EXHIBIT 99.3
TO BE EFFECTIVE, THIS FORM OF ELECTION AND LETTER OF TRANSMITTAL MUST BE
PROPERLY COMPLETED, SIGNED AND ACTUALLY RECEIVED BY THE EXCHANGE AGENT
(IDENTIFIED BELOW) NO LATER THAN 5:00 P.M., NEW YORK CITY TIME, ON THE BUSINESS
DAY THAT IS THREE TRADING DAYS PRIOR TO THE CLOSING DATE OF THE MERGER DESCRIBED
IN THE MERGER AGREEMENT (AS DEFINED HEREIN), TOGETHER WITH (1) THE
CERTIFICATE(S) REPRESENTING ALL COMMON SHARES OF XXXXXXX COMPUTER SERVICES, INC.
("XXXXXXX") TO WHICH THIS FORM OF ELECTION AND LETTER OF TRANSMITTAL RELATES OR
(2) A PROPERLY COMPLETED GUARANTEE OF DELIVERY WITH RESPECT TO THE
CERTIFICATE(S). DELIVERY OF XXXXXXX COMMON SHARES MAY ALSO BE MADE BY BOOK-ENTRY
TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT AT THE DEPOSITORY TRUST COMPANY
("DTC"). SEE INSTRUCTION 15.
FORM OF ELECTION
AND
LETTER OF TRANSMITTAL
TO ACCOMPANY CERTIFICATES REPRESENTING
COMMON SHARES, PAR VALUE $1.00 PER SHARE, OF
XXXXXXX COMPUTER SERVICES, INC.
Please read and follow the accompanying instructions carefully and deliver to:
COMPUTERSHARE TRUST COMPANY OF NEW YORK, THE EXCHANGE AGENT
by mail: by hand: by overnight courier:
Computershare Trust Computershare Trust Computershare Trust
Company of New York Company of New York Company of New York
Wall Street Station Wall Street Plaza Wall Street Plaza
P.O. Box 0000 00 Xxxx Xxxxxx, 00xx Xxxxx 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
FACSIMILE TRANSMISSION: (000) 000-0000 (Eligible Institutions Only)
FOR FURTHER INFORMATION: CALL THE INFORMATION AGENT, XXXXXX & CO., INC. TOLL
FREE AT
(000) 000-0000 (FOR STOCKHOLDERS) OR AT (000) 000-0000 (FOR BANKS AND BROKERAGE
FIRMS).
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DESCRIPTION OF XXXXXXX XXXXXX SHARES SURRENDERED
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NAME(S) OF RECORD HOLDER(S) AS SHOWN ON THE CERTIFICATE(S) AND CERTIFICATE(S) BEING SURRENDERED
ADDRESS(ES) OF SUCH RECORD HOLDER(S)* (ATTACH ADDITIONAL LIST IF NECESSARY)
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NUMBER OF SHARES REPRESENTED BY
CERTIFICATE EACH CERTIFICATE (OR COVERED BY A
NUMBER** GUARANTEE OF DELIVERY)
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
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TOTAL SHARES
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* For a delivery using the Guarantee of Delivery procedures, please fill in exactly as name(s) will appear
on the certificate(s) when delivered.
** Certificate numbers are not required if certificates will be delivered using the Guarantee of Delivery
procedures.
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Under the Agreement and Plan of Merger, dated as of January 16, 2003 (and
as amended and restated as of April 14, 2003) (the "
MERGER AGREEMENT"), among
Xxxxx Corporation Limited ("XXXXX"), Xxxxx Holdings U.S.A. Inc., M-W
Acquisition, Inc. ("M-W ACQUISITION") and Xxxxxxx, X-X Acquisition will merge
with and into Xxxxxxx and Xxxxxxx will thereby become a subsidiary of Xxxxx (the
"MERGER"). Pursuant to the
Merger Agreement, the undersigned hereby surrenders
to the Exchange Agent the certificate(s) representing the common stock, par
value $1.00 per share, of Xxxxxxx (the "XXXXXXX COMMON
SHARES") owned of record by the undersigned as set forth herein, and hereby
elects (the "ELECTION"), in the manner indicated below, to have the Xxxxxxx
common shares evidenced by such certificate(s) converted into the right to
receive, subject to proration, either:
- a number of common shares of Xxxxx equal to 1.05 plus the quotient of
14.40 divided by the average of the high and low sales prices per share
of Xxxxx on the New York Stock Exchange Composite Tape on the last
trading day before the closing of the Merger (the "STOCK ELECTION"); or
- cash in an amount equal to $14.40 plus the product of 1.05 multiplied by
the average of the high and low sales prices per share of Xxxxx on the
New York Stock Exchange Composite Tape on the last trading day before the
closing of the Merger (the "CASH ELECTION"; and, together with the Stock
Election, the "MERGER CONSIDERATION").
