or assignment will not relieve the
Purchaser of its obligations under the Offer and will in no way prejudice the
rights of tendering shareholders to receive payment for Shares validly tendered
and accepted for payment pursuant to the Offer.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The Purchaser believes that tenders of Shares pursuant to the Offer
may result in capital losses for many shareholders. Capital losses may be used
to offset capital gains and the excess of capital losses over capital gains may
be offset against the ordinary income of an individual taxpayer, subject to an
annual deduction limitation of $3,000.
The receipt of cash pursuant to the Offer will be a taxable
transaction for federal income tax purposes under the Internal Revenue Code of
1986, as amended (the "Code"), and may also be a taxable transaction under
applicable state, local or foreign income or other tax laws. Generally, for
federal income tax purposes, a tendering shareholder will recognize gain or
loss equal to the difference between the amount of cash received by the
shareholder pursuant to the Offer and the aggregate tax basis in the Shares
tendered by the shareholder and purchased pursuant to the Offer. If Shares are
held by a shareholder as capital assets (i.e., generally assets held for
investment), gain or loss recognized by the shareholder will be capital gain or
loss.
Capital gains recognized by an individual shareholder will generally
be taxed at a maximum federal marginal tax rate of 20% if the shareholder's
holding period for the shares exceeds 18 months and 28% if the shareholder's
holding period for the shares exceeds 12 months but does not exceed 18 months.
Capital gains recognized by a corporate shareholder will be taxed at a maximum
federal marginal tax rate of 35%.
THE FOREGOING DISCUSSION IS INCLUDED FOR GENERAL INFORMATION ONLY AND
MAY NOT BE APPLICABLE WITH RESPECT TO SHARES RECEIVED PURSUANT TO THE EXERCISE
OF EMPLOYEE STOCK OPTIONS OR OTHERWISE AS COMPENSATION OR WITH
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RESPECT TO HOLDERS OF SHARES WHO ARE SUBJECT TO SPECIAL TAX TREATMENT UNDER THE
CODE, SUCH AS NON-U.S. PERSONS, LIFE INSURANCE COMPANIES, TAX-EXEMPT
ORGANIZATIONS AND FINANCIAL INSTITUTIONS, AND MAY NOT APPLY TO A HOLDER OF
SHARES IN LIGHT OF INDIVIDUAL CIRCUMSTANCES. SHAREHOLDERS ARE URGED TO CONSULT
THEIR TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM
(INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL OR FOREIGN INCOME AND
OTHER TAX LAWS) OF THE OFFER.
6. PRICE RANGE OF SHARES; DIVIDENDS ON THE SHARES
The Purchaser believes the Shares were delisted from trading on the
American and Midwest Stock Exchange in or about 1991. Since the delisting, the
Shares have traded over the counter in the "Pink Sheets." During the past three
years, trading in the Shares has been extremely limited. Trades reported in the
"Pink Sheets" during this period were made at a per Share price of $0.01 or
less other than a recent purchase of 500 Shares at $0.05 per Share by
affiliates of the Purchaser. The Purchaser does not believe that the Company
has paid any dividends since January 1, 1995.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; EXCHANGE ACT
REGISTRATION; MARGIN REGULATIONS
Market for the Shares. The Purchaser believes, based upon the
Company's Final Form 10-Q dated as of September 30, 1991, that there are
8,001,170 Shares outstanding, which based on its proxy statement to
shareholders dated March 15, 1991 were held by 820 stockholders of record. The
purchase of Shares pursuant to the Offer will reduce the number of holders of
Shares and the number of Shares that might otherwise trade in the
over-the-counter market and could adversely affect the liquidity and market
value of the remaining Shares held by the public.
Exchange Act Registration. The Purchaser believes that the Shares are
currently registered under the Exchange Act. The Shares may be eligible for
deregistration either prior to or after the Offer depending upon certain
circumstances, including the number of recordholders of the Shares at such
time. Registration of the Shares under the Exchange Act may be terminated upon
application of the Company to the Commission if the Shares are neither listed
on a national securities exchange nor held by 500 or more holders of record,
where total assets of the Company have not exceeded $10 million on the last day
of the Company's three most recent fiscal years. In order to be eligible to
effect such termination, however, the Company must be current on its periodic
reporting requirements under the Exchange Act. As the Company has not complied
with its reporting obligations under the Exchange Act, the Company would be
ineligible for deregistration in the absence of a waiver from the Commission.
Purchaser does not know whether such a waiver could be obtained.
Termination of registration of the Shares under the Exchange Act
would, assuming the Company were in compliance with its reporting obligations,
substantially reduce the information required to be furnished by the Company to
its shareholders and to the Commission. Termination would also make certain
provisions of the Exchange Act no longer applicable to the Company, such as the
short-swing profit recovery provisions of Section 16(b) of the Exchange Act,
the requirement of furnishing a proxy statement pursuant to Section 14(a) of
the Exchange Act in connection with shareholders' meetings and the related
requirement of furnishing an annual report to shareholders and the requirements
of Rule 13e-3 under the Exchange Act with respect to "going private"
transactions. Furthermore, the ability of "affiliates" of the Company and
persons holding "restricted securities" of the Company to dispose of such
securities in compliance with Rule
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144 or 144A promulgated under the Securities Act of 1933, as amended, would be
eliminated, although Rule 144 and Rule 144A would appear to be currently
unavailable to affiliates because of the absence of currently available
information concerning the Company.
The Purchaser believes that the Shares do not constitute margin
securities under the regulations of the Board of Governors of the Federal
Reserve System.
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Purchaser believes that the Company is subject to the
informational requirements of the Exchange Act and, in accordance therewith, is
required to file reports relating to its business, financial condition and
other matters. Information as of particular dates concerning the Company's
directors and officers, their remuneration, stock options and other matters,
the principal holders of the Company's securities and any material interest of
such persons in transactions with the Company is required to be disclosed in
proxy statements distributed to the Company's shareholders and filed with the
Commission. However, Purchaser believes that the Company has not made any
filings with the Commission since November 22, 1991. Reports, proxy statements
and other information filed on or before November 22, 1991, may be available
for inspection at the public reference facilities of the Commission at 450
Fifth Street, N.W., Washington, DC 20549, and at the regional offices of the
Commission located at Seven World Trade Center, 13th Floor, New York, NY 10048
and Citicorp Center, 500 West Madison Street (Suite 1400), Chicago, IL 60661.
Such reports, proxy statements and other information may also be obtained at
the Web site that the Commission maintains at http://www.sec.gov. Copies of
such information should be obtainable, by mail, upon payment of the
Commission's customary charges, by writing to the Commission's principal office
at 450 Fifth Street, N.W., Washington, DC 20549.
The information concerning the Company contained in this Offer to
Purchase has been taken from or based upon publicly available documents on file
with the Commission and other publicly available information. Although the
Purchaser has no knowledge that any such information is untrue, the Purchaser
takes no responsibility for the accuracy or completeness of such information or
for any failure by the Company to disclose events that may have occurred and
may affect the significance or accuracy of any such information.
The Company is a Delaware corporation with its last known principal
offices at 100 Clock Tower Place, Suite 200, Carmel, California 93923.
The Company was incorporated in June 1984 in Delaware as successor to
a company of the same name originally incorporated in New York on July 7, 1919.
In September 1982, the Company acquired Landmark Savings Bank ("LSB"), which
was the largest savings and loan association in Louisiana at that time. In
1983, the Company contributed substantially all of its assets and liabilities
to a wholly-owned subsidiary of LSB, making it a savings bank holding company.
In August 1986, the Company acquired the stock of a second thrift institution,
Oak Tree Savings Bank. In 1991, the Company was primarily engaged in the
following industry segments: (1) real estate based lending services, (2)
owning, managing and operating rental real estate, golf course and club
properties, (3) real estate development, (4) marketing and underwriting
insurance products, and (5) owning, operating and managing hotels.
The following is excerpted from the Company's Final Form 10-Q dated as
of September 30, 1991:
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"The enactment of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989 ("FIRREA") on August 9, 1989, dramatically
changed the regulations governing the operations of Oak Tree Savings
Bank, S.S.B. ("OTSB"), the Company's savings bank subsidiary. Under
FIRREA, certain investments, such as investments in corporate debt
securities not of investment grade or investments of a type or amount
not permissible for federal savings associations, are impermissible
for state-chartered savings associations, such as OTSB. Savings
associations are required to divest such investments as quickly as can
be prudently done, and in any event not later than July 1, 1994. In
addition, investments in (i) subsidiaries which, although permissible
for federal savings associations, are not permissible for national
banks and (ii) equity investments, such as investments in equity
securities and investments in certain real property, must be
separately capitalized over a phase-out period which ends July 1, 1994
(i.e., with respect to such net investments, OTSB must maintain
capital by July 1, 1994, equal to 100% of such net investments over
and above that required for permissible activities). Effective July 1,
1991, as a result of FIRREA, OTSB is required to exclude from its
regulatory capital an amount equal to 25% of the book value of its
equity risk investments (primarily real estate). As of September 30,
1991, OTSB failed its tangible capital requirement of $28.2 million by
$703.6 million, its core capital leverage requirements of $56.4
million by $731.8 million and its risk-based capital requirement of
$140.5 million by $815.9 million. As previously reported, OTSB's
continued failure to meet its capital requirements and to gain the
approval of the Office of Thrift Supervision ("OTS") of its capital
plan raised substantial doubt about the Company's ability to continue
as a going concern.
"On October 11, 1991, six subsidiary companies of OTSB filed for
protection under Chapter 11 of the U.S. Bankruptcy Code in order to
preserve the values of their assets. The filings by Clock Tower Place
Investments Ltd., Landmark Land Company of Carolina Inc., Landmark
Land Company of Oklahoma, Inc., and Landmark Land Company of Florida,
Inc. and Landmark Land Company of Louisiana, Inc. were made in the
U.S. Bankruptcy Court in Columbia, S.C.
"The companies under protection of the court have as their principal
assets such golf- oriented residential and resort communities as
Kiawah Island, PGA West, Oak Tree, Mission Hills, and Palm Beach Polo
& Country Club, as well as the companies that manage and operate them.
"On October 13, 1991, the OTS placed OTSB, a wholly-owned subsidiary
of the Company, into receivership and chartered a new federal mutual
institution to purchase certain assets and assume certain liabilities
of Oak Tree. The new federal mutual institution is currently operating
in conservatorship under the management of the Resolution Trust
Corporation (the "RTC"). Shareholders of the Company have no interest
in the new thrift. As a result of the receivership of Oak Tree Savings
Bank, S.S.B., the Company has virtually no tangible assets, liquidity
or capital resources and currently has substantial negative net worth.
"On October 14, 1991, the OTS assessed four directors of the Company
civil money penalties of $1 million each in connection with the
October 11 bankruptcy filing of
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six subsidiaries of OTSB. The OTS also assessed the Company a civil
money penalty of $500,000 for each day of the bankruptcy proceedings.
The OTS ordered the Company not to expend funds or incur liability in
excess of $5,000 without the prior written consent of the OTS, except
for salaries, certain employee benefits and other normal business
expenses. On November 1, 1991, the U.S. District Court in New Orleans,
Louisiana, stayed the $5,000 expenditure limit on the Company;
however, the OTS has appealed this ruling."
