EXHIBIT 12(a)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
ND HOLDINGS, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED DECEMBER 21, 2000
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M. CENTRAL
STANDARD TIME, ON Monday, JANUARY 22, 2001 UNLESS THE OFFER IS EXTENDED.
THE DEPOSITARY FOR THE OFFER IS:
ND Resources, Inc.
1 North Main Street
Minot, ND 58703
THE INFORMATION AGENT FOR THE OFFER IS:
Morrow & Co., Inc.
445 Park Avenue - 5th Floor
New York, NY 10022
Banks or Brokers Call: (800) 654-2468
For Information Shareholders Call Toll Free: (800) 607-0088
DELIVERY OF THIS INSTRUMENT AND ALL OTHER DOCUMENTS TO ANY ADDRESS OR
TRANSMISSION OF INSTRUCTIONS TO A FACSIMILE NUMBER OTHER THAN AS SET FORTH
ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. DELIVERIES TO THE COMPANY WILL
NOT BE FORWARDED TO THE DEPOSITARY AND, THEREFORE, WILL NOT CONSTITUTE VALID
DELIVERY. DELIVERIES TO THE BOOK-ENTRY TRANSFER FACILITY WILL NOT CONSTITUTE
VALID DELIVERY TO THE DEPOSITARY.
THIS LETTER OF TRANSMITTAL, INCLUDING THE ACCOMPANYING INSTRUCTIONS, SHOULD
BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed only if (a) certificates for
Shares (as defined below) are being forwarded herewith or (b) a tender of
Shares is being made concurrently by book-entry transfer to the account
maintained by ND Resources, Inc. (the "Depositary") at The Depository Trust
Company (the "Book-Entry Transfer Facility") pursuant to Section 3 of the Offer
to Purchase. Stockholders who cannot deliver the certificates for their Shares
to the Depositary prior to the Expiration Date (as defined in the Offer to
Purchase) or who cannot complete the procedure for book-entry transfer on a
timely basis or who cannot deliver a Letter of Transmittal and all other
required documents to the Depositary prior to the Expiration Date (as defined
below) must, in each case, tender their Shares pursuant to the guaranteed
delivery procedure set forth in Section 3 of the Offer to Purchase (as defined
below). See Instruction 2.
Stockholders who cannot deliver their Share certificates and any other
required documents to the Depositary by the Expiration Date (as defined in the
Offer to Purchase) must tender their Shares using the guaranteed delivery
procedure set forth in Section 3 of the Offer to Purchase. See Instruction 2.
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DESCRIPTION OF SHARES TENDERED
(SEE INSTRUCTIONS 3 AND 4)
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SHARES TENDERED
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDERS(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) APPEAR(S) ON SHARE
CERTIFICATE(S))
(ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
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<TABLE>
<CAPTION>
TOTAL NUMBER
SHARE OF SHARES NUMBER
CERTIFICATE REPRESENTEDBY OF SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
<S> <C> <C>
----------------------- ------------------------- ---------------------
----------------------- ------------------------- ---------------------
----------------------- ------------------------- ---------------------
TOTAL SHARES: _____________
</TABLE>
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Indicate below the order (by certificate number) in which Shares are to be
purchased in event of proration. (Attach additional list if necessary)*** See
Instruction 7.
Shares: 1st: _______________ 2nd: _______________ 3rd: _______________
* DOES NOT need to be completed if Shares are tendered by book-entry
transfer.
** If you desire to tender less than all Shares evidenced by any certificates
listed above, please indicate in this column the number of Shares you wish
to tender. Otherwise, all Shares evidenced by such certificates will be
deemed to have been tendered. See Instruction 4.
*** If you do not designate an order, in the event less than all Shares
tendered are purchased due to proration, Shares will be selected for
purchase by the Depositary. See Instruction 7.