The undersigned may also indicate no preference as to the form of
consideration to be received in the Merger (a "NON-ELECTION"). If the
undersigned elects Non-Election or does not validly make an Election, his or her
Xxxxxxx common shares will be converted in whatever manner is necessary to
ensure that on average each Xxxxxxx stockholder receives $14.40 in cash and 1.05
Xxxxx common shares for each common share of Xxxxxxx.
IF THE UNDERSIGNED DOES NOT MARK ONE (AND ONLY ONE) OF THE ELECTION BOXES
BELOW, THE UNDERSIGNED WILL BE DEEMED TO HAVE INDICATED NON-ELECTION.
NON-ELECTION SHARES WILL BE CONVERTED IN WHATEVER MANNER IS NECESSARY TO ENSURE
THAT ON AVERAGE EACH XXXXXXX STOCKHOLDER RECEIVES $14.40 IN CASH AND 1.05 XXXXX
COMMON SHARES FOR EACH COMMON SHARE OF XXXXXXX.
The undersigned understands that the Election is subject to certain terms,
conditions and limitations set forth in the
Merger Agreement and described in
the proxy statement/prospectus, dated April 14, 2003 (the "PROXY
STATEMENT/PROSPECTUS"). A copy of the
Merger Agreement is attached to the Proxy
Statement/ Prospectus as Appendix A. These terms, conditions and limitations
include, but are not limited to, the fact that pursuant to the allocation
procedures described in the Proxy Statement/Prospectus and set forth in the
Merger Agreement, the Merger Consideration is capped so that on average each
Xxxxxxx stockholder will receive $14.40 in cash and 1.05 Xxxxx common shares for
each Xxxxxxx common share. Therefore, your Election may be adjusted on a pro
rata basis, and as a result you may receive part Xxxxx common shares and part
cash no matter which you elect. In any case, for each common share of Xxxxxxx
that you own you will receive value, as determined on the last trading day
before the closing of the Merger, equal to $14.40 in cash and 1.05 Xxxxx common
shares. All Elections are subject to the allocation procedures set forth in
Section 4.1 of the
Merger Agreement. The allocation procedures are described
under the caption "The
Merger Agreement -- Consideration to be Received in the
Merger" in the Proxy Statement/Prospectus. HOLDERS OF XXXXXXX COMMON SHARES ARE
URGED TO READ THE
MERGER AGREEMENT AND THE PROXY STATEMENT/PROSPECTUS IN THEIR
ENTIRETY BEFORE COMPLETING THIS FORM OF ELECTION AND LETTER OF TRANSMITTAL.
The undersigned understands that the definitive terms pursuant to which the
Merger will be effected in accordance with the
Merger Agreement, including the
amount and form of consideration to be received by holders of Xxxxxxx common
shares, the effect of this Form of Election and Letter of Transmittal and
certain conditions to the consummation of the Merger, are summarized in the
Proxy Statement/Prospectus, and all of those definitive terms and conditions are
set forth in full in the Merger Agreement. The undersigned also understands that
different tax consequences may be associated with each of the Election options,
and the undersigned is aware that those consequences are summarized in general
terms in the Proxy Statement/ Prospectus section entitled "Taxation."