Following the events described above in the Company's Final Form 10-Q,
dated as of September 30, 1991, the Purchaser understands that the Company's
savings bank subsidiary, Oak Tree Savings Bank, was placed in conservatorship
under the RTC and thereafter liquidated. The Purchaser understands that the
Federal Deposit Insurance Corporation ("FDIC") became the successor to the
rights and assets of Oak Tree Savings Bank, whose assets and liabilities were
formerly held by the RTC. On August 4, 1995, the Company commenced an action
(the "Action") in the U.S. Court of Federal Claims against the United States
for breach of contract, restitution, deprivation of property without just
compensation or due process of law, frustration of purpose and damages in an
amount not specified. The complaint of the Company alleges, among other things,
that the United States breached contractual arrangements entered into in
connection with the Company's acquisition of savings institutions, including by
the enactment of Financial Institutions Reform Recovery and Enforcement Act of
1989 ("FIRREA") in 1989, which required the savings institutions to write off
20% per year of the actual value of real estate contributed by the Company to
the savings institution, by requiring the immediate exclusion from the savings
institution's net worth of the goodwill that the U.S. had previously agreed
could be included in regulatory capital and amortized over 40 years, and by
refusing to cooperate in various sales of real estate proposed by the savings
institution.
Proceedings in the Action had been stayed pending a decision by the
Supreme Court of the United States in three cases involving claims by banks
against the United States for, among other things, breach of contract based
upon FIRREA's elimination of the treatment of goodwill contemplated at the time
the ailing thrifts were taken over by healthier thrifts or other investors. On
July 1, 1996, the Supreme Court of the United States decided an appeal in three
of these cases brought against the federal government. The plaintiffs were
Winstar Corporation, Glendale Federal Bank FSB and The Statesman Group, Inc.
("Winstar Cases"). In those cases, based upon their facts and circumstances and
based upon the documents relating to each of those plaintiff's acquisitions of
ailing savings institutions, the Court of Federal Claims had granted summary
judgment on the issue of liability in favor of the plaintiffs. Thereafter a
panel of the Court of Appeals for the Federal Circuit reversed the summary
judgments granted in favor of the plaintiffs and ruled against them.
Subsequently, the Court of Appeals for the Federal Circuit, sitting en banc,
reversed the panel's decision and ruled in favor of the plaintiffs. The
government then sought a further review in the Supreme Court. In its July 1996
decision, the Supreme Court affirmed the judgments of liability in favor of the
plaintiffs, holding that, based upon the language of the applicable documents
executed in connection with plaintiffs' take-over of ailing thrifts, plaintiffs
have stated claims for breach of contract against the government. Because the
trial court (the Court of Federal Claims) had not made any findings as to
whether the plaintiffs had suffered damages and, if so, in what amount, the
Supreme Court remanded for further proceedings consistent with its opinion.
Since the Supreme Court's decision in July 1996, the Court of Federal Claims
has conducted evidentiary proceedings in which it took testimony and reviewed
documentary evidence on the questions of the measure and amount of damages
regarding the claim of Glendale Federal Bank FSB. The government has opposed
Glendale's claim for damages. Although in published reports, the presiding
judge has made remarks
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favorable to the plaintiffs prior to hearing evidence from the government, the
Court has not yet rendered a decision on the measure or amount of damages to
which Glendale may be entitled. The Court has not yet begun to hear evidence
concerning damages to which any other plaintiffs may be entitled, nor has it
rendered any decision on the question of liability in any other cases.
Following any decision on damages, it is anticipated that one or both parties
may take appeals to the Court of Appeals for the Federal Circuit. It is
uncertain when any such damage judgment will become final and enforceable.
Although the plaintiff thrift institutions in the Winstar Cases
prevailed in the U.S. Supreme Court, its decision is not necessarily
dispositive of the outcome of the Company's Action. A court may still determine
that the Company's claims involve sufficiently different facts and/or legal
issues as to render the Winstar Cases inapplicable to the Action and thereby
result in a different conclusion from that of the Winstar Cases. Moreover, the
damages portions of the claims presented by the Winstar plaintiff thrift
institutions remain to be litigated and could take several years to resolve.
After the decision in the Winstar Cases, by motion dated November 1,
1996, filed in the Action brought on behalf of the Company, the Company sought
from the Court of Federal Claims partial summary judgment on the issue of
liability on its theory of breach of contract by the government under its
various agreements and other documents executed in connection with the
Company's take-over of several ailing thrift institutions. By complaint filed
on March 14, 1997, the Federal Deposit Insurance Corporation ("FDIC") has
intervened as plaintiff in the Action. The FDIC did so with the permission of
the Court of Federal Claims. Among other things, the Complaint in Intervention
alleges that the FDIC as successor to the rights of Oak Tree Savings Bank (the
former savings bank subsidiary of the Company) is entitled to recover from the
federal government any damages for which the banking regulators may be liable
under the various documents executed in connection with the Company's take-over
of ailing thrift institutions. In court papers filed on or about April 14,
1997, the government opposed the Company's request for partial summary judgment
in the Action. The government also cross- moved for partial summary judgment in
its favor, asking that judgment be entered for the government and against the
Company with respect to the Company's contract claims. The Court of Federal
Claims has not ruled on the parties' motion and cross-motion. These motions
relate only to the question of liability for breach of contract; they do not
address the measure or amount of damages. Following any decision on liability,
it is possible that one or both parties may seek to appeal to the Court of
Appeals for the Federal Circuit. It is uncertain when any such judgment will
become final and enforceable. If the Court of Federal Claims rules in favor of
the Company on the issue of liability and, assuming there are one or more
appeals from that decision, if the judgment of liability is upheld following
any such appeals, it is uncertain when the Court may conduct an evidentiary
hearing on the damages and, following a decision on damages and any applicable
appeals from that decision, when any such decision would become final. The
measure and amount of damages, if any, are uncertain. If it is finally adjudged
that the Company is entitled to any damages, there will have to be an
adjudication of the FDIC's claim as intervenor-plaintiff that, as successor to
Oak Tree Savings Bank (the Company's former savings bank subsidiary), the FDIC
is entitled to any such damages against the government and, if so, whether the
FDIC or the Company is entitled to all or a portion of said damages and whether
the FDIC's entitlement to damages supplants the Company's entitlement to
damages.
With respect to the assets and liabilities of the Company, the
Purchaser knows only of the contingent asset represented by the Action. By
tendering Shares pursuant to the Offer,
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shareholders will relinquish any rights, as shareholders, to any benefits to
the Company of the outcome of the Action. The Company may have net operating
losses which could be used to offset taxable income of the Company. However,
the Purchaser cannot reasonably determine whether such net operating losses
actually exist, the magnitude of such net operating losses, when such net
operating losses are scheduled to expire and/or whether the availability of
such net operating losses is subject to limitation. Moreover, pursuant to Code
Section 382, the ability of the Company to utilize such net operating losses to
offset taxable income may be substantially diminished depending upon the
percentage of Shares transferred since the creation of such net operating
losses and/or Shares acquired in this Offer and/or other transfers of capital
stock of the Company.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND THE FUNDS
The Funds were each formed to engage in the buying and selling of
securities for investment for its own account. Section H Partners, L.P., a New
York limited partnership ("Section H"), is the sole general partner of Gotham
and Gotham II. Karenina Corp., a New York corporation ("Karenina"), and DPB
Corp., a New York corporation ("DPB"), are the sole general partners of Section
H. Karenina is wholly owned by William A. Ackman. DPB is wholly owned by David
P. Berkowitz. Messrs. Ackman and Berkowitz are U.S. Citizens. The Purchaser is
a newly incorporated New York limited liability company wholly owned by the
Funds, and to date has not conducted any business other than in connection with
the Offer. The principal executive offices of the Funds and the Purchaser are
located at 110 East 42nd Street, 18th Floor, New York, New York 10017.
The Funds have committed equity capital of more than $270 million and
have executed agreements with the Purchaser to commit sufficient equity capital
to pay for all outstanding Shares at the Offer Price plus related fees and
expenses.
Except as set forth in this Offer to Purchase (including the Schedules
hereto), none of the Funds or the Purchaser, or, to the best knowledge of the
Funds or the Purchaser, any of the persons listed in Schedule I hereto, or any
associate or majority-owned subsidiary of such persons, beneficially owns any
equity security in the Company, and none of the Funds, the Purchaser, or, to
the best knowledge of the Funds or the Purchaser, any of the other persons
referred to above, or any of the respective directors, executive officers or
subsidiaries of any of the foregoing, has effected any transaction in any
equity security of the Company during the past 60 days.
Except as set forth in this Offer to Purchase (including the
Schedules hereto), none of the Funds or the Purchaser, or, to the best
knowledge of the Funds and the Purchaser, any of the persons listed in Schedule
I hereto has any contract, arrangement, understanding or relationship with any
other person with respect to any securities of the Company, including, without
limitation, any contract, arrangement, understanding or relationship concerning
the transfer of the voting of any securities of the Company, joint ventures,
loan or option arrangements, puts or calls, guaranties of loans, guaranties
against loss or the giving or withholding of proxies. Except as set forth in
this Offer to Purchase (including the Schedules hereto), none of the Funds or
the Purchaser, or, to the best knowledge of the Funds and the Purchaser, any of
the persons listed in Schedule I hereto has had any transactions with the
Company, or any of its executive officers, directors or affiliates that would
require reporting under the rules of the Commission.
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Except as set forth in this Offer to Purchase (including the Schedules
hereto), there have been no contacts, negotiations or transactions between the
Funds or the Purchaser, or their respective subsidiaries, or, to the best
knowledge of the Funds and the Purchaser, any of the persons listed in Schedule
I hereto, on the one hand, and the Company or its executive officers, directors
or affiliates, on the other hand, concerning a merger, consolidation or
acquisition, tender offer or other acquisition of securities, election of
directors, or a sale or other transfer of a material amount of assets that
would require reporting under the rules of the Commission.
10. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by the Purchaser to purchase all of
the Shares pursuant to the Offer and to pay related fees and expenses incurred
in connection with the Offer, is estimated at $6,500,000. The Funds have
committed equity capital of more than $270 million and have executed agreements
with the Purchaser to commit sufficient equity capital to pay for all
outstanding Shares at the Offer Price, plus related fees and expenses.
11. BACKGROUND OF THE OFFER; PAST CONTACTS, TRANSACTIONS OR
NEGOTIATIONS WITH THE COMPANY
In or about late 1996, William A. Ackman, the sole shareholder of
Karenina Corp., a general partner of Section H Partners which is general
partner of each of the Funds, and an officer of the general partner of Gotham
Partners Management Co., L.L.C., the managing agent of each of the Funds, met
an individual named Spencer Waxman at a real estate industry meeting sponsored
by a charity at which Mr. Ackman was a keynote speaker. The Purchaser
understands that Mr. Waxman is an employee of an entity of which Mr. Gerald
Barton is a principal. The Purchaser understands that Mr. Barton is President,
Chief Operating Officer and a member of the Board of Directors of the Company.
The Purchaser further understands that Mr. Waxman is not a director, officer or
employee of the Company. At such charity function, Mr. Ackman described an
investment made by the Funds in an entity that owns a contingent asset
consisting of a claim asserted in a lawsuit against the United States, relating
to certain injuries suffered by a savings institution owned by the claimant
resulting from the imposition of the capital reserve requirements of FIRREA.