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN
HAVE BEEN LOST OR DESTROYED. NUMBER OF SHARES REPRESENTED BY LOST OR
DESTROYED CERTIFICATES: _______________ . TO PROPERLY TENDER SUCH SHARES
IN THIS OFFER, YOU MUST RECEIVE A REPLACEMENT CERTIFICATE FOR SUCH SHARES
AND DELIVER THAT CERTIFICATE TO THE DEPOSITARY. TO RECEIVE A REPLACEMENT
CERTIFICATE, CALL THE COMPANY'S TRANSFER AGENT, ND RESOURCES, INC. (701)
857-0230
THIS BOX IS FOR USE BY ELIGIBLE INSTITUTIONS ONLY:
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution: ____________________________________________
DTC Account Number: _______________________________________________________
Transaction Code Number: __________________________________________________
/ / CHECK HERE IF CERTIFICATES FOR TENDERED SHARES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE
DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s): ___________________________________________
Date of Execution of Notice of Guaranteed Delivery: _______________________
Name of Institution that Guaranteed Delivery: _____________________________
DTC Account Number: _______________________________________________________
Transaction Code Number:___________________________________________________
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
To ND Resources, Inc.:
The undersigned hereby tenders to ND Holdings, Inc., a North Dakota
corporation (the "Company"), the above described shares of the Company's common
stock, no par value per share (the "Shares"), represented by the above
described certificates for Shares at a price of $1.25 per Share, net to the
seller in cash, upon the terms and subject to the conditions set forth in the
Company's Offer to Purchase, dated December 21, 2000 (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").
Subject to and effective upon acceptance for payment of the Shares tendered
hereby in accordance with the terms and subject to the conditions 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, the Company all right, title and interest
in and to all the Shares that are being tendered hereby and orders the
registration of all such Shares if tendered by book-entry transfer and hereby
irrevocably constitutes and appoints the Depositary as the true and lawful
agent and attorney-in-fact of the undersigned (with full knowledge that said
Depositary also acts as the agent of the Company) with respect to such Shares
with full power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to: (i) deliver certificate(s)
for such Shares or transfer ownership of such Shares on the account books
maintained by the Book-Entry Transfer Facility, together in either such case
with all accompanying evidences of transfer and authenticity, to, or upon the
order of, the Company upon receipt by the Depositary, as the undersigned's
agent, of the aggregate Purchase Price (as defined below) with respect to such
Shares; (ii) present certificates for such Shares for cancellation and transfer
on the Company's books; and (iii) receive all benefits and otherwise exercise
all rights of beneficial ownership of such Shares, subject to the next
paragraph, all in accordance with the terms of the Offer.
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The undersigned has full power and authority to tender, sell, assign and
transfer the Shares tendered hereby and further represents and warrants to the
Company that:
(a) the undersigned understands that tenders of Shares pursuant to any one
of the procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute the undersigned's acceptance of the terms
and conditions of the Offer, including the undersigned's representation and
warranty that: (i) the undersigned has a "net long position" in Shares at least
equal to the Shares tendered within the meaning of Rule 14e-4 under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and (ii) such
tender of Shares complies with Rule 14e-4 under the 1934 Act;
(b) when and to the extent the Company accepts such Shares for purchase,
the Company will acquire good, marketable and unencumbered title to them, free
and clear of all security interests, liens, charges, encumbrances, conditional
sales agreements or other obligations relating to their sale or transfer, and
not subject to any adverse claim;
(c) on request, the undersigned will execute and deliver any additional
documents the Depositary or the Company deems necessary or desirable to
complete the assignment, transfer and purchase of the Shares tendered hereby;
(d) the undersigned has read and agrees to all of the terms of the Offer;
and
(e) the Company's acceptance for payment of Shares tendered pursuant to the
Offer will constitute a binding agreement between the undersigned and the
Company upon terms and subject to the conditions of the Offer.
All authorities conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned, and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, executors, administrators, successors, assigns,
trustees in bankruptcy, and legal representatives of the undersigned. Except
as stated in the Offer to Purchase, this tender is irrevocable.