The undersigned hereby makes the following Election for the undersigned's
Xxxxxxx common shares owned of record and surrendered herewith:
2
ELECTION
Check one (and only one) of the boxes below:
[ ] STOCK ELECTION
[ ] CASH ELECTION
[ ] NON-ELECTION
The undersigned may be deemed to have made a Non-Election if, with respect to
any Xxxxxxx common shares held thereby:
(a) None of the above Elections is made; or
(b) More than one of the above Elections is made; or
(c) The undersigned fails to follow the instructions on this Form of
Election and Letter of Transmittal (including failure to submit share
certificate(s), confirmation of a book-entry transfer of the shares into
the Exchange Agent's account at DTC or a Guarantee of Delivery) or
otherwise fails to properly make an Election; or
(d) A completed Form of Election and Letter of Transmittal (including
submission of the holder's share certificate(s), confirmation of a
book-entry transfer of the shares at DTC or a Guarantee of Delivery) is not
received by the Exchange Agent by 5:00 p.m., New York City time, on the
business day that is three trading days prior to the closing date of the
Merger described in the Merger Agreement (which date will be publicly
announced by Xxxxx as soon as practicable) (the "ELECTION DEADLINE"); or
(e) The undersigned returns this Form of Election and Letter of
Transmittal with a Guarantee of Delivery, but does not deliver the share
certificate(s) representing the shares for which the Election is being
made, or such shares are not the subject of a confirmation of a book-entry
transfer of the shares into the Exchange Agent's account at DTC, within
three New York Stock Exchange trading days after the Election Deadline.
In order to receive the Merger Consideration, (i) this Form of Election and
Letter of Transmittal must be completed and signed in the space in the box on
page 5 labeled "Stockholder(s) Sign Here", (ii) the undersigned must complete
and sign the Substitute Form W-9 and (iii) this Form of Election and Letter of
Transmittal along with the Substitute Form W-9 must be mailed or delivered with
the holder's share certificate(s) or a Guarantee of Delivery to the Exchange
Agent, to either of the addresses (or the facsimile number solely with respect
to a Guarantee of Delivery) set forth above. Delivery of Xxxxxxx common shares
may also be made by book-entry transfer of the shares to the Exchange Agent's
account at DTC. In order to properly make an Election, the Form of Election and
Letter of Transmittal and other required documents must be received by the
Exchange Agent prior to the Election Deadline. If this Form of Election and
Letter of Transmittal is not completed and received by the Exchange Agent
pursuant to the instructions herein prior to the Election Deadline, the
undersigned will be deemed to have made a Non-Election.
The undersigned hereby acknowledges receipt of the Proxy
Statement/Prospectus and agrees that all Elections, instructions and orders in
this Form of Election and Letter of Transmittal are subject to the terms and
conditions of the Merger Agreement, the Proxy Statement/Prospectus and the
instructions applicable to this Form of Election and Letter of Transmittal. The
undersigned hereby represents and warrants that the undersigned is, as of the
date hereof, and will be, as of the effective time of the Merger, the record
holder of the Xxxxxxx common shares represented by the share certificate(s)
surrendered herewith, with good title to those common shares and full power and
authority (i) to sell, assign and transfer those common shares free and clear of
all liens, restrictions, charges and encumbrances and not subject to any adverse
claims and (ii) to make the Election indicated herein. The undersigned will,
upon request, execute any additional documents necessary or desirable to
complete the surrender and exchange of those common shares.
The undersigned hereby irrevocably appoints the Exchange Agent, as agent of
the undersigned, to effect the exchange pursuant to the Merger Agreement and the
instructions hereto. The undersigned hereby
3
authorizes and instructs the Exchange Agent to deliver the certificate(s)
covered hereby, and to receive on the undersigned's behalf, in exchange for the
Xxxxxxx common shares represented by that certificate(s), any check and/or any
certificate(s) for Xxxxx common shares issuable to the undersigned. Furthermore,
the undersigned authorizes the Exchange Agent and Xxxxx to follow any Election
and to rely upon all representations, certifications and instructions contained
in this Form of Election and Letter of Transmittal. All authority conferred or
agreed to be conferred in this Form of Election and Letter of Transmittal is
binding upon the successors, assigns, heirs, executors, administrators and legal
representatives of the undersigned and is not affected by, and survives, the
death or incapacity of the undersigned.
Record holders of Xxxxxxx xxxxxx shares who are nominees only may submit a
separate Form of Election and Letter of Transmittal for each beneficial holder
for whom that record holder is a nominee; provided, however, such record holder
must certify to the satisfaction of Xxxxx that the record holder holds those
shares as nominee for the beneficial owner(s) thereof. Each beneficial owner for
whom a Form of Election and Letter of Transmittal is submitted will be treated
as a separate holder of Xxxxxxx common shares, subject to the provisions
concerning joint elections.