Mr. Waxman then mentioned to Mr. Ackman that he was aware of another entity,
the Company, which had a similar claim against the United States government.
Thereafter, representatives of the Funds spoke with the attorney representing
the Company in prosecuting its claim against the federal government. That
attorney described briefly the nature of the Company's claims against the
federal government. The attorney thereafter sent the Funds a copy of the
Company's complaint in the Action against the federal government, which was
filed on August 4, 1995.
Through public filings, the Funds determined that Olympia & York
Realty Corp. ("O&Y Realty"), an entity which had entered bankruptcy proceedings
in the United States Bankruptcy Court of the Southern District of New York in
1992, had owned a block of the Company's Shares. In or about January or
February 1997, the Funds entered into negotiations with World Financial
Properties, L.P. ("WFP"), the successor to O&Y Realty, to purchase all of the
Company's Shares owned by WFP. The Purchaser understands that WFP is a limited
partnership organized and existing under the laws of the State of Delaware.
During their discussions, WFP informed the Funds that WFP owned approximately
1.8 million Shares of the Company. Based upon the Company's last proxy
statement, which was filed with the SEC in or about March 1991, the Funds
believed that WFP owned 1,975,600 Shares, which is the number listed in the
proxy as belonging to O&Y Realty, WFP's
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predecessor. In or about February 1997, the Funds agreed orally with WFP to
purchase all of WFP's Shares. WFP agreed orally to sell those shares for a
price of $0.05 per share. On or about July 7, 1997, WFP sent a letter by
telefax to the Funds, addressed to David Klafter, "confirming our agreement
whereby World Financial Properties, L.P. ("WFP"), as successor in interests of
Olympia & York Realty Corp., will sell to Gotham Partners shares of stock in
Landmark Land Company, Inc. ("Landmark") [the Company] which WFP owns for a
purchase price of $.05 per share (or $90,000 based on 1,800,000 shares)." On or
about July 9, 1997, Mr. Klafter received another letter from WFP, among other
things, stating that WFP was having difficulty obtaining the share certificate
from its former parent in Canada and requesting that Gotham disregard the
telefax confirmation of July 7. By letter dated July 10, 1997, Gotham declined
WFP's request to disregard the confirmation of July 7. Under cover of letter
dated July 15, 1997, Gotham tendered to WFP a check in the amount of $98,780,
representing a payment of $0.05 per share for the 1,975,600 Shares which Gotham
understood were owned by WFP's predecessor, O&Y Realty. Under cover of letter
dated July 16, 1997, WFP returned Gotham's check and stated, among other
things, that it was uncertain as to the precise number of Shares it owned. By
letter dated July 18, 1997, Gotham reiterated its position that the parties
have a valid and binding agreement and stated, among other things, that the
parties could make an adjustment to the purchase price if 1,975,600 was not the
precise number of Shares owned by WFP. On or about August 20, 1997, WFP
informed Gotham that it was refusing to transfer ownership to Gotham of the
Shares owned by WFP. On or about August 27, 1997, Gotham commenced an action
against WFP in the Supreme Court of the State of New York, County of New York,
seeking specific performance of WFP's obligations under the parties' contract
to sell WFP's Shares to Gotham at the agreed upon price, and for related
relief. The Funds believe Gotham has an enforceable agreement with WFP for
purchase of the Shares at the agreed upon price and accordingly, the Funds may
be deemed to be the beneficial owners of those Shares.
Besides the Shares of the Company that Gotham contracted to purchase
from WFP, the Funds have also purchased 500 Shares in an open market
transaction on or about September 5, 1997, at a price of $0.05 per share. Based
on the foregoing, as of the date of this Offer to Purchase, Gotham beneficially
owns 1,954,621 Shares, representing approximately 24.43% of the outstanding
Shares, and Gotham II beneficially owns 21,479 Shares, representing
approximately 0.27% of the outstanding Shares. The percentages in this
paragraph are calculated based upon 8,001,170 outstanding Shares, as of
November 14, 1991, as reported in the Company's Final Form 10-Q dated as of
September 30, 1991. None of Section H, Karenina, DPB, Mr. Ackman, or Mr.
Berkowitz beneficially own any Shares other than the Shares beneficially owned
by Gotham and Gotham II. Each of Gotham and Gotham II has the sole power to
vote and to dispose of the Shares beneficially owned by it.
The Funds have entered into an agreement with Mr. Waxman, identified
above, pursuant to which Mr. Waxman was granted an option to purchase one-third
of any Shares acquired by the Funds from WFP or in any other private
transactions and the Funds were granted an option to purchase two-thirds of any
Shares acquired by Mr. Waxman from WFP or in any other private transactions,
each option exercisable for a period of 10 business days following notice of
any such purchase, at a price equal to the purchase price per Share. Such
options expire upon the expiration of the 10-day notice period following
Gotham's acquisition of WFP's Shares. Said options do not apply to any Shares
purchased by the Purchaser pursuant to this Offer to Purchase.
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12. PURPOSE OF THE OFFER
The purpose of the Offer is to make, through the purchase of Shares, a
speculative investment in the outcome of the Action. By tendering Shares
pursuant to the Offering, shareholders will relinquish any rights, as
shareholders, to any benefits to the Company of the outcome of the Action. The
Purchaser has no current plans or proposals that would result in an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation involving the Company, sale or transfer of any material amount of
assets of the Company, any change in the Board of Directors or management of
the Company, any material change in the capitalization or dividend policy of
the Company, any other material change in the Company's corporate structure or
business. However, to the extent information is available, the Purchaser
intends to continuously evaluate the Company and its prospects, and the
Purchaser reserves the right to change its plans and intentions.
13. DIVIDENDS AND DISTRIBUTIONS
If, on or after September 10, 1997, the Company should (a) split,
combine or otherwise change the Shares or its capitalization from that
disclosed in the Final Form 10-Q dated as of September 30, 1991, (b) acquire or
otherwise cause a reduction in the number of outstanding Shares or other
securities or (c) issue or sell additional Shares (other than the issuance of
Shares under option as disclosed in the Final Form 10-Q dated as of September
30, 1991, in accordance with the terms of such options as such terms have been
publicly disclosed in the Final Form 10-Q dated as of September 30, 1991),
shares of any other class of capital stock, other voting securities or any
securities convertible into, or rights, warrants or options, conditional or
otherwise, to acquire any of the foregoing, then, subject to the provisions of
Section 14, Purchaser, in its sole discretion, may make such adjustments as it
deems appropriate in the Offer Price and other terms of the Offer, including
without limitation, the number or type of securities offered to be purchased.
If, on or after September 10, 1997, the Company should declare or pay
any cash dividend on the Shares or other distribution on the Shares, or issue
with respect to the Shares any additional Shares, shares of any other class of
capital stock, other voting securities or any securities convertible into, or
rights, warrants or options, conditional or otherwise, to acquire, any of the
foregoing, payable or distributable to stockholders of record on a date prior
to the transfer of the Shares purchased pursuant to the Offer to Purchase, or
their nominees or transferees on the Company's stock transfer records, then,
subject to the provisions of Section 14, (a) the Offer Price may, in the sole
discretion of Purchaser, be reduced by the amount of any such cash dividend or
cash distribution and (b) the whole of any such noncash dividend, distribution
or issuance to be received by the tendering stockholders will (i) be received
and held by the tendering stockholders for the account of Purchaser and will be
required to be promptly remitted and transferred by each tendering stockholder
to the Depositary for the account of Purchaser, accompanied by appropriate
documentation of transfer, or (ii) at the direction of Purchaser, be exercised
for the benefit of Purchaser, in which case the proceeds of such exercise will
promptly be remitted to Purchaser. Pending such remittance and subject to
applicable law, Purchaser will be entitled to all rights and privileges as
owner of any such noncash dividend, distribution, issuance or proceeds and may
withhold the entire Offer Price or deduct from the Offer Price the amount or
value thereof, as determined by Purchaser in its sole discretion.
