DEPOSITARY AGENT AGREEMENT
The Bank of New York
Reorganization Administration
000 Xxxxxxx Xxxxxx - 00X
Xxx Xxxx, XX 00000
Gentlemen:
EOC Acquisition Corporation, a New York corporation (the "Offeror"), a
wholly owned subsidiary of Precision Castparts Corp., an Oregon corporation
("PCC"), is offering to purchase all outstanding shares of common stock, par
value $0.10 per share (the "Shares") of Environment One Corporation, a New York
corporation (the "Company"), at $15.25 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase
dated March 3, 1998 and the related Letter of Transmittal, copies of which are
attached hereto as Exhibits A and B, respectively, and which together, as they
may be supplemented or amended from time to time, constitute the "Offer."
The Offeror hereby appoints The Bank of New York to act as Depositary in
connection with the Offer. References hereinafter to "you" shall refer to The
Bank of New York.
The Offer was commenced by the Offeror on March 3, 1998. The Letter of
Transmittal that accompanies the Offer to Purchase is to be used by the
shareholders of the Company to accept the Offer, and contains instructions with
respect to the delivery of certificates for Shares tendered.
The Offer shall expire at 12:00 Midnight, New York City time, on March 30,
1998 (the "Initial Expiration Date"), or on such subsequent date or time to
which the Offeror may extend the Offer. Subject to the terms of the Merger
Agreement (as defined in the Offer to Purchase), the Offeror expressly reserves
the right to extend the Offer from time to time and may extend the Offer by
giving notice to you before 9:00 a.m., New York City time, on the business day
following the scheduled Expiration Date. The later of the Initial Expiration
Date or the latest time and date to which the Offer may be so extended is
hereinafter referred to as the "Expiration Date."
In carrying out your duties as Depositary, you are to act in accordance
with the following instructions:
1. You will establish and maintain a book-entry account in respect of the
Shares at the Depository Trust Company ("DTC"), in connection with the Offer, in
accordance with Rule 17AD-14 under the Securities Exchange Act of 1934, as
amended. Any financial institution that is a participant in the DTC system may
make book-entry delivery of the Shares by causing DTC
to transfer such Shares into the account maintained by you, pursuant to this
paragraph, in accordance with DTC's procedure for such transfer, and you may
effect a withdrawal of Shares through such account by book-entry movement.
However, although delivery of Shares may be effected through book-entry
transfer at DTC, the Letter of Transmittal (or facsimile thereof) with any
required signature guarantees and any other documents must, in any case, be
received by you in order for Shares to be properly tendered. The account
shall be maintained until all Shares tendered pursuant to the Offer shall
have been either accepted for payment or returned.
2. You are to examine each of the Letters of Transmittal and certificates
for Shares and any other documents delivered or mailed to you by or for
shareholders of the Company to ascertain whether; (i) the Letters of Transmittal
and any such other documents are duly executed and properly completed in
accordance with instructions set forth therein and (ii) the Shares have
otherwise been properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the
certificates for Shares are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Offer exists, you will
endeavor to inform the presenters of the need for fulfillment of all
requirements and to take any other action as may be necessary or advisable to
cause such irregularity to be corrected.
3. With the approval of an authorized officer of the Offeror, Xxxxxxx X.
Xxxxxxx, or of Stoel Rives LLP, counsel to the Offeror (such approval, if given
orally, to be confirmed in writing), or any other party designated by such
officer, you are authorized to waive, any irregularities in connection with any
tender pursuant to the Offer.
4. Tenders of Shares may be made only as set forth in Section 3 of the
Offer to Purchase, and Shares shall be considered properly tendered to you only
when:
(a) certificates for Shares (whether physically delivered or
delivered pursuant to the procedure for book-entry transfer set forth in Section
3 of the Offer to Purchase, in which latter case confirmation of receipt of such
tendered Shares must be received by you) are covered by a properly completed and
duly executed Letter of Transmittal received by you (together with any other
required documents prior to the Expiration Date, or by an appropriate Notice of
Guaranteed Delivery from an Eligible Institution received by you in accordance
with Section 3 of the Offer to Purchase prior to the Expiration Date). For the
purposes of these instructions: an "Eligible Institution" shall be a financial
institution that is a member of the Securities Transfer Agents Medallion Program
("STAMP") the Stock Exchange Medallion Program ("SEMP") or the New York Stock
Exchange, Inc. Medallion Signature Program ("MSP") (each, an "Eligible
Institution"); and "an appropriate Notice of Guaranteed Delivery" shall be a
Notice of Guaranteed Delivery substantially in the form attached hereto as
Exhibit C, which is either delivered to you by hand or transmitted to you by
facsimile transmission and mail or otherwise;
(b) certificates for Shares (together with any other required
documents) are received by you, or you have received confirmation of receipt of
such Shares pursuant to the
book-entry transfer procedures set forth in the Offer to Purchase, prior to
the Expiration Date or, in the case of an appropriate Notice of Guaranteed
Delivery, along with a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof) and any other documents
required by the Letter of Transmittal, within three Nasdaq National Market
trading days after the date of such Notice of Guaranteed Delivery; and
(c) the adequacy of the items relating to certificates for Shares and
the related Letter of Transmittal has been favorably passed upon as above
provided.