COMPLETING AND RETURNING THIS FORM OF ELECTION AND LETTER OF TRANSMITTAL
DOES NOT HAVE THE EFFECT OF CASTING A VOTE WITH RESPECT TO ADOPTION OF THE
MERGER AGREEMENT AND APPROVAL OF THE RELATED TRANSACTIONS AT THE SPECIAL MEETING
OF STOCKHOLDERS OF XXXXXXX. IN ORDER TO VOTE ON THE MERGER AGREEMENT, SIGN, DATE
AND MAIL THE PROXY CARD SENT TO YOU ALONG WITH THE PROXY STATEMENT/PROSPECTUS OR
VOTE YOUR SHARES ONLINE OR BY TELEPHONE ACCORDING TO THE INSTRUCTIONS ON THE
PROXY CARD.
4
GUARANTEE OF DELIVERY
(TO BE USED ONLY AS TO CERTIFICATES NOT TRANSMITTED HEREWITH)
(SEE INSTRUCTION 15)
The undersigned (check applicable box)
[ ] a member of a registered national securities exchange,
[ ] a member of the National Association of Securities Dealers, Inc., or,
[ ] a commercial bank or trust company in the United States,
guarantees to deliver to the Exchange Agent either all of the certificate(s) for
the Xxxxxxx common shares to which this Form of Election and Letter of
Transmittal relates, or such of those certificates as are identified below, duly
endorsed in blank or otherwise in form acceptable for transfer on the books of
Xxxxxxx, no later than 5:00 p.m., New York City time, on the third NYSE trading
day after the Election Deadline.
SHARES REPRESENTED BY
CERTIFICATE NO. EACH CERTIFICATE
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
[ ] Check here if Xxxxxxx common shares will be delivered to be via book-entry
transfer to the Exchange Agent's account at DTC.
(Firm -- Please Print)
----------------------------------
(Authorized Signature)
---------------------------------
(Address)
--------------------------------------------
(Daytime Area Code and Telephone Number)
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(Dated) ---------------------- , 2003
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 4 & 6)
To be completed ONLY if the check is to be made payable to, and/or the
certificate(s) for Xxxxx common shares is to be issued in the name of, someone
other than the record holder(s) of the Xxxxxxx common shares or the name of the
record holder(s) needs to be corrected or changed.
Issue: [ ] Certificate [ ] Check to:
Name
------------------------------------------------
(PLEASE PRINT)
Address:
----------------------------------------------
----------------------------------------------
(INCLUDE ZIP CODE)
(TAX IDENTIFICATION NUMBER
OR SOCIAL SECURITY NUMBER)
-----------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4 & 6)
To be completed ONLY if the check is to be made payable to, and/or the
certificate(s) for Xxxxx common shares are to be issued in the name of, the
record holder(s) of the Xxxxxxx common shares but are to be sent to another
person or to an address other than as set forth beneath the record holder's
signature on this Form of Election and Letter of Transmittal.
CHECK OR CERTIFICATE(S) FOR XXXXX COMMON SHARES DELIVERED TO:*
Name
------------------------------------------------
(PLEASE PRINT)
Address:
----------------------------------------------
----------------------------------------------
(INCLUDE ZIP CODE)
* PLEASE ATTACH ADDITIONAL SHEETS IF NECESSARY.
STOCKHOLDER(S) SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
Please sign exactly as your name(s) appear(s) on your certificate(s). If this is
a joint election, each person covered by this Form of Election and Letter of
Transmittal must sign personally.
A check or certificate(s) for Xxxxx common shares will be issued only in the
name of the person(s) submitting this Form of Election and Letter of Transmittal
and will be mailed to the address set forth beneath the person's signature
unless the Special Delivery or Special Issuance Instructions are completed.
------------------------------------------------------
------------------------------------------------------
(Signature(s) of owner(s) -- see Instruction 5)
Dated:
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Social Security or other Tax Identification Number
If signature is by a person(s) other than the record holder(s) and in the
capacity of trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or any other person(s) acting in a fiduciary or
representative capacity, please provide the following information. See
Instruction 5.
Name
------------------------------------------------
(PLEASE PRINT)
Capacity:
---------------------------------------------
Address:
----------------------------------------------
(INCLUDE ZIP CODE)
Daytime Telephone Number:
----------------------------
SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 4 OR 6)
APPLY SIGNATURE GUARANTEE MEDALLION BELOW
The undersigned hereby guarantees the signature(s) which appear(s) on this Form
of Election.