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14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provisions of the Offer, and in addition to
(and not in limitation of) the Purchaser's rights to extend and amend the Offer
at any time in its sole discretion, the Purchaser shall not be required to
accept for payment or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-l(c) under the Exchange Act (relating to a
bidder's obligation to pay for or return tendered securities promptly after
termination or withdrawal of such bidder's offer), pay for, and may delay the
acceptance for payment of or, subject to the restriction referred to above, the
payment for, any tendered Shares, may terminate or amend the Offer as to any
Shares not then paid for, if any of the following events shall occur or be
deemed by Purchaser to have occurred:
a. there shall be threatened, instituted or pending any action,
proceeding, application or counterclaim by any government or governmental,
regulatory or administrative authority or agency, domestic, foreign or
supranational (each, a "Governmental Entity"), or by any other person, domestic
or foreign, before any court or Governmental Entity, (i) (A) challenging or
seeking to, or which is reasonably likely to, make illegal, delay or otherwise
directly or indirectly restrain or prohibit, or seeking to, or which is
reasonably likely to, impose voting, procedural, price or other requirements,
in addition to those required by Federal securities laws (each as in effect on
the date of this Offer to Purchase), in connection with the making of the
Offer, the acceptance for payment of, or payment for, some of or all the Shares
by Purchaser, the Funds or any other affiliate of the Funds, (B) seeking to
obtain material damages or (C) otherwise directly or indirectly relating to the
Offer, (ii) seeking to prohibit the ownership or operation by Purchaser, the
Funds or any other affiliate of the Funds of all or any portion of the Shares
or of the business or assets of Purchaser, the Funds or any other affiliate of
the Funds or to compel Purchaser, the Funds or any other affiliate of the Funds
to dispose of or hold separate the Shares or all or any portion of the business
or assets of Purchaser, the Funds or any other affiliate of the Funds or
seeking to impose any limitation on the ability of Purchaser, the Funds or any
other affiliate of the Funds to conduct such business or own such assets, (iii)
seeking to impose or confirm limitations on the ability of Purchaser, the Funds
or any other affiliate of the Funds effectively to exercise full rights of
ownership of the Shares, including, without limitation, the right to vote any
Shares acquired or owned by Purchaser, the Funds or any other affiliate of the
Funds on all matters properly presented to the Company's stockholders, (iv)
seeking to require divestiture by Purchaser, the Funds or any other affiliate
of the Funds of any Shares, (v) seeking any material diminution in the benefits
expected to be derived by Purchaser, the Funds or any other affiliate of the
Funds as a result of the Offer, or (vi) otherwise directly or indirectly
relating to the Offer or which otherwise, in the sole judgment of Purchaser,
might materially adversely affect the Company or Purchaser, the Funds or any
other affiliate of the Funds or the value of the Shares;
b. there shall be any action taken, or any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction proposed, enacted,
enforced, promulgated, amended, issued or deemed applicable to (i) Purchaser,
the Funds or any other affiliate of the Funds or the Company or (ii) the Offer
by any government, legislative body or court, or Governmental Entity, that, in
the sole judgment of Purchaser, might, directly or indirectly, result in any of
the consequences referred to in clauses (i) through (vi) of paragraph (a)
above;
c. Purchaser shall have learned of any change that has, since the
filing of the Final 10-Q dated as of September 30, 1991, occurred or been
threatened (or any condition, event or development shall have occurred or been
threatened involving a prospective change) in the business, properties,
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assets, liabilities, capitalization, stockholders' equity, condition (financial
or otherwise), operations, licenses or franchises, results of operations or
prospects of the Company that, in the sole judgment of the Purchaser, is or may
be materially adverse to the Company, or the Purchaser shall have become aware
of any facts that, in the sole judgment of the Purchaser, have or may have
material adverse significance with respect to either the value of the Company
or the value of the Shares to the Purchaser;
d. there shall have occurred or been threatened (i) any general
suspension of trading in, or limitation on prices for, securities on any
national securities exchange or in the over-the-counter market in the United
States, (ii) any extraordinary or material adverse change in the financial
markets or major stock exchange indices in the United States, (iii) any
material change in United States currency exchange rates or any other currency
exchange rates or a suspension of, or limitation on, the markets therefor, (iv)
a declaration of a banking moratorium or any suspension of payments in respect
of banks in the United States, (v) any limitation (whether or not mandatory) by
any government, domestic, foreign or supranational, or Governmental Entity on,
or other event that, in the sole judgment of Purchaser, might affect the
extension of credit by banks or other lending institutions, (vi) a commencement
of a war or armed hostilities or other national or international calamity
directly or indirectly involving the United States or (vii) in the case of any
of the foregoing existing at the time of the commencement of the Offer, a
material acceleration or worsening thereof;
e. The Company shall have (i) split, combined or otherwise changed, or
authorized or proposed a split, combination or other change of the Shares or
its capitalization, (ii) acquired or otherwise caused a reduction in the number
of, or authorized or proposed the acquisition or other reduction in the number
of, outstanding Shares or other securities, (iii) issued or sold, or authorized
or proposed the issuance, distribution or sale of, additional Shares (other
than the issuance of Shares under option prior to the filing of the Final Form
10-Q dated as of September 30, 1991, in accordance with the terms of such
options as such terms have been publicly disclosed in the Final Form 10-Q dated
as of September 30, 1991), shares of any other class of capital stock, other
voting securities or any securities convertible into, or rights, warrants or
options, conditional or otherwise, to acquire, any of the foregoing, (iv)
declared or paid, or proposed to declare or pay, any dividend or other
distribution, whether payable in cash, securities or other property, on or with
respect to any shares of capital stock of the Company, (v) altered or proposed
to alter any material term of any outstanding security, (vi) authorized,
recommended, proposed or entered into an agreement, agreement in principle or
arrangement or understanding with respect to any release or relinquishment of
any material contractual or other right of the Company, or (vii) amended or
authorized or proposed any amendment to, the Company's Certificate of
Incorporation or By-laws, or Purchaser shall become aware that the Company
shall have proposed or adopted any such amendment that was not disclosed in
publicly available filings prior to the date hereof;
f. a tender or exchange offer for any Shares shall have been made or
publicly proposed to be made by any other person (including the Company or any
of its subsidiaries or affiliates), or it shall have been publicly disclosed or
Purchaser shall have otherwise learned that (i) any person or "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) shall have acquired or
proposed to acquire beneficial ownership of more than 5% of any class or series
of capital stock of the Company (including the Shares), through the acquisition
of stock, the formation of a group or otherwise, or shall have been granted any
right, option or warrant, conditional or otherwise, to acquire beneficial
ownership of more than 5% of any class or series of capital stock of the
Company (including the Shares), other than acquisitions for bona fide arbitrage
purposes only and other than
20
<PAGE>
as disclosed in a Schedule 13D or 13G on file with the Commission prior to
September 10, 1997, (ii) any such person, entity or group that prior to
September 10, 1997, had filed such a Schedule with the Commission has acquired
or proposes to acquire, through the acquisition of stock, the formation of a
group or otherwise, beneficial ownership of 1% or more of any class or series
of capital stock of the Company (including the Shares), or shall have been
granted any right, option or warrant, conditional or otherwise, to acquire
beneficial ownership of 1% or more of any class or series of capital stock of
the Company (including the Shares), (iii) any person or group shall have
entered into a definitive agreement or an agreement in principle or made a
proposal with respect to a tender offer or exchange offer or a merger,
consolidation or other business combination with or involving the Company or
(iv) any person, other than the Purchaser, if not filed prior to the date
hereof, shall have filed a Notification and Report Form under the HSR Act (or
amended a prior filing to increase the applicable filing threshold set forth
therein) or made a public announcement reflecting an intent to acquire the
Company or any assets or subsidiaries of the Company;
g. any approval, permit, authorization or consent of any Governmental
Entity (including those described or referred to in Section 15) shall not have
been obtained on terms satisfactory to Purchaser in its sole discretion; or
h. Purchaser shall have reached an agreement or understanding with the
Company providing for termination of the Offer;
which, in the sole judgment of Purchaser in any such case, and regardless of
the circumstances (including any action or inaction by Purchaser, the Funds or
any other affiliate of the Funds) giving rise to any such condition, makes it
inadvisable to proceed with the Offer and/or with such acceptance for payment
or payment.
The foregoing conditions are for the sole benefit of Purchaser and may
be asserted by Purchaser regardless of the circumstances giving rise to any
such condition or may be waived by Purchaser in whole or in part at any time
and from time to time in its sole discretion. The failure by Purchaser at any
time to exercise any of the foregoing rights will not be deemed a waiver of any
such right, the waiver of any such right with respect to particular facts and
circumstances will not be deemed a waiver with respect to any other facts and
circumstances and each such right will be deemed an ongoing right that may be
asserted at any time and from time to time. Any determination by Purchaser
concerning the events described in this Section 14 will be final and binding
upon all parties.
15. CERTAIN LEGAL MATTERS
General. Except as otherwise disclosed herein, based on a review of
publicly available information filed by the Company with the Commission, the
Purchaser is not aware of (i) any license or regulatory permit that appears to
be material to the business of the Company and its subsidiaries, taken as a
whole, that might be adversely affected by the acquisition of Shares by the
Purchaser pursuant to the Offer or (ii) any approval or other action, by any
governmental, administrative or regulatory agency or authority, domestic,
foreign or supranational, that would be required for the acquisition or
ownership of Shares by the Purchaser as contemplated herein. Should any such
approval or other action be required or desirable, the Purchaser currently
contemplates that such approval or action would be sought, except as described
below under "State Takeover Laws." While the Purchaser does not currently
intend to delay the acceptance for payment of Shares tendered pursuant to the
Offer pending the outcome of any such matter, there can be no assurance that
any such
21
<PAGE>
approval or action, if needed, would be obtained or would be obtained without
substantial conditions or that adverse consequences might not result to the
business of the Company, the Purchaser or the Funds or that certain parts of
the businesses of the Company, the Purchaser or the Funds might not have to be
disposed of in the event that such approvals were not obtained or any other
actions were not taken. The Purchaser's obligation under the Offer to accept
for payment and pay for Shares is subject to certain conditions. See Section
14.
State Takeover Laws. A number of states throughout the United States
have enacted takeover statutes that purport, in varying degrees, to be
applicable to attempts to acquire securities of corporations that are
incorporated or have assets, stockholders, executive offices or places of
business in such states. In Edgar v. MITE Corp., the Supreme Court of the
United States held that the Illinois Business Takeover Act, which involved
state securities laws that made the takeover of certain corporations more
difficult, imposed a substantial burden on interstate commerce and therefore
was unconstitutional. In CTS Corp. v. Dynamics Corp. of America, however, the
Supreme Court of the United States held that a state may, as a matter of
corporate law and, in particular, those laws concerning corporate governance,
constitutionally disqualify a potential acquiror from voting on the affairs of
a target corporation without prior approval of the remaining stockholders,
provided that such laws were applicable only under certain conditions.
Subsequently, a number of federal courts ruled that various state takeover
statutes were unconstitutional insofar as they apply to corporations
incorporated outside the state of enactment.
Purchaser has not attempted to comply with any state takeover statutes
in connection with the Offer. Purchaser believes that Section 203 of the
Delaware General Corporation Law may be inapplicable to the Company, but
whether or not applicable, the Offer is not conditioned upon approval of the
Board of Directors of the Company under Section 203. Purchaser reserves the
right to challenge the validity or applicability of any state law allegedly
applicable to the Offer and nothing in this Offer to Purchase nor any action
taken in connection herewith is intended as a waiver of that right. In the
event that any state takeover statute is found applicable to the Offer,
Purchaser might be unable to accept for payment or pay for the Shares tendered
pursuant to the offer or be delayed in continuing or consummating the Offer. In
such case, Purchaser may not be obligated to accept for payment or pay for any
Shares tendered. See Section 14.
Antitrust. Purchaser believes that the Hart-Scott-Rodino Antitrust Act
(the "HSR Act") is inapplicable to the Offer in light of the size of the
Company. If the provisions of the HSR Act were applicable to the Offer, the
acquisition of Shares under the Offer could be consummated only following the
expiration of a 15-calendar day waiting period following the filing by the
Purchaser of a Notification and Report Form with respect to the Offer, unless
the Purchaser received a request for additional information or documentary
material from the Antitrust Division or the FTC or early termination of the
waiting period is granted. If, within the initial 15-day waiting period, either
the Antitrust Division or the FTC requested additional information or material
from the Purchaser concerning the Offer, the waiting period would be extended
and would expire at 11:59 p.m., New York City time, on the tenth calendar day
after the date of substantial compliance by the Purchaser with such request.
Only one extension of the waiting period pursuant to a request for additional
information is authorized by the HSR Act. Thereafter, such waiting period may
be extended only by court order or with the consent of the Purchaser. In
practice, complying with a request for additional information or material can
take a significant amount of time. In addition, if the Antitrust Division or
the FTC raises substantive issues in connection with a proposed transaction,
the parties frequently engage in negotiations with the relevant governmental
agency concerning possible means of
22
<PAGE>
addressing those issues and may agree to delay consummation of the transaction
while such negotiations continue.
The Antitrust Division and the FTC frequently scrutinize the legality
under the antitrust laws of transactions. At any time before or after
Purchaser's acquisition of the Shares pursuant to the Offer, the Antitrust
Division or the FTC could take such action under the antitrust laws as it deems
necessary or desirable in the public interest, including seeking to enjoin the
purchase of the Shares pursuant to the Offer or seeking the divestiture of the
Shares acquired by Purchaser. Private parties may also bring legal action under
the antitrust laws under certain circumstances. There can be no assurance that
a challenge to the Offer on antitrust grounds will not be made or, if such a
challenge is made, of the result thereof.
16. FEES AND EXPENSES
Beacon Hill Partners, Inc. has been retained by the Purchaser as
Information Agent in connection with the Offer. The Information Agent may
contact holders of Shares by mail, telephone, facsimile and personal interview
and may request brokers, dealers and other nominee shareholders to forward
material relating to the Offer to beneficial owners of Shares. The Purchaser
will pay the Information Agent reasonable and customary compensation for all
such services in addition to reimbursing the Information Agent for reasonable
out-of-pocket expenses in connection therewith. The Purchaser has agreed to
indemnify the Information Agent against certain liabilities and expenses in
connection with the Offer, including, without limitation, certain liabilities
under the federal securities laws.
Harris Trust Company of New York has been retained as the Depositary.