The name(s) and address(es) of the registered holder(s) should be printed
above, if they are not already printed above, exactly as they appear on the
certificates representing Shares tendered hereby. The certificate numbers, the
number of Shares represented by such certificates and the number of Shares that
the undersigned wishes to tender, should be set forth in the appropriate boxes
above. Any order (by certificate number) in which the tendered Shares must be
purchased should also be indicated above.
The undersigned understands that the Company has, upon the terms and
subject to the conditions of the Offer, determined a single per Share price of
$1.25 per Share, net to the seller in cash, without interest thereon (the
"Purchase Price"), that it will pay for Shares properly tendered and not
withdrawn prior to the Expiration Date pursuant to the Offer. The undersigned
understands that (i) all Shares properly tendered and not properly withdrawn
prior to the Expiration Date will be purchased at such Purchase Price, net to
the Seller in cash, upon the terms and subject to the conditions of the Offer,
including odd lot and proration provisions, and (ii) the Company will return
all other Shares not purchased pursuant to the Offer, including Shares not
purchased because of proration.
The undersigned recognizes that, under certain circumstances set forth in
the Offer to Purchase, the Company may terminate or amend the Offer or may
postpone the acceptance for payment of, or the payment for, Shares tendered or
may accept for payment less than all of the Shares tendered hereby. In any such
event, the undersigned understands that certificate(s) for any Shares delivered
herewith but not tendered or not purchased will be returned to the undersigned
at the address indicated above, unless otherwise indicated under the "Special
Payment Instructions" or "Special Delivery Instructions" boxes below. The
undersigned recognizes that the Company has no obligation, pursuant to the
Special Payment Instructions, to transfer any certificate for Shares from the
name of its registered holder, or to order the registration or transfer of
Shares tendered by book-entry transfer, if the Company purchases none of the
Shares represented by such certificate or tendered by such book-entry transfer.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the aggregate Purchase Price of any Shares purchased, and/
or return any Shares not tendered or not purchased, in the name(s) of the
undersigned. Similarly, unless otherwise indicated under "Special Delivery
Instructions," please mail the check for the aggregate Purchase Price of any
Shares purchased and/or any certificates for Shares not tendered or not
purchased (and accompanying documents, as appropriate) to the undersigned at
the address shown below the undersigned's signature(s). In the event that
both "Special Payment Instructions" and "Special Delivery Instructions" are
completed, please issue the check for the aggregate Purchase Price of any
Shares purchased and/or return any Shares not tendered or not purchased in
the name(s) of, and mail such check and/or any certificates to, the person(s)
so indicated. The undersigned recognizes that the Company has no obligation,
pursuant to the "Special Payment Instructions," to transfer any Shares from
the name of the registered holder(s) thereof if the Company does not accept
for payment any of the Shares so tendered.
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NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE
ACCOMPANYING INSTRUCTIONS CAREFULLY.
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 5, 6 AND 8)
To be completed ONLY if certificates for Shares not tendered or not purchased
and/or any check for the aggregate Purchase Price of Shares purchased are to
be issued in the name of and sent to someone other than the undersigned.
Issue:
/ / Check to: / / Certificates to:
Name(s): ....................................................
(Please Print)
Address: ....................................................
.............................................................
(Include Zip Code)
..............................................................
(Taxpayer Identification or Social Security Number)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 5, 6 AND 8)
To be completed ONLY if certificates for Shares not tendered or not purchased
and/or any check for the aggregate Purchase Price of Shares purchased, issued
in the name of the undersigned, are to be mailed to someone other than the
undersigned or to the undersigned at an address other than that shown above.
Mail:
/ / Check to: / / Certificates to:
Name(s): .....................................................
(Please Print)
Address: .....................................................
...............................................................
(Include Zip Code)
-------------------------------------------
PLEASE SIGN HERE
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(TO BE COMPLETED BY ALL STOCKHOLDERS)
(PLEASE ALSO COMPLETE AND RETURN THE ENCLOSED SUBSTITUTE FORM W-9)
(Must be signed by the registered holder(s) exactly as name(s) appear(s) on
certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by certificate(s) and documents transmitted with
this Letter of Transmittal. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation or another
person acting in a fiduciary or representative capacity, please set forth full
title and see Instruction 5.)