Dated: ---------------------- , 2003
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NAME OF ELIGIBLE INSTITUTION ISSUING GUARANTEE
NOTE: in the event that the check and/or certificate(s) representing Xxxxx
common shares is to be issued in exactly the name of the record holder as
inscribed on the surrendered Xxxxxxx share certificate(s), the
surrendered share certificate(s) need not be endorsed and no guarantee of
the signature on this Form of Election and Letter of Transmittal is
required.
5
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PAYER'S NAME: COMPUTERSHARE TRUST COMPANY OF NEW YORK
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SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT ---------------------------
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Social Security Number
(if awaiting TIN write
"Applied For")
OR ------------------------
Employer Identification Number
(if awaiting TIN write
"Applied For")
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DEPARTMENT OF THE PART 2 -- CERTIFICATE -- Under the penalties of perjury, I certify that: (1) The
TREASURY, INTERNAL number shown on this form is my correct TIN (or I am waiting for a number to be
REVENUE SERVICE issued to me), (2) I am not subject to backup withholding because (a) I am exempt
from backup withholding, or (b) I have not been notified by the Internal Revenue
Service (the "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, and (3) I am a U.S. person (including a U.S.
resident alien).
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PAYOR'S REQUEST FOR CERTIFICATE INSTRUCTIONS -- You must cross out item (2) above if you have been
TAXPAYER IDENTIFICATION notified by the IRS that you are subject to backup withholding because of
NUMBER ("TIN") underreporting interest or dividends on your tax return. However, if after being
notified by the IRS that you were subject to backup withholding, you received
another notification from the IRS that you were no longer subject to backup
withholding, do not cross out item (2). (Also see instructions in the enclosed
Guidelines.)
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SIGNATURE ----------------------------------------------- DATE----------------- ,
2003
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 30% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE MERGER. 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 AWAITING (OR WILL
SOON 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 (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number, backup withholding of all
reportable payments made to me thereafter will be withheld until I provide a
taxpayer identification number and, if I do not provide a taxpayer
identification number within 60 days, such amounts will be paid over to the
Internal Revenue Service.
SIGNATURE:
---------------------------------------------------------------- DATE:
-----------------------------
6
INSTRUCTIONS
This Form of Election and Letter of Transmittal is to be completed and
submitted to the Exchange Agent prior to the Election Deadline by those holders
of Xxxxxxx common shares desiring to make an Election. It also may be used,
following consummation of the Merger, as a letter of transmittal to accompany
the surrender of Xxxxxxx common shares to be exchanged for the Merger
Consideration for holders of Xxxxxxx common shares who do not complete and
submit the Form of Election and Letter of Transmittal prior to the Election
Deadline, although any such Xxxxxxx common shares so surrendered will be treated
as Non-Election shares for all purposes of the Merger Agreement. Holders of
Xxxxxxx common shares who do not complete and submit this Form of Election and
Letter of Transmittal prior to the Election Deadline cannot make an Election.
They will be deemed to have made a Non-Election. Non-Election shares will be
converted in whatever manner is necessary to ensure that on average each Xxxxxxx
stockholder receives $14.40 in cash and 1.05 Xxxxx common shares for each common
share of Xxxxxxx. Until a record holder's share certificate(s) or confirmation
of a book-entry transfer of the shares into the Exchange Agent's account at DTC
is received by the Exchange Agent at either of the addresses (or the facsimile
number solely with respect to a Guarantee of Delivery) set forth on the front of
this Form of Election and Letter of Transmittal, together with any other
documents the Exchange Agent may require, and until the same are processed for
exchange by the Exchange Agent, the holder will not receive the Merger
Consideration or check representing cash in lieu of fractional shares (if any)
in exchange for the holder's share certificate(s). No interest will accrue on
the Merger Consideration or any cash in lieu of fractional shares. Holders of
Xxxxxxx common shares receiving stock consideration will be entitled to any
dividends or other distributions with respect to Xxxxx common shares which have
a record date and are paid after the effective time of the Merger.