The Purchaser will pay the Depositary reasonable and customary compensation for
its services in connection with the Offer, will reimburse the Depositary for
its reasonable out-of-pocket expenses in connection therewith and will
indemnify the Depositary against certain liabilities and expenses in connection
therewith, including, without limitation, certain liabilities under the federal
securities laws.
Purchaser will pay soliciting dealer's fees of $.10 per Share to
brokers, dealers and other persons for soliciting tenders of Shares of their
clients pursuant to the Offer. In addition, brokers, dealers, commercial banks
and trust companies and other nominees will, upon request, be reimbursed by the
Purchaser for customary clerical and mailing expenses incurred by them in
forwarding offering materials to their clients.
17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or
on behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the securities,
blue-sky or other laws of such jurisdiction. The Purchaser is not aware of any
jurisdiction in which the making of the Offer or the acceptance thereof would
not be in compliance with the laws of such jurisdiction. If the Purchaser
becomes aware of any jurisdiction where the making of the Offer or the tender
of Shares is not in compliance with any applicable law, the Purchaser will make
a good faith effort to comply with such law. If, after such good faith effort,
the Purchaser cannot comply with such law, the Offer will not be made to (nor
will tenders be accepted from or on behalf of) the holders of Shares residing
in such jurisdiction. To the extent the Purchaser becomes aware of any state
law that would limit the class of offerees in the Offer,
23
<PAGE>
the Purchaser will amend the Offer and, depending on the timing of such
amendment, if any, will extend the Offer to provide adequate dissemination of
such information to such holders of Shares prior to the expiration of the
Offer. In any jurisdiction the securities, blue sky or other laws of which
require the Offer to be made by a licensed broker or dealer, the Offer shall be
deemed to be made on behalf of the Purchaser by one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER NOT CONTAINED HEREIN OR IN THE LETTER
OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
THE PURCHASER HAS FILED WITH THE COMMISSION A TENDER OFFER STATEMENT
ON SCHEDULE 14D-1 (THE ("SCHEDULE 14D-1") PURSUANT TO RULE 14D-3 UNDER THE
EXCHANGE ACT, TOGETHER WITH EXHIBITS, FURNISHING CERTAIN ADDITIONAL INFORMATION
WITH RESPECT TO THE OFFER, AND MAY FILE AMENDMENTS THERETO. SUCH SCHEDULE 14D-1
AND ANY AMENDMENTS THERETO, INCLUDING EXHIBITS, MAY BE INSPECTED AND COPIES MAY
BE OBTAINED IN THE MANNER SET FORTH IN SECTION 8 WITH RESPECT TO THE COMPANY
(EXCEPT THAT SUCH MATERIAL WILL NOT BE AVAILABLE AT THE REGIONAL OFFICES OF THE
COMMISSION).
KARENINA PROPERTIES, LLC
September 10, 1997
24
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF THE FUNDS AND THE PURCHASER
The Funds. The Purchaser is wholly owned by the Funds. The Funds were
each formed to engage in the buying and selling of securities for investment
for its own account. Section H Partners, L.P., a New York limited partnership
("Section H"), is the sole general partner of Gotham and Gotham II. Karenina
Corp., a New York corporation ("Karenina"), and DPB Corp., a New York
corporation ("DPB"), are the sole general partners of Section H. Karenina is
wholly owned by William A. Ackman. DPB is wholly owned by David P. Berkowitz.
Set forth below are the name, business address and present principal
occupation or employment, and material occupations, positions, offices or
employments for the past five years of each director and executive officer of
each of Karenina and DPB. Except as otherwise noted, the business address of
each such person is 110 East 42nd Street, 18th Floor, New York, New York 10017
and, except as otherwise noted, each such person is a United States citizen. In
addition, except as otherwise noted, each director and executive officer of the
Funds have been employed in his or her present principal occupation listed
below during the last five years.
PRINCIPAL OCCUPATION OR EMPLOYMENT,
NAME 5-YEAR EMPLOYMENT HISTORY
---- -------------------------
William A. Ackman Director, President, Secretary and
Treasurer of Karenina Corp.
(from 1993 to present). A
General Partner of Section H
from March 1993 to present.
Manager of the Purchaser since
1997.
David P. Berkowitz Director, President, Secretary and
Treasurer of DPB Corp. (from
1992 to present). A General
Partner of Section H from March
1993 to present.
S-1
<PAGE>
SCHEDULE II
TRANSACTIONS IN THE SHARES
DATE NO OF SHARES PURCHASED PRICE PER SHARE
---- -- -- ------ --------- ----- --- -----
7/7/97 1,975,600 $.05
9/5/97 500 $.05
S-2
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each shareholder of the
Company or such shareholder's broker, dealer, commercial bank, trust company or
other nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Hand/Overnight Delivery:
Wall Street Station Receive Window
P.O. Box 1023 77 Water Street, 5th Floor
New York, New York 10268-1023 New York, New York 10005
Fax:
(212) 701-7636
Telephone:
(212) 701-7624
Questions and requests for assistance should be directed to the
Information Agent at its respective address or telephone numbers set forth
below. Additional copies of this Offer to Purchase, the Letter of Transmittal
and all other tender offer materials may be obtained from the Information Agent
as set forth below, and will be furnished promptly at the Purchaser's expense.
You may also contact your broker, dealer, commercial bank, trust company or
other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
BEACON HILL PARTNERS, INC.
90 Broad Street
20th Floor
New York, New York 10004
(800) 854-9486
(Toll Free)
(212) 843-8500
(Call Collect)
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
LANDMARK LAND COMPANY, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED SEPTEMBER 10, 1997
BY
KARENINA PROPERTIES, LLC
- -------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, OCTOBER 7, 1997,
UNLESS THE OFFER IS EXTENDED.
- -------------------------------------------------------------------------------
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Hand/Overnight Delivery:
Wall Street Station Receive Window
P.O. Box 1023 77 Water Street, 5th Floor
New York, New York 10268-1023 New York, New York 10005
Fax:
(212) 701-7636
Telephone:
(212) 701-7624
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS LETTER OF
TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE THE SUBSTITUTE FORM W-9
PROVIDED BELOW.
<PAGE>
<TABLE>
<CAPTION>
DESCRIPTION OF SHARES TENDERED
- ------------------------------------------------------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Holder(s)
(Please Fill in, if Blank, Exactly as Name(s) Appears Share Certificate(s) and Share(s) Tendered
on Share Certificate(s)) (Attach Additional List, if Necessary)
- ------------------------------------------------------------------------------------------------------------------------------
Shares
Share Evidenced Shares
Certificate by Share Tendered**
Number(s)* Certificate(s)*
----------------------------------------------------------------
<S> <C> <C> <C>
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
Total Shares
- ------------------------------------------------------------------------------------------------------------------------------
* Need not be completed by shareholders delivering Shares by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares evidenced by each Share Certificate delivered to
the Depositary are being tendered hereby. See Instruction 4.
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by shareholders either
if certificates evidencing Shares (as defined below) are to be forwarded
herewith or if delivery of Shares is to be made by book-entry transfer to the
Depositary's account at The Depository Trust Company ("DTC") or the
Philadelphia Depository Trust Company ("PDTC") (each a "Book-Entry Transfer
Facility" and collectively, the "Book- Entry Transfer Facilities") pursuant to
the book-entry transfer procedure described in Section 2 of the Offer to
Purchase (as defined below). Delivery of documents to a Book-Entry Transfer
Facility does not constitute delivery to the Depository.
Shareholders whose certificates evidencing Shares ("Share
Certificates") are not immediately available or who cannot deliver their Share
Certificates and all other documents required hereby to the Depository prior to
the Expiration Date (as defined in Section 1 of the Offer to Purchase) or who
cannot complete the procedure for delivery by book-entry transfer on a timely
basis and who wish to tender their Shares must do so pursuant to the guaranteed
delivery procedure described in Section 2 of the Offer to Purchase. See
Instruction 2.
[ ] CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE
DEPOSITORY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER FACILITIES AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution
- ------------------------------------------------------------------------------
Check Box of Applicable Book-Entry Transfer Facility:
(CHECK ONE) [ ] DTC [ ] PDTC
Account Number Transaction Code Number
------------------- -------------------
[ ] CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITORY AND COMPLETE THE
FOLLOWING. PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED
DELIVERY.
Name(s) of Registered Holder(s)
Window Ticket No. (if any)
- -------------------------------------
Date of Execution of Notice of Guaranteed Delivery
Name of Institution which Guaranteed Delivery
- -------------------------------------
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS
LETTER OF TRANSMITTAL CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to Karenina Properties, LLC, a New York
limited liability company ("Purchaser") wholly owned by Gotham Partners, L.P.,
a New York limited partnership ("Gotham"), and Gotham Partners II, L.P., a New
York limited partnership ("Gotham II") (together, the "Funds"), the above
described shares of common stock, par value $.50 per share (the "Shares"), of
Landmark Land Company, Inc., a Delaware corporation (the "Company"), pursuant
to Purchaser's offer to purchase all outstanding Shares, at $1.00 per Share,
net to the seller in cash, without interest thereon (the "Offer Price"), upon
the terms and subject to the conditions set forth in the Offer to Purchase,
dated September 10, 1997 (the "Offer to Purchase"), receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which, as amended from time to
time, together constitute the "Offer"). The undersigned understands that the
Purchaser reserves the right to transfer or assign, in whole or from time to
time in part, to one or more of its affiliates, the right to purchase all or
any portion of the Shares tendered pursuant to the Offer.
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith, in accordance with the terms of the Offer (including, if the
Offer is extended or amended, the terms and conditions of such extension or
amendment), the undersigned hereby sells, assigns and transfers to, or upon the
order of, Purchaser all right, title and interest in and to all the Shares that
are being tendered hereby and all dividends, distributions (including, without
limitation, distributions of additional Shares) and rights declared, paid or
distributed in respect of such Shares on or after September 10, 1997
(collectively, "Distributions"), and irrevocably appoints the Depository 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 Share Certificates evidencing such Shares and all Distributions,
or transfer ownership of such Shares and all Distributions on the account books
maintained by a Book-Entry Transfer Facility, together, in either case, with
all accompanying evidences of transfer and authenticity, to or upon the order
of Purchaser, (ii) present such Shares 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 all Distributions, all in
accordance with the terms of the Offer.
By executing this Letter of Transmittal, the undersigned irrevocably
appoints William A. Ackman and David S. Klafter of the Purchaser as proxies of
the undersigned, each with full power of substitution, to the full extent of
the undersigned's rights with respect to the Shares tendered by the undersigned
and accepted for payment by the Purchaser (and any and all Distributions). All
such proxies shall be considered coupled with an interest in the tendered
Shares. This appointment will be effective if, when, and only to the extent
that the Purchaser accepts such Shares for payment pursuant to the Offer. Upon
such acceptance for payment, all prior proxies given by the undersigned with
respect to such Shares (and such other Shares and securities) will, without
further action, be revoked, and no subsequent proxies may be given nor any
subsequent written consent executed by the undersigned (and, if given or
executed, will not be deemed to be effective) with respect thereto. The
designees of the Purchaser named above will, with respect to the Shares and
other securities for which the appointment is effective, be empowered to
exercise all voting and other rights of the undersigned as they in their sole
discretion may deem proper at any annual or special meeting of the shareholders
of the Company or any adjournment or postponement thereof, by written consent
in lieu of any such meeting or otherwise, and the Purchaser reserves the right
to require that, in order for Shares or other securities to be deemed validly
tendered, immediately upon the
<PAGE>
Purchaser's acceptance for payment of such Shares, the Purchaser must be able
to exercise full voting rights with respect to such Shares.