SIGN HERE:
______________________________________________________________________________
SIGNATURES OF OWNER(S)
Dated: _____________________________________, 200_
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)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Name of Firm: _____________________________________
Authorized Signature: _____________________________
Name: _____________________________________________
(Please Print)
Title: ____________________________________________
Address: __________________________________________
(Include Zip Code)
Area Code and Telephone Number: ___________________
Dated: _____________________________________, 200_
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a financial
institution (including commercial banks, savings and loan associations, and
brokerage houses) that is a member of a recognized signature guarantee
medallion program within the meaning of Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (an "Eligible
Institution") unless: (i) this Letter of Transmittal is signed by the
registered holder(s) of the Shares tendered (which term, for purposes of this
document, shall include any participant in the Book-Entry Transfer Facility
whose name appears on a security position listing as the owner of Shares)
exactly as the name of the registered holder appears on the certificate
tendered with this Letter of Transmittal and payment and delivery are to be
made directly to such owner, unless such holder has completed either the box
entitled "Special Delivery Instructions" or the box entitled "Special Payment
Instructions" included herein; or (ii) if such Shares are tendered for the
account of an Eligible Institution. See Instructions 5 and 8.
2. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be used only if certificates for
Shares are delivered with it to the Depositary (or such certificates will be
delivered pursuant to a Notice of Guaranteed Delivery previously sent to the
Depositary) or if a tender for Shares is being made concurrently pursuant to
the procedure for tender by book-entry transfer set forth in Section 3 of the
Offer to Purchase. The Depositary must receive (a) a properly completed and
duly executed Letter of Transmittal or a facsimile thereof in accordance with
the instructions of the Letter of Transmittal, including any required signature
guarantees, certificates, and any other documents required by the Letter of
Transmittal, on or prior to the Expiration Date at one of its addresses set
forth on the back cover of the Offer to Purchase, (b) such Shares delivered
pursuant to the procedures for book-entry transfer described in Section 3 of
the Offer to Purchase (and a confirmation of such delivery is received by the
Depositary, including an Agent's Message, if the tendering stockholder has not
delivered a Letter of Transmittal) or (c) such Shares validly tendered through
the Book-Entry Transfer Facility's Automated Tender Offer Program ("ATOP"),
prior to the Expiration Date. The term "Agent's Message" means a message,
transmitted by the Book-Entry Transfer Facility to, and received by the
Depositary and forming a part of the Book-Entry Confirmation (as defined in
Section 3 of the Offer to Purchase), which states that the Book-Entry Transfer
Facility has received an express acknowledgment from the participant in the
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 Company may enforce such agreement against the participant. If
certificates are to be forwarded to the Depositary in multiple deliveries, a
properly completed and duly executed Letter of Transmittal must accompany each
such delivery.
Participants in the Book-Entry Transfer Facility may tender their Shares in
accordance with ATOP, to the extent it is available to such participants for
the Shares they wish to tender. A stockholder tendering through ATOP must
expressly acknowledge that the stockholder has reviewed and agreed to be bound
by the Letter of Transmittal and that the Letter of Transmittal may be enforced
against such stockholder.