1. Time in Which to Make an Election. For an Election to be validly made
with respect to Xxxxxxx common shares owned by a holder, the Exchange Agent must
receive, at either of the addresses set forth on the front of this Form of
Election and Letter of Transmittal, prior to the Election Deadline, this Form of
Election and Letter of Transmittal, properly completed and executed, and
accompanied by the certificates representing such Xxxxxxx common shares,
confirmation of a book-entry transfer of the shares at DTC contained in an
Agent's Message (as defined below) or by a Guarantee of Delivery. Any
stockholder whose form of Election and Letter of Transmittal and certificates
(or confirmation of a book-entry transfer of the shares at the Exchange Agent's
account at DTC or Guarantee of Delivery) are not so received will be deemed to
have made a Non-Election. In the event Xxxxxxx common shares covered by a
Guarantee of Delivery are not received (or are not the subject of a confirmation
of a book-entry transfer of the shares at the Exchange Agent's account at DTC
contained in an Agent's Message) within three New York Stock Exchange trading
days after the Election Deadline, the holder thereof will be deemed to have made
a Non-Election. As used herein, the term "Agent's Message" means a message
transmitted by DTC, received by the Exchange Agent and forming a part of a
book-entry confirmation, which states that DTC has received an express
acknowledgement from the DTC participant delivering the Xxxxxxx common shares,
that such participant has received and agreed to be bound by this Form of
Election and Letter of Transmittal and that Xxxxx may enforce such agreement
against the participant.
2. Change or Revocation of Election. Any holder of Xxxxxxx common shares
who has made an Election by submitting a Form of Election and Letter of
Transmittal to the Exchange Agent may at any time prior to the Election Deadline
change that holder's Election by submitting to the Exchange Agent a revised Form
of Election and Letter of Transmittal, properly completed and signed, that is
received by the Exchange Agent prior to the Election Deadline. Any holder of
Xxxxxxx common shares may at any time prior to the Election Deadline revoke the
Election and withdraw the certificate(s) for the xxxxxx'x Xxxxxxx common shares
deposited with the Exchange Agent by written notice to the Exchange Agent
received prior to the Election Deadline. After the Election Deadline, a holder
of Xxxxxxx common shares may not change the Election and may not withdraw his or
her certificate(s) unless the Merger Agreement is terminated in accordance with
its terms.
3. Nominees. Record holders of Xxxxxxx xxxxxx shares who are nominees
only may submit a separate Form of Election and Letter of Transmittal for each
beneficial owner for whom the record holder is a nominee; provided, however,
such record holder must certify to Xxxxx'x satisfaction that the record holder
7
holds those Xxxxxxx xxxxxx shares as nominee for the beneficial owner(s)
thereof. Each beneficial owner for which a Form of Election and Letter of
Transmittal is submitted will be treated as a separate holder of Xxxxxxx common
shares.
4. Guarantee of Signatures. No signature guarantee is required on this
Form of Election and Letter of Transmittal if this Form of Election and Letter
of Transmittal is signed by the record holder(s) of the Xxxxxxx common shares
tendered herewith, and the certificate(s) representing Xxxxx common shares
and/or the check, if applicable, are to be issued to that record holder(s)
without any correction or change in the name of the record holder(s). IN ALL
OTHER CASES, ALL SIGNATURES ON THIS FORM OF ELECTION AND LETTER OF TRANSMITTAL
MUST BE GUARANTEED. All signatures required to be guaranteed in accordance with
these instructions must be guaranteed by a bank, broker or other institution
that is a member of a Medallion Signature Guaranty Program. Public notaries
cannot execute acceptable guarantees of signatures.
5. Signatures on Form of Election and Letter of Transmittal, Stock Powers
and Endorsements.
(a) If this Form of Election and Letter of Transmittal is signed by
the record holder(s) of the certificate(s) tendered hereby without any
alteration, variation, correction or change in the name of the record
holder(s), the signature(s) must correspond exactly with the name(s) as
written on the face of the certificate(s) without any change whatsoever. In
the event the name of the record holder(s) needs to be corrected or has
changed (by marriage or otherwise), see Instruction 6.
(b) If any Xxxxxxx common shares tendered hereby are held of record by
two or more joint holders, each of the joint holders must sign this Form of
Election and Letter of Transmittal.
(c) If this Form of Election and Letter of Transmittal is signed by
the record holder(s) of the share certificate(s) listed and transmitted
hereby, no endorsements of the certificate(s) or separate stock powers are
required.