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 such Shares 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 that none of such Shares and
Distributions will be subject to any adverse claim. The undersigned, upon
request, shall execute and deliver all additional documents deemed by the
Depository 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 Depository
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 tendered
hereby or deduct from such purchase price, the amount or value of such
Distribution as determined by Purchaser in its sole discretion.
No authority herein conferred or agreed to be conferred shall be
affected by, and all such authority shall survive, the death or incapacity of
the undersigned. All obligations of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. Except as otherwise stated in the Offer to Purchase, this tender
is irrevocable.
The undersigned understands that tenders of Shares pursuant to any one
of the procedures described in Section 2 of the Offer to Purchase and in the
instructions hereto will constitute the undersigned's acceptance of the terms
and conditions of the Offer. Purchaser's acceptance of such Shares for payment
will constitute a binding agreement between the undersigned and Purchaser upon
the terms and subject to the conditions of the Offer, including, without
limitation, the undersigned's representation and warranty that the undersigned
owns the Shares being tendered.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the purchase price of all Shares
purchased, and return all Share Certificates evidencing Shares not purchased or
not tendered, in the name(s) of the registered holder(s) appearing above under
"Description of Shares Tendered." Similarly, unless otherwise indicated in the
box entitled "Special Delivery Instructions," please mail the check for the
purchase price of all Shares purchased and all Share Certificates evidencing
Shares not tendered or not purchased (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing above
under "Description of Shares Tendered." In the event that either the box
entitled "Special Payment Instructions" and/or "Special Delivery Instructions"
are completed, please issue the check for the purchase price of all Shares
purchased and return all Share Certificates evidencing Shares not purchased or
not tendered in the name(s) of, and/or mail such check and Share Certificates
to, the person(s) so indicated. 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(s) thereof if Purchaser does not
purchase any of the Shares tendered hereby.
<PAGE>
- -------------------------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or Share Certificates evidencing Shares not tendered or not purchased
are to be issued in the name of someone other than the undersigned.
Issue [ ] check and/or Share Certificate(s) to:
Name:
--------------------------------------------------------------------------
(PRINT)
Address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(ZIP CODE)
- -------------------------------------------------------------------------------
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY
NUMBER
(See Substitute Form W-9 on reverse side)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or Share Certificates evidencing Shares not tendered or not purchased
are to be mailed to someone other than the undersigned, or to the undersigned
at an address other than that shown under "Description of Shares Tendered."
Mail [ ] check and/or Share Certificate(s) to:
Name:
- -------------------------------------------------------------------------------
(PRINT)
Address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(ZIP CODE)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
IMPORTANT
SHAREHOLDERS: SIGN HERE
(Also Please Complete Substitute Form W-9 Included Herein)
X
------------------------------------------------------------------------------
X
X
------------------------------------------------------------------------------
X
(SIGNATURE(S) OF HOLDER(S))
Dated:
-------------------------------------
Must be signed by registered holder(s) exactly as name(s) appear(s) on Share
Certificates or on a security position listing or by a person(s) authorized to
become registered holder(s) by certificates and documents transmitted 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 provide the following information.
See Instruction 5.
Name(s):
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(PLEASE PRINT)
Capacity (full title)
Address:
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone No.:
---------------------------------------------------
Taxpayer Identification or Social Security No.:
--------------------------------
(SEE SUBSTITUTE FORM W-9 INCLUDED HEREIN)
GUARANTEE OF SIGNATURE(S)
(If Required--See Instructions 1 and 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY.
PLACE MEDALLION GUARANTEE IN SPACE BELOW.
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[ ] Check if your tender of Shares was solicited by a broker. Name and
address of broker below.
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Name of broker
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Name of firm
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Address of firm
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. All signatures on this Letter of
Transmittal must be guaranteed by a firm which is a member of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., or by a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in
the Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(an "Eligible Institution"), unless (i) this Letter of Transmittal is signed by
the registered holder(s) of the Shares (which term, for purposes of this
document, shall include any participant in a Book-Entry Transfer Facility whose
name appears on a security position listing as the owner of Shares) tendered
hereby and such holder(s) has (have) completed neither the box entitled
"Special Payment Instructions" nor the box entitled "Special Delivery
Instructions" on the reverse hereof or (ii) such Shares are tendered for the
account of an Eligible Institution. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARE CERTIFICATES. This
Letter of Transmittal is to be used either if Share Certificates are to be
forwarded herewith or if Shares are to be delivered by book-entry transfer
pursuant to the procedure set forth in Section 2 of the Offer to Purchase.
Share Certificates evidencing all physically tendered Shares, or a confirmation
of a book-entry transfer into the Depository's account at a Book-Entry Transfer
Facility of all Shares delivered by book-entry transfer, as well as a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) and
any other documents required by this Letter of Transmittal, or an Agent's
Message in the case of book-entry transfers, must be received by the Depository
at one of its addresses set forth on the reverse hereof prior to the Expiration
Date (as defined in Section 1 of the Offer to Purchase). If Share Certificates
are forwarded to the Depository in multiple deliveries, a properly completed
and duly executed Letter of Transmittal must accompany each such delivery.
Shareholders whose Share Certificates are not immediately available, who cannot
deliver their Share Certificates and all other required documents to the
Depository prior to the Expiration Date or who cannot complete the procedure
for delivery by book-entry transfer on a timely basis may tender their Shares
pursuant to the guaranteed delivery procedure described in Section 2 of the
Offer to Purchase. Pursuant to such procedure: (i) such tender must be made by
or through an Eligible Institution; (ii) a properly completed and duly executed
Notice of Guaranteed Delivery, substantially in the form made available by
Purchaser, must be received by the Depository prior to the Expiration Date; and
(iii) the Share Certificates evidencing all physically delivered Shares in
proper form for transfer by delivery, or a confirmation of a book-entry
transfer into the Depository's account at a Book-Entry Transfer Facility of all
Shares delivered by book-entry transfer, in each case together with a Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed,
with any required signature guarantees, and any other documents required by
this Letter of Transmittal, or an Agent's Message in the case of book-entry
transfers, must be received by the Depository within three trading days after
the date of execution of such Notice of Guaranteed Delivery, all as described
in Section 2 of the Offer to Purchase.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE
CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY
BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING
SHAREHOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED
BY THE DEPOSITORY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and
no fractional Shares will be purchased. By execution of this Letter of
Transmittal (or a facsimile hereof), all tendering shareholders waive any right
to receive any notice of the acceptance of their Shares for payment.
<PAGE>
3. INADEQUATE SPACE. If the space provided herein under "Description
of Shares Tendered" is inadequate, the Share Certificate numbers, the number of
Shares evidenced by such Share Certificates and the number of Shares tendered
should be listed on a separate schedule and attached hereto.
4. PARTIAL TENDERS (NOT APPLICABLE TO SHAREHOLDERS WHO TENDER BY
BOOK-ENTRY TRANSFER). If fewer than all the Shares evidenced by any Share
Certificate delivered to the Depository herewith are to be tendered hereby,
fill in the number of Shares which are to be tendered in the box entitled
"Number of Shares Tendered." In such cases, new Share Certificate(s) evidencing
the remainder of the Shares that were evidenced by the Share Certificates
delivered to the Depository herewith will be sent to the person(s) signing this
Letter of Transmittal, unless otherwise provided in the box entitled "Special
Delivery Instructions" on the reverse hereof, as soon as practicable after the
expiration or termination of the Offer. All Shares evidenced by Share
Certificates delivered to the Depository will be deemed to have been tendered
unless otherwise 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 Share Certificates evidencing such Shares without
alteration, enlargement or any other change whatsoever. If any Share tendered
hereby is owned of record by two or more persons, all such persons must sign
this Letter of Transmittal.
If any of the Shares tendered hereby are registered in the names of
different holders, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of such
Shares.
If this Letter of Transmittal is signed by the registered holder(s) of
the Shares tendered hereby, no endorsements of Share Certificates or separate
stock powers are required, unless payment is to be made to, or Share
Certificates evidencing Shares not tendered or not purchased are to be issued
in the name of, a person other than the registered holder(s), in which case,
the Share Certificate(s) evidencing the Shares tendered hereby must be endorsed
or accompanied by appropriate stock powers, in either case signed exactly as
the name(s) of the registered holder(s) appear(s) on such Share Certificate(s).
Signatures on such Share Certificate(s) and stock powers must be guaranteed by
an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the Share Certificate(s)
evidencing the Shares tendered hereby must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on such Share Certificate(s). Signatures on such
Share Certificate(s) and stock powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal or any Share Certificate or stock power
is signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, such person should so indicate when signing, and
proper evidence satisfactory to Purchaser of such person's authority so to act
must be submitted.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this
Instruction 6, Purchaser will pay all stock transfer taxes with respect to the
sale and transfer of any Shares to it or its order pursuant to the Offer. If,
however, payment of the purchase price of any Shares purchased is to be made
to, or Share Certificate(s) evidencing Shares not tendered or not purchased are
to be issued in the name of, a person other than the registered holder(s), the
amount of any stock transfer taxes (whether imposed on the registered
holder(s), such other person or otherwise) payable on account of the transfer
to such other person will be deducted from the purchase price of such Shares
purchased, unless evidence
<PAGE>
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 Share Certificates
evidencing the Shares tendered hereby.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the
purchase price of any Shares tendered hereby is to be issued, or Share
Certificate(s) evidencing Shares not tendered or not purchased are to be
issued, in the name of a person other than the person(s) signing this Letter of
Transmittal or if such check or any such Share Certificate is to be sent to
someone other than the person(s) signing this Letter of Transmittal or to the
person(s) signing this Letter of Transmittal but at an address other than that
shown in the box entitled "Description of Shares Tendered" on the reverse
hereof, the appropriate boxes on the reverse of this Letter of Transmittal must
be completed.
8. WAIVER OF CONDITIONS. The conditions to the Offer may be waived by
the Purchaser in whole or in part at any time and from time to time in its sole
discretion.
9. QUESTIONS AND REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Information Agent
at its address or telephone number set forth below. Additional copies of the
Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed
Delivery may be obtained from the Information Agent or from brokers, dealers,
commercial banks or trust companies.
10. SUBSTITUTE FORM W-9. Each tendering shareholder is required to
provide the Depository with a correct Taxpayer Identification Number ("TIN") on
the Substitute Form W-9 which is provided under "Important Tax Information"
below, and to certify, under penalties of perjury, that such number is correct
and that such shareholder is not subject to backup withholding of federal
income tax. If a tendering shareholder has been notified by the Internal
Revenue Service 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 tendering shareholder to 31% federal income tax withholding on the
payment of the purchase price of all Shares purchased from such shareholder. If
the tendering 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 write
"Applied For" in the space provided for the TIN in Part I of the Substitute
Form W-9, and sign and date the Substitute Form W-9. If "Applied For" is
written in Part I and the Depository is not provided with a TIN within 60 days,
the Depository will withhold 31% on all payments of the purchase price to such
shareholder until a TIN is provided to the Depository.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF), PROPERLY
COMPLETED AND DULY EXECUTED (TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES
AND SHARE CERTIFICATES OR CONFIRMATION OF BOOK- ENTRY TRANSFER AND ALL OTHER
REQUIRED DOCUMENTS) OR A PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF
GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITORY PRIOR TO THE EXPIRATION
DATE (AS DEFINED IN THE OFFER TO PURCHASE).