Stockholders whose certificates are not immediately available or who cannot
deliver certificates for their Shares and all other required documents to the
Depositary before the Expiration Date, or whose Shares cannot be delivered on
a timely basis pursuant to the procedures for book-entry transfer, must, in any
case, tender their Shares by or through any Eligible Institution by properly
completing and duly executing and delivering a Notice of Guaranteed Delivery
(or facsimile of it) and by otherwise complying with the guaranteed delivery
procedure set forth in Section 3 of the Offer to Purchase. Pursuant to such
procedure: (a) such tender must be made by or through an Eligible Institution,
(b) a properly completed and duly executed Notice of Guaranteed Delivery
substantially in the form provided by the Company (with any required signature
guarantees) must be received by the Depositary prior to the Expiration Date,
and (c) certificates for all physically delivered Shares in proper form for
transfer by delivery, or in the case of Shares by confirmation of a book-entry
transfer, into Depositary's account at the Book-Entry Transfer Facility of all
Shares delivered electronically, in each case together with a properly
completed and duly executed Letter of Transmittal (or manually signed facsimile
thereof) with any required signature guarantees (or, in the case of book-entry
transfer an Agent's Message or, in the case of a tender through ATOP, the
specified acknowledgment), and all other documents required by this Letter of
Transmittal, must be received by the Depositary within three NASDAQ OTC trading
days after receipt by the Depositary of such Notice of Guaranteed Delivery, all
as provided in Section 3 of the Offer to Purchase.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile transmission or mail to the Depositary and must include a
signature guarantee by an Eligible Institution in the form set forth in such
Notice. For Shares to be tendered validly pursuant to the guaranteed delivery
procedure, the Depositary must receive the Notice of Guaranteed Delivery on or
before the Expiration Date.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR SHARES,
THE LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS IS AT THE ELECTION
AND RISK OF THE TENDERING STOCKHOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED
MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL
CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY.
-26-
The Company will not accept any alternative, conditional or contingent
tenders, nor will it purchase any fractional Shares, except as expressly
provided in the Offer to Purchase. All tendering stockholders, by execution
of this Letter of Transmittal (or a facsimile of it), waive any right to
receive any notice of the acceptance of their tender. DELIVERY OF DOCUMENTS TO
THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
3. Inadequate Space. If the space provided in the boxes captioned
"Description of Shares Tendered" is inadequate, then the certificate numbers
and/or the number of Shares should be listed on a separate signed schedule and
attached to this Letter of Transmittal.
4. Partial Tenders and Unpurchased Shares. (Not applicable to stockholders
who tender by book-entry transfer.) If less than all of the Shares evidenced by
any certificate are to be tendered, fill in the number of Shares that are to be
tendered in the column entitled "Number of Shares Tendered," in the box
captioned "Description of Shares Tendered." In such case, if any tendered
Shares are purchased, a new certificate for the remainder of the Shares
(including any Shares not purchased) evidenced by the old certificate(s) will
be issued and sent to the registered holder(s), unless otherwise specified in
either the "Special Payment Instructions" or "Special Delivery Instructions"
box on this Letter of Transmittal, as soon as practicable after the Expiration
Date. Unless otherwise indicated, all Shares represented by the certificates(s)
listed and delivered to the Depositary will be deemed to have been tendered.
5. Signatures on Letter of Transmittal, Stock Powers and Endorsements.
(a) If this Letter of Transmittal is signed by the registered holder(s)
of the Shares tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the certificate(s)
without any change whatsoever.
(b) If any tendered Shares are registered in the names of two or more
joint holders, each such holder must sign this Letter of Transmittal.
(c) If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal (or facsimiles of it) as there
are different registrations of certificates.
(d) When this Letter of Transmittal is signed by the registered holder(s)
of the Shares listed and transmitted hereby, no endorsement(s) of
certificate(s) representing such Shares or separate stock power(s)
are required unless payment is to be made or the certificate(s) for
the Shares not tendered or not purchased are to be issued to a person
other than the registered holder(s).
(e) If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the certificate(s) listed, or if payment is
to be made or certificate(s) not tendered or not purchased are to be
issued to a person other than the registered holder(s), the
certificate(s) must be endorsed or accompanied by appropriate stock
power(s), in either case signed exactly as the name(s) of the
registered holder(s) appears on the certificate(s). SIGNATURE(S) ON
SUCH CERTIFICATE(S) OR STOCK POWER(S) MUST BE GUARANTEED BY AN
ELIGIBLE INSTITUTION. See Instruction 1.
(f) If this Letter of Transmittal or any certificate(s) or stock
powers(s) are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons should
so indicate when signing and must submit proper evidence satisfactory
to the Company of their authority to so act.