(d) If any surrendered Xxxxxxx common shares are registered in
different names on several share certificates, it will be necessary to
complete, sign and submit as many separate Forms of Election and Letters of
Transmittal as there are different registrations of share certificates.
(e) If this Form of Election and Letter of Transmittal is signed by a
person(s) other than the record holder(s) of the certificate(s) listed, the
certificate(s) must be endorsed or accompanied by appropriate stock powers,
in either case signed exactly as the name of the record holder(s) appears
on the certificate(s). Signatures on the certificate or stock powers must
be guaranteed. See Instruction 4.
(f) If this Form of Election and Letter of Transmittal or any share
certificate(s) or stock power(s) is signed by a person(s) other than the
record holder(s) of the share certificate(s) listed and the signer(s) is
acting in the capacity of trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or any other person(s) acting in
a fiduciary or representative capacity, that person(s) must so indicate
when signing and must submit proper evidence satisfactory to the Exchange
Agent of authority to so act.
6. Special Issuance and Delivery Instructions. Unless instructions to the
contrary are given in the box entitled "Special Issuance Instructions" or the
box entitled "Special Delivery Instructions," the certificate(s) representing
Xxxxx common shares and/or the check to be distributed upon the surrender of
Xxxxxxx common shares pursuant to this Form of Election and Letter of
Transmittal will be issued in the name and mailed to the address of the record
holder(s) set forth in the box entitled "Description of Xxxxxxx Common Shares
Surrendered." If the certificate(s) and/or check are to be issued in the name of
a person(s) other than the record holder(s) or if the name of the record
holder(s) needs to be corrected or changed (by marriage or otherwise), the box
entitled "Special Issuance Instructions" must be completed. If the
certificate(s) and/or check are to be sent to a person(s) other than the record
holder(s) or to the record holder(s) at an address other than that shown in the
box entitled "Description of Xxxxxxx Common Shares Surrendered," the box
entitled "Special Delivery Instructions" must be completed. If the box entitled
"Special Issuance Instructions" is completed, or the box entitled "Special
Delivery Instructions" is completed other than for the sole
8
purpose of changing the address of the record holder(s), the signature(s) of the
person(s) signing this Form of Election and Letter of Transmittal must be
guaranteed. See Instruction 4.
7. Important Information Regarding Backup Withholding. Under U.S. federal
income tax law, the holder of Xxxxxxx common shares must report and certify his
or her social security or other taxpayer identification number and further
certify that the holder is not subject to backup withholding due to notified
underreporting and is a U.S. person (including a U.S. resident alien). Failure
to complete the Substitute Form W-9 above could result in certain penalties as
well as backup withholding of payments due to the holder. See the accompanying
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional instructions. If you are a foreign person, you must
provide a properly completed and executed Internal Revenue Service Form W-8BEN,
which you can obtain from the Exchange Agent.
8. Inadequate Space. If there is inadequate space to complete any box or
to sign this Form of Election and Letter of Transmittal, the information or
signatures required to be provided must be set forth on additional sheets
substantially in the form of the corresponding portion of this Form of Election
and Letter of Transmittal and attached to this Form of Election and Letter of
Transmittal.
9. Indication of Certificate Numbers and Shares. This Form of Election
and Letter of Transmittal should indicate the certificate number(s) of the
certificate(s) representing the Xxxxxxx common shares covered hereby and the
number of shares represented by each certificate.
10. Method of Delivery. The method of delivery of all documents is at the
option and risk of the holder of Xxxxxxx common shares. If delivery is by mail,
the use of registered mail, with return receipt requested, properly insured, is
strongly recommended. A return envelope is enclosed. It is suggested that this
Form of Election and Letter of Transmittal be hand delivered or mailed to the
Exchange Agent as soon as possible. Delivery of the documents will be deemed
effective, and risk of loss and title with respect thereto will pass, only when
materials are actually received by the Exchange Agent.
11. Payment Will be Made by a Single Check or Certificate. Normally, a
single check and/or a single certificate representing Xxxxx common shares will
be issued; however, if for tax purposes or otherwise a holder wishes to have the
certificates issued in particular denominations, explicit written instructions
to the Exchange Agent should be provided. Holders participating in a joint
election will receive a single check or share certificate for the holders'
Xxxxxxx common shares.
12. Lost Certificates. If any certificate representing Xxxxxxx common
shares has been lost, stolen or destroyed, the holder thereof should notify the
Exchange Agent and await instructions as to how to proceed.