<PAGE>
IMPORTANT TAX INFORMATION
Under the federal income tax law, a shareholder whose tendered Shares
are accepted for payment is required by law to provide the Depository (as
payer) with such shareholder's correct TIN on Substitute Form W-9 below. If
such shareholder is an individual, the TIN is such shareholder's social
security number. If the Depository is not provided with the correct TIN, the
shareholder may be subject to a $50 penalty imposed by the Internal Revenue
Service. In addition, payments that are made to such shareholder with respect
to Shares purchased pursuant to the Offer may be subject to backup withholding
of 31%.
Certain shareholders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such individual must submit a Form W-8, Certificate of
Foreign Status, signed under penalties of perjury, attesting to such
individual's exempt status. Forms of such statements can be obtained from the
Depository. See the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional instructions.
If backup withholding applies, the Depository is required to withhold
31% of any payments made 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 withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a
shareholder with respect to Shares purchased pursuant to the Offer, the
shareholder is required to notify the Depository of such shareholder's correct
TIN by completing the form below certifying (a) that the TIN provided on
Substitute Form W-9 is correct (or that such shareholder is awaiting a TIN),
and (b) that (i) such shareholder has not been notified by the Internal Revenue
Service that such shareholder 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 DEPOSITORY
The shareholder is required to give the Depository the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are in more than one name or are not in the name
of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance
on which number to report. If the tendering shareholder has not been issued a
TIN and has applied for a number or intends to apply for a number in the near
future, the shareholder should write "Applied For" in the space provided for
the TIN in Part 1, and sign and date the Substitute Form W-9. If "Applied For"
is written in Part I and the Depository is not provided with a TIN within 60
days, the Depository will withhold 31% of all payments of the purchase price to
such shareholder until a TIN is provided to the Depository.
<PAGE>
ALL TENDERING SHAREHOLDERS MUST COMPLETE THE FOLLOWING:
PAYER'S NAME: HARRIS TRUST COMPANY OF NEW YORK
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<S> <C> <C>
PART I--Taxpayer Identification Number--
Enter taxpayer identification number in the box at
SUBSTITUTE right. (For most individuals, this is your social security ------------------------------
For all accounts number. If you do not have a number, see obtaining a Social Security Number
Number in the enclosed Guidelines.) Certify by or
Form W-9 signing and dating below. Note: If the account is in
more than one name, see the chart in the enclosed
Guidelines to determine which number to ------------------------------
give the payer. Employee Identification Number
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PART II--For Payees Exempt From Backup Withholding, see the enclosed Guidelines and
complete as instructed therein.
DEPARTMENT OF THE CERTIFICATION--Under penalties of perjury, I certify that:
TREASURY INTERNAL (1) The number shown on this form is my correct Taxpayer Identification Number (or I
REVENUE am waiting for a number to be issued to me), and
PAYER'S REQUEST (2) I am not subject to backup withholding either because I have not been notified by the
FOR TAXPAYER Internal Revenue Service (the "IRS") that I am subject to backup withholding as a
IDENTIFICATION NUMBER result of failure to report all interest or dividends, or the IRS has notified me
that I am no longer subject to backup withholding.
CERTIFICATE INSTRUCTIONS--You must cross out item (2) above if you have been notified by
the IRS that you are subject to backup withholding because of under reporting interest or
dividends on your tax return. However, if after being notified by the IRS that you 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). (Also see instructions
in the enclosed Guidelines.)
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SIGNATURE:
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DATE:
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM 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.
The Information Agent for the Offer is:
BEACON HILL PARTNERS, INC.
90 Broad Street
20th Floor
New York, New York 10004
(800) 854-9486
(Toll Free)
(212) 843-8500
(Call Collect)
September 10, 1997
<PAGE>
OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
OF
LANDMARK LAND COMPANY, INC.
AT
$1.00 NET PER SHARE
BY
KARENINA PROPERTIES LLC
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT
NEW YORK CITY TIME, ON TUESDAY, OCTOBER 7, 1997,
UNLESS THE OFFER IS EXTENDED.
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September 10, 1997
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been engaged by Karenina Properties, LLC, a New York limited
liability company (the "Purchaser") wholly owned by Gotham Partners, L.P., a
New York limited partnership ("Gotham"), and Gotham Partners II, L.P., a New
York limited partnership ("Gotham II"; together, the "Funds"), to act as
Information Agent in connection with the Purchaser's offer to purchase all
outstanding shares of common stock, par value $.50 per share (the "Shares"), of
Landmark Land Company, Inc., a Delaware corporation (the "Company"), at a price
of $1.00 per Share, net to the seller in cash, without interest thereon (the
"Offer Price"), upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated September 10, 1997 (the "Offer to Purchase"), and in
the related Letter of Transmittal (which, as amended from time to time,
together constitute the "Offer") enclosed herewith.
THE OFFER IS SUBJECT TO CERTAIN TERMS AND CONDITIONS. SEE SECTION 14
OF THE OFFER TO PURCHASE. THE OFFER IS NOT CONDITIONED ON THE RECEIPT OF
FINANCING OR ANY MINIMUM NUMBER OF SHARES BEING TENDERED.
THE PURCHASER WILL PAY SOLICITING DEALER'S FEES OF $.10 PER SHARE TO
ANY BROKER OR DEALER IN CONNECTION WITH THE SOLICITATION OF TENDERS OF SHARES
PURSUANT TO THE OFFER. IN ADDITION, THE PURCHASER WILL, UPON REQUEST, REIMBURSE
YOU FOR CUSTOMARY MAILING AND HANDLING EXPENSES INCURRED BY YOU IN FORWARDING
THE ENCLOSED MATERIALS TO YOUR CLIENTS.
Please furnish copies of the enclosed materials to those of your
clients for whose accounts you hold Shares registered in your name or in the
name of your nominee.
For your information and for forwarding to your clients for whom you
hold Shares registered in your name or in the name of your nominee, or who hold
Shares registered in their own names, we are enclosing the following documents:
1. The Offer to Purchase, dated September 10, 1997;
<PAGE>
2. The Letter of Transmittal to be used by holders of Shares in accepting
the Offer and tendering Shares;
3. The Notice of Guaranteed Delivery to be used to accept the Offer if
the certificates evidencing such Shares (the "Share Certificates") are
not immediately available or time will not permit all required
documents to reach the Depositary (as defined in the Offer to
Purchase) prior to the Expiration Date (as defined in the Offer to
Purchase) or the procedure for book-entry transfer cannot be completed
on a timely basis;
4. A letter which may be sent to your clients for whose accounts you hold
Shares registered in your name or in the name of your nominees, with
space provided for obtaining such clients' instructions with regard to
the Offer;
5. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9; and
6. A return envelope addressed to the Depositary.
In order to take advantage of the Offer, a duly executed and properly
completed Letter of Transmittal and any other required documents should be sent
to the Depositary and certificates representing the tendered Shares should be
delivered, or such Shares should be tendered by book-entry transfer, all in
accordance with the instructions set forth in the Letter of Transmittal and the
Offer to Purchase. Upon the terms and subject to the conditions of the Offer
(including, if the Offer is extended or amended, the terms and conditions of
any such extension or amendment), the Purchaser will purchase, by accepting for
payment, and will pay for the Shares validly tendered and not withdrawn prior
to the Expiration Date promptly after the Expiration Date. For purposes of the
Offer, the Purchaser will be deemed to have accepted for payment, and thereby
purchased, tendered Shares as, if and when the Purchaser gives oral or written
notice to the Depositary of the Purchaser's acceptance of such Shares for
payment pursuant to the Offer. In all cases, payment for Shares purchased
pursuant to the Offer will be made only after timely receipt by the Depositary
of (i) the Share Certificates or timely confirmation of a book-entry transfer
of such Shares, if such procedure is available, into the Depositary's account
at The Depository Trust Company or the Philadelphia Depositary Trust Company
pursuant to the procedures set forth in Section 2 of the Offer to Purchase,
(ii) the Letter of Transmittal (or a facsimile thereof), properly completed and
duly executed, with any required signature guarantees, or an Agent's Message
(as defined in Section 2 of the Offer to Purchase) and (iii) any other
documents required by the Letter of Transmittal.
The Purchaser will pay any stock transfer taxes incident to the
transfer to it of validly tendered Shares, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS
AS PROMPTLY AS POSSIBLE. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 7, 1997, UNLESS THE OFFER IS
EXTENDED.
In order to take advantage of the Offer, a duly executed and properly
completed Letter of Transmittal (or a facsimile thereof), with any required
signature guarantees and any other required documents, should be sent to the
Depositary, and certificates evidencing the tendered Shares should be
<PAGE>
delivered or such Shares should be tendered by book-entry transfer, all in
accordance with the Instructions set forth in the Letter of Transmittal and the
Offer to Purchase.
If holders of Shares wish to tender Shares, but it is impracticable
for them to forward their Share Certificates or other required documents to the
Depositary prior to the Expiration Date or to comply with the Procedures for
book-entry transfer on a timely basis, a tender may be effected by following
the guaranteed delivery procedures specified under Section 2 of the Offer to
Purchase.
Any inquiries you may have with respect to the Offer should be
addressed to Beacon Hill Partners, Inc., the Information Agent, at its address
and telephone number set forth on the back cover page of the Offer to Purchase.
Additional copies of the enclosed materials may be obtained by calling
Beacon Hill Partners, Inc., the Information Agent, collect at (212) 843-8500.
Very truly yours,
BEACON HILL PARTNERS, INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY OTHER PERSON AS AN AGENT OF THE PURCHASER, THE DEPOSITARY, THE INFORMATION
AGENT, OR ANY AFFILIATE OF ANY OF THE FOREGOING, OR AUTHORIZE YOU OR ANY OTHER
PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN
CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED AND THE STATEMENTS
CONTAINED THEREIN.
<PAGE>
OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
OF
LANDMARK LAND COMPANY, INC.
AT
$1.00 NET PER SHARE
BY
KARENINA PROPERTIES, LLC
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 7, 1997,
UNLESS THE OFFER IS EXTENDED.
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September 10, 1997
To Our Clients:
Enclosed for your consideration is an Offer to Purchase, dated
September 10, 1997 (the "Offer to Purchase"), and the related Letter of
Transmittal (which, as amended from time to time, together constitute the
"Offer") in connection with the Offer by Karenina Properties, LLC, a New York
limited liability company (the "Purchaser") wholly owned by Gotham Partners,
L.P., a New York limited partnership ("Gotham"), and Gotham Partners II, L.P.,
a New York limited partnership ("Gotham II"; together, the "Funds"), to
purchase all outstanding shares of common stock, par value $.50 per share (the
"Shares") of Landmark Land Company, Inc., a Delaware corporation (the
"Company"), at a price of $1.00 per Share, net to the seller in cash, without
interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in the Offer to Purchase.