6. Order of Purchase in Event of Proration. As described in Section 1 of
the Offer to Purchase stockholders may designate the order in which their
Shares are to be purchased in the event of proration. The order of purchase
may have an effect on the Federal income tax treatment of the Purchase Price
for the Shares purchased. If you do not designate an order, in the event that
less than all Shares tendered are purchased due to proration, Shares will be
selected for purchase by the Depositary.
7. Special Payment and Delivery Instructions. If a check for the Purchase
Price of any Shares tendered hereby is to be issued in the name of, and/or any
certificates not tendered or not accepted for purchase are to be returned to,
a person other than the signer of the Letter of Transmittal or if such
certificates and/or checks are to be mailed to someone other than the person
signing the Letter of Transmittal or to the signer at a different address,
the boxes captioned "Special Payment Instructions" and/or "Special Delivery
Instructions" on this Letter of Transmittal should be completed as
applicable and signatures must be guaranteed as described in Instruction 1.
Stockholders tendering Shares by book-entry transfer will have any Shares
not accepted for payment returned by crediting the account maintained by
such stockholder at the Book-Entry Transfer Facility.
8. Irregularities. All questions as to the number of Shares to be
accepted, the price to be paid therefor and the validity, form, eligibility
(including time of receipt) and acceptance for payment of any tender of
Shares will be determined by the Company in its sole discretion, which
determinations shall be final and binding on all parties. The Company reserves
the absolute right to reject any or all tenders of Shares it determines not to
be in proper form or the acceptance of which or payment for which may, in the
opinion of the Company's counsel, be unlawful. The Company also reserves the
absolute right to waive any of the conditions of the Offer and any defect or
irregularity in the tender of any particular Shares, and the Company's
interpretation of the terms of the Offer (including these instructions) will
be final and binding on all parties. No tender of Shares will be deemed to be
properly made until all defects and irregularities have been cured or waived.
Unless waived, any defects or irregularities in connection with tenders must
be cured within such time as the Company shall determine. Neither the Company
nor the Depositary, or any other person, is or will be obligated to give
notice of any defects or irregularities in tenders and none of them will
incur any liability for failure to give any such notice.
-27-
9. Questions and Requests for Assistance and Additional Copies. Questions
and requests for assistance may be directed to, or additional copies of the
Offer to Purchase, the Notice of Guaranteed Delivery and this Letter of
Transmittal may be obtained from, the Information Agent at the address and
telephone number set forth in this Letter of Transmittal or from your broker,
dealer, commercial bank or trust company.
10. Form W-9 and Form W-8. Under the federal income tax backup withholding
rules, unless an exemption applies under the applicable law and regulations,
31% of the gross proceeds payable to a stockholder or other payee pursuant to
the Offer must be withheld and remitted to the United States Treasury, unless
the stockholder or other payee provides his or her taxpayer identification
number (employer identification number or social security number) to the
Depositary and certifies that such number is correct. Therefore, each
tendering stockholder should complete and sign the Substitute Form W-9 included
as part of the Letter of Transmittal so as to provide the information and
certification necessary to avoid backup withholding, unless such stockholder
otherwise establishes to the satisfaction of the Depositary that it is not
subject to backup withholding. Certain stockholders (including, among others,
all corporations and certain foreign individuals) are not subject to these
backup withholding and reporting requirements. In order for a foreign
individual to qualify as an exempt recipient, that individual must submit an
IRS Form W-8 or a Substitute Form W-8, signed under penalties of perjury,
attesting to that individual's exempt status. Such statements can be obtained
from the Depositary.