13. Non-Consummation of Merger. Consummation of the Merger is subject to
the required approval of the stockholders of Xxxxxxx, to the receipt of all
required regulatory approvals and to the satisfaction of certain other
conditions. No payments related to any surrender of the certificate(s) will be
made prior to the consummation of the Merger, and no payments will be made to
stockholders if the Merger Agreement is terminated. If the Merger Agreement is
terminated, all Elections will be void and of no effect and certificates
submitted to the Exchange Agent will be returned as soon as practicable to the
persons submitting them.
14. Voting Rights and Dividends. Holders of Xxxxxxx common shares will
continue to have the right to vote and to receive all dividends paid on all
Xxxxxxx common shares deposited by them with the Exchange Agent until the Merger
becomes effective.
15. Guarantee of Delivery. Holders of Xxxxxxx common shares whose
certificates are not immediately available or who cannot deliver their
certificates and all other required documents to the Exchange Agent or cannot
complete the procedure for delivery of Xxxxxxx common shares by book-entry
transfer into the Exchange Agent's account at DTC prior to the Election
Deadline, may deliver their Xxxxxxx common shares by properly completing and
duly executing a Guarantee of Delivery if (1) the Guarantee of Delivery is made
by or through a member of a registered national securities exchange, a member of
the National Association of Securities Dealers, Inc. or by a commercial bank or
trust company in the United States; (2) prior to the Election Deadline, the
Exchange Agent receives a properly completed and duly executed Guarantee of
Delivery, as provided herein, together with a properly completed and duly
executed Form of Election and
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Letter of Transmittal and any other documents required by the Form of Election
and Letter of Transmittal; and (3) the certificates for all the Xxxxxxx common
shares covered by the Guarantee of Delivery, in proper form for transfer (or
confirmation of a book-entry transfer of such Xxxxxxx common shares into the
Exchange Agent's account at DTC), are received by the Exchange Agent within
three NYSE trading days after the Election Deadline. If the above requirements
are not satisfied in a timely manner, the holder will be deemed to have made a
Non-Election.
16. Construction. All Elections will be considered in accordance with the
terms and conditions of the Merger Agreement.
All questions with respect to the Form of Election and Letter of
Transmittal (including, without limitation, questions relating to the
timeliness, effectiveness or revocation of any Election) will be resolved by
Xxxxx in its sole discretion and such resolution will be final and binding.
With the consent of Xxxxx, the Exchange Agent may (but is not required to)
waive any immaterial defects or variances in the manner in which the Form of
Election and Letter of Transmittal has been completed and submitted so long as
the intent of the holder of Xxxxxxx common shares submitting the Form of
Election and Letter of Transmittal is reasonably clear. Neither the Exchange
Agent nor Xxxxx is under any obligation to provide notification of any defects
in the deposit and surrender of any certificate(s) formerly representing Xxxxxxx
common shares, nor shall the Exchange Agent or Xxxxx be liable for any failure
to give any such notification.
17. Miscellaneous. No fraction of a share of Xxxxx common shares will be
issued upon the surrender for exchange of a certificate(s) for Xxxxxxx common
shares. In lieu of fractional shares, an amount of cash determined under a
formula set forth in the Merger Agreement will be paid by check.
COMPLETING AND RETURNING THIS FORM OF ELECTION AND LETTER OF TRANSMITTAL
DOES NOT HAVE THE EFFECT OF CASTING A VOTE WITH RESPECT TO ADOPTION OF THE
MERGER AGREEMENT AT THE SPECIAL MEETING OF STOCKHOLDERS OF XXXXXXX. TO VOTE ON
THE MERGER, PLEASE CONSULT THE PROXY STATEMENT/PROSPECTUS AND RELATED PROXY
CARD.
18. Questions and Requests for Information. Questions and requests for
information or assistance relating to this Form of Election and Letter of
Transmittal should be directed to Xxxxxx & Co., Inc., as Information Agent, at
(000) 000-0000 (for stockholders) or at (000) 000-0000 (for banks and brokerage
firms). Additional copies of the Proxy Statement/Prospectus and this Form of
Election and Letter of Transmittal may be obtained from Xxxxxx & Co., Inc. by
calling them at the telephone number set forth in the preceding sentence.
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