THE MATERIAL IS BEING SENT TO YOU AS THE BENEFICIAL OWNER OF SHARES
HELD BY US FOR YOUR ACCOUNT BUT NOT REGISTERED IN YOUR NAME. WE ARE THE HOLDER
OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE
MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE
LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT
BE USED BY YOU TO TENDER SHARES HELD BY US FOR YOUR ACCOUNT.
We request instructions as to whether you wish to have us tender on
your behalf any or all of the Shares held by us for your account, upon the
terms and subject to the conditions set forth in the Offer to Purchase.
<PAGE>
Your attention is invited to the following:
1. The tender price is $1.00 per Share, net to the seller in
cash, without interest thereon.
2. The Offer and withdrawal rights will expire at 12:00 midnight,
New York City time, on Tuesday, October 7, 1997, unless the Offer is
extended.
3. The Offer is being made for any and all outstanding Shares.
4. The Offer is not conditioned on the receipt of financing or
upon any minimum number of shares being tendered.
5. Tendering shareholders will not be obligated to pay brokerage
fees or commissions. Except as set forth in Instruction 6 of the
Letter of Transmittal, tendering shareholders will not be obligated to
pay stock transfer taxes on the purchase of Shares by the Purchaser
pursuant to the Offer.
6. The Purchaser will pay soliciting dealer's fees to us of $.10
per Share tendered and purchased on the Offer in connection with the
solicitation of tenders of Shares by our clients pursuant to the
Offer. In addition, the Purchaser will, upon request, reimburse us for
customary mailing and handling expenses incurred by us in forwarding
the endorsed materials to our clients.
The Offer is made solely by the Offer to Purchase and the related
Letter of Transmittal. The Offer is not being made to (nor will tenders be
accepted from or on behalf of) holders of Shares in any jurisdiction in which
the making of the Offer or the acceptance thereof would not be in compliance
with the securities, blue sky or other laws of such jurisdiction. The Purchaser
is not aware of any jurisdiction in which the making of the Offer or the
acceptance thereof would not be in compliance with the laws of such
jurisdiction. To the extent the Purchaser becomes aware of any state law that
would limit the class of offerees in the Offer, the Purchaser will amend the
Offer and, depending on the timing of such amendment, if any, will extend the
Offer to provide adequate dissemination of such information to such holders of
shares prior to the expiration of the Offer. In any jurisdiction the
securities, blue sky or other laws of which require the Offer to be made by a
licensed broker or dealer, the Offer is intended to be made on behalf of the
Purchaser by one or more registered brokers or dealers licensed under the laws
of such jurisdiction.
If you wish to have us tender any or all of your Shares, please so
instruct us by completing, executing and returning to us the instruction form
contained in this letter. An envelope in which to return your instructions to
us is enclosed. If you authorize the tender of your Shares, all such Shares
will be tendered unless otherwise specified on the instruction form contained
in this letter. Your instructions should be forwarded to us in ample time to
permit us to submit a tender on your behalf prior to the expiration of the
Offer.
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING COMMON SHARES
OF
LANDMARK LAND COMPANY, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed
Offer to Purchase, dated September 10, 1997, and the related Letter of
Transmittal (which, as amended from time to time, together constitute the
"Offer"), in connection with the Offer by Karenina Properties, LLC, a New York
limited liability company (the "Purchaser") wholly owned by Gotham Partners,
L.P., a New York limited partnership ("Gotham"), and Gotham Partners II, L.P.,
a New York limited partnership ("Gotham II"; together, the "Funds"), to
purchase all outstanding shares of common stock, par value $0.50 per share (the
"Shares"), of Landmark Land Company, Inc., a Delaware corporation (the
"Company"), at a price equal to $1.00 per Share, net to the seller in cash.
This will instruct you to tender to the Purchaser the number of Shares
indicated below (or, if no number is indicated below, all Shares) held by you
for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer to Purchase.
Number of Shares to be Tendered*:
Shares
- ----------------------------
Account Number:
-------------------
Dated:
----------------------------
SIGN HERE
----------------------------------------------
Signature(s)
----------------------------------------------
Please type or print name(s)
----------------------------------------------
Please type or print address(es) here
Area Code and Telephone Number
---------------------------------
Taxpayer Identification or
Social Security Number(s)
- ---------------------------------------------------------------
* Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
OF
LANDMARK LAND COMPANY, INC.
As set forth in Section 2 of the Offer to Purchase (as defined below),
this form or one substantially equivalent hereto must be used to accept the
Offer (as defined below) if certificates for shares of Common Stock, par value
$.50 per share (the "Shares"), of Landmark Land Company, Inc., a Delaware
corporation (the "Company") are not immediately available or if the procedure
for book-entry transfer cannot be completed on a timely basis or time will not
permit all required documents to reach the Depositary prior to the Expiration
Date (as defined in the Offer to Purchase). This form may be delivered by hand
to the Depositary or transmitted by telegram, facsimile transmissions or mail
to the Depositary and must include a guarantee by an Eligible Institution (as
defined in the Offer to Purchase). See Section 2 of the Offer to Purchase.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Hand/Overnight Delivery:
Wall Street Station Receive Window
P.O. Box 1023 77 Water Street, 5th Floor
New York, New York 10268-1023 New York, New York 10005
Fax:
(212) 701-7636
Telephone:
(212) 701-7624
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF
INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE DOES NOT
CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on
a Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE>
LADIES AND GENTLEMEN:
The undersigned hereby tenders to Karenina Properties, LLC (the
"Purchaser"), which is wholly owned by Gotham Partners, L.P., a New York
limited partnership ("Gotham"), and Gotham Partners II, L.P., a New York
limited partnership ("Gotham II"), upon the terms and subject to the conditions
set forth in the Purchaser's Offer to Purchase dated September 10, 1997 (the
"Offer to Purchase") and the related Letter of Transmittal, receipt of which is
hereby acknowledged, the number of Shares (as such term is defined in the Offer
to Purchase) set forth below, all pursuant to the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase.
Number of Shares
---------------------------------------------------------------
Name(s) of Record Holder(s):
---------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Certificate Nos. (if available):
-----------------------------------------------
PLEASE PRINT
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Address(es):
-------------------------------------------------------------------
ZIP CODE
Area Code and Tel. No.:
--------------------------------------------------------
(Check one box if Shares will be tendered by book-entry transfer)
[ ] The Depository Trust Company
[ ] Philadelphia Depository Trust Company
Signature(s):
------------------------------------------------------------------
- -------------------------------------------------------------------------------
Account Number
-----------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
----------------------------
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in the Security Transfer Agent's
Medallion Program, the New York Stock Exchange Medallion Signature Guarantee
Program or the Stock Exchange Medallion Program, hereby guarantees to deliver
to the Depositary either the certificates representing the Shares tendered
hereby, in proper form for transfer, or a Book-Entry Confirmation with respect
to such Shares, in any such case together with a properly completed and duly
executed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, or an Agent's Message, and any other required documents
within three trading days after the date hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to such Eligible Institution.
All terms used herein have the meanings set forth in the Offer to Purchase.
(PLEASE PRINT)
Name of Firm: _______________________________________________________________
_____________________________________________________________________________
(AUTHORIZED SIGNATURE)
Address: ____________________________________________________________________
(ZIP CODE)
Name: ________________________________________________________________________
______________________________________________________________________________
Title: _______________________________________________________________________
Area Code and
Tel No.: _____________________________________________________________________
Dated: _______________________________________________________________________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE;
CERTIFICATES FOR SHARES SHOULD BE SENT WITH YOUR LETTER
OF TRANSMITTAL.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE
THE PAYOR -- 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. Individual Taxpayer Identification
numbers have nine digits and are used solely for tax purposes by individuals
who are required to have a taxpayer identification number but who do not have
one and are not eligible to obtain a Social Security number. The table below
will help determine the number to give the Payor.
<TABLE>
<CAPTION>
GIVE THE GIVE THE
FOR THIS TYPE OF ACCOUNT IDENTIFICATION FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF-- NUMBER OF--
- ------------------------------------------ ---------------------------- ----------------------------------- -------------------
<S> <C> <C> <C>
1. An individual's account The individual 8. Sole proprietorship The Owner(4)
account
2. Two or more individuals The actual owner of the 9. A valid trust, estate, or Legal entity (Do not
(joint account) account or, if combined pension trust furnish the identifying
funds, any one of the number of the personal
individuals(1) representative or
trustee unless the
legal entity itself is
not designated in
the account title.)(5)
3. Husband and wife (joint The actual owner of the 10. Corporate account The Corporation
account) account or, if joint funds,
either person(1)
4. Custodian account of a minor The minor(2) 11. Religious, charitable, or The organization
(Uniform Gift to Minors Act) educational organization
account
5. Adult and minor (joint the adult or, if the minor 12. Partnership account held The partnership
account) is the only contributor, the in the name of the
minor(1) business
6. Account in the name of The ward, minor, or 13. Association, club or The organization
guardian or committee for a incompetent person(3) other tax-exempt
designated ward, minor, or organization
incompetent person
7. a. The usual revocable The grantor-trustee(1) 14. A broker or registered The broker or nominee
savings trust account nominee
(grantor is also trustee)
b. So-called trust account The actual owner(1) 15. Account with the The public entity
that is not a legal or Department of
valid trust under State Agriculture in the name
law of a public entity (such
as a State or local
governmental school
disctrict or prison) that
receives agricultural
program payments
- ---------------------------------------------------------------------- ----------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, Form
W-7, Application for Individual Taxpayer Identification Number, or Form SS-4,
Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include
the following:
o A corporation.
o A financial institution.
o An organization exempt from tax under section 501(a), or an individual
retirement plan.
o The United States or any agency or
instrumentality thereof.
o A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
o A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
o An international organization or any agency, or
instrumentality thereof.
o A registered dealer in securities or commodities registered in the U.S.
or a possession of the U.S.
o A real estate investment trust.
o A common trust fund operated by a bank under section 584(a).
o An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
o An entity registered at all times under the Investment Company Act of
1940.
o A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
o Payments to nonresident aliens subject to
withholding under section 1441.
o Payments to Partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
o Payments of patronage dividends where the
account received is not paid in money.
o Payments made by certain foreign organizations.
o Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
o Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
o Payments of tax-exempt interest (including exempt interest dividends
under section 852).
o Payments described in section 6049(b)(5) to
nonresident aliens.
o Payments on tax-free covenant bonds under
section 1451.
o Payments made to a nominee.
Exempt payees described above should file Form W-9
to avoid possible erroneous backup withholding.
FILE THIS FORM WITH THE PAYER, FURNISH
YOUR TAXPAYER IDENTIFICATION NUMBER,
WRITE "EXEMPT" ON THE FACE OF THE
FORM, AND RETURN IT TO THE PAYER. IF
THE PAYMENTS ARE INTEREST, DIVIDENDS,
OR PATRONAGE DIVIDENDS, ALSO SIGN AND
DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE. -- Section 6109 requires most recipients of dividend
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1993, payers must generally
withhold 31% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. -- If you
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 which results in no
imposition of backup withholding, you are subject to a
penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. --
Falsifying certifications or affirmations may subject
you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT
YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
2