11. Withholding on Foreign Stockholders. Even if a foreign stockholder has
provided the required certification to avoid backup withholding, the
Depositary will withhold federal income taxes equal to 30% of the gross
payments payable to a foreign stockholder or his agent unless the Depositary
determines that an exemption from or a reduced rate of withholding is available
pursuant to a tax treaty or that an exemption from withholding is applicable
because such gross proceeds are effectively connected with the conduct of a
trade or business in the United States. For this purpose, a foreign stockholder
is a stockholder that is not (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity created or organized in or
under the laws of the United States, any State or any political subdivision
thereof or (iii) any estate the income of which is subject to United States
federal income taxation regardless of the source of such income, or (iv) a
trust whose administration is subject to the primary supervision of a United
States court and which has one or more United States fiduciaries who have the
authority to control all substantial decisions of the trust. In order to
obtain a reduced rate of withholding pursuant to a tax treaty, a foreign
stockholder must deliver to the Depositary a properly completed Form 1001. In
order to obtain an exemption from withholding on the grounds that the gross
proceeds paid pursuant to the Offer are effectively connected with the conduct
of a trade or business within the United States, a foreign stockholder must
deliver to the Depositary a properly completed Form 4224. The Depositary will
determine a stockholder's status as a foreign stockholder and eligibility for
a reduced rate of, or an exemption from, withholding by reference to
outstanding certificates or statements concerning eligibility for a reduced
rate of, or exemption from, withholding (e.g., Form 1001 or Form 4224) unless
facts and circumstances indicate that such reliance is not warranted. A
foreign stockholder may be eligible to obtain a refund of all or a portion of
any tax withheld if such stockholder meets the "complete redemption,"
"substantially disproportionate" or "not essentially equivalent to a dividend"
test described in Section 13 of the Offer to Purchase or is otherwise able to
establish that no tax or a reduced amount of tax is due. Backup withholding
generally will not apply to amounts subject to the 30% or treaty-reduced rate
of withholding. Foreign stockholders are urged to consult their tax advisors
regarding the application of federal income tax withholding, including
eligibility for a withholding tax reduction or exemption and refund procedures.
12. Lost, Destroyed or Stolen Certificates. If any certificate(s)
representing Shares has been lost or destroyed, the stockholder should promptly
notify the Depositary of the number of Shares represented by the certificate
so lost or destroyed. To properly tender such Shares in this Offer, you must
receive a replacement certificate for such Shares and deliver that certificate
to the Depositary. To receive a replacement certificate, call the Company's
transfer agent, ND Resources, Inc., at (800) 601-5593. This Letter of
Transmittal and related documents cannot be processed until the transfer
agent's procedures for replacing lost or destroyed certificates have been
followed. Please allow at least ten to fourteen business days to complete
such procedures.
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PAYER'S NAME: ND Resources, Inc.
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<TABLE>
<CAPTION>
<S> <C> <C>
SUBSTITUTE PART I--Taxpayer Identification Number--for
FORM W-9 all accounts, enter taxpayer identification
Department of the Treasury number in the box at the right and certify
by signing and dating below. TIN:________________________
Internal Revenue Service Social Security
Payer's Request for Number or Employer
Identification NOTE: If the account is in more than one Identification Number
Number ("TIN") name, see the chart in the enclosed (If awaiting TIN,
Guidelines to determine which number to give write "Applied For")
the payer.
</TABLE>
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PART II--For payees exempt from backup withholding, please write TAXPAYER
"EXEMPT" here (see the enclosed Guidelines):
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PART III--Certification--UNDER PENALTIES OF PERJURY, I CERTIFY THAT:
(1) The number shown on this form is my correct TIN (or I am waiting for a
TIN to be issued to me), and
(2) I am not subject to backup withholding because (a) I am exempt from
withholding, or (b) I have not been notified by the Internal Revenue Service
("IRS") that I am subject to backup withholding as a result of a failure to
report all interest or dividends, or (c) the IRS has notified me that I am no
longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding
because of under reporting interest or dividends on your tax return and you
have not been notified by the IRS that you are no longer subject to backup
withholding. (Also see instructions in the enclosed Guidelines.)
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SIGNATURE ___________________________________ 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.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
ARE WAITING (OR SOON WILL APPLY FOR) A TAXPAYER IDENTIFICATION NUMBER
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office, or
(b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all reportable payments made to me will be withheld;
but that such amounts will be refunded to me if I then provide a Taxpayer
Identification Number within sixty (60) days.
_____________________________________________________________________________
SIGNATURE DATE
Name:______________________________________________________________________
(PLEASE PRINT)
Address:___________________________________________________________________
(INCLUDE ZIP CODE)
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