Notwithstanding the provisions of this paragraph 4, Shares which the
Offeror or Stoel Rives LLP shall approve as having been properly tendered shall
be considered to be properly tendered.
A tender made on the basis of an appropriate Notice of Guaranteed Delivery
will not be considered to have been properly made unless stock certificates for
all of the Shares covered thereby be been deposited (either physically or
pursuant to book-entry transfer) within the time periods provided in this
paragraph 4 and Section 3 of the Offer to Purchase, and when all such stock
certificates have been so delivered and all other requirements in this paragraph
4 and the Offer to Purchase have been complied with, the tender will be deemed
effected at the time of receipt by you of the Letter of Transmittal or
appropriate Notice of Guaranteed Delivery, as the case may be, provided for in
such Section 3 and this paragraph 4.
5. You shall advise the Offeror with respect to any Shares received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Shares.
6. You shall accept tenders:
(a) in cases where the Shares are registered in two or more names
only if signed by all named holders.
(b) in cases where the signed person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his authority so to act is submitted.
(c) from persons other than the registered stockholder provided that
normal transfer requirements, including any applicable transfer taxes, are
fulfilled.
You shall accept partial tenders of Shares where so indicated in the Letter
of Transmittal and deliver certificates for Shares to the transfer agent for
split-up and return and untendered Shares to the holder as promptly as
practicable.
7. The Offeror will purchase Shares duly tendered on the terms and
subject to the conditions set forth in the Offer to Purchase and the Letter of
Transmittal. Payment for Shares
duly tendered and purchased pursuant to the Offer will be made by check on
behalf of the Offeror by you at the rate of $15.25 per Share (or such higher
price as is offered by the Offeror pursuant to the Offer) as soon as
practicable after notice (such notice, if given orally, to be confirmed in
writing) of acceptance of said Shares by the Offeror and the funds referred
to below are received by you; PROVIDED, HOWEVER, that in all cases, payment
for Shares tendered and purchased pursuant to the Offer will be made only
after timely receipt by you of certificates for such Shares (or timely
confirmation of a book-entry transfer of such Shares into your account at
DTC), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) and any other required documents.
Immediately available funds will be deposited with you on the day checks
are mailed or delivered by you. After such payment, you shall promptly present
certificates for said Shares, and any applicable transfer taxes (to be furnished
by the Offeror), together with your letter of indemnity and any other documents
reasonably requested by the Offeror including a certificate by you indicating
the number of Shares validly tendered, for transfer on the books of the Company,
all in accordance with written instructions from the Offeror and thereafter
deliver the newly-issued certificates for said shares to the Offeror.
8. Shares tendered pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may he withdrawn at any time prior to the
Expiration Date, and unless theretofore purchased by the Offeror, may also be
withdrawn at any time on or after May 1, 1998, if not accepted for purchase.
See the Offer to Purchase for further details.
9. The Offeror shall not be required to purchase any Shares tendered if
any of the conditions set forth in the Offer are not met. Notice of any
decision by the Offeror not to purchase or pay for any Shares tendered shall be
given (and confirmed in writing) by the Offeror to you.
10. If, pursuant to the Offer, the Offeror does not accept and pay for all
or part of the Shares tendered, you shall as soon as practicable return those
certificates for unpurchased Shares (or effect appropriate book-entry transfer),
together with any related required documents, and the Letters of Transmittal
relating thereto that are in your possession, to the persons who deposited them.
11. All certificates for unpurchased Shares and all checks or drafts for
purchased Shares shall be forwarded by (a) first-class mail under a blanket
surety bond protecting you and the Offeror from loss or liability arising out of
the non-receipt or non-delivery of such checks, drafts and certificates or
(b) by registered mail insured separately for the replacement value of each of
such checks, drafts and certificates.
12. You are not authorized to offer to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other persons or to engage or
utilize any person to solicit tenders.
13. As Depositary hereunder you:
(a) Shall have no duties or obligations other than those specifically
set forth herein or as may be subsequently agreed to between you
and the Offeror;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Shares represented
thereby deposited with you pursuant to the Offer, and will not be
required to and will make no representation as to the validity,
value or genuineness of the Offer;
(c) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificates, instrument, opinion, notice,
letter, telegram, or other document or security delivered to you
and reasonably believed by you to be genuine and to have been
signed by the proper party or parties;
(e) may act upon any tender, statement, request, comment, agreement
or other instrument whatsoever not only as to its due execution
and validity and effectiveness of its provisions, but also as to
the truth and accuracy of any information contained therein,
which you shall in good faith believe to be genuine or to have
been signed or represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from any Officer of the Offeror or any executive
officer of Precision Castparts Corp. set forth on Schedule 1 to
the Offer to Purchase.
(g) may consult with Stoel Rives LLP respect to any questions
relating to your duties and responsibilities and the opinion of
such counsel shall be full and complete authorization and
protection in respect to any action taken, suffered or omitted by
you hereunder in good faith and in accordance with the opinion of
such counsel; and
(h) shall not advise any person tendering Shares pursuant to the
Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Share,
14. You shall take such action as may from time to time be requested by
the Offeror or Stoel Rives LLP (and such other action as you may deem
appropriate) to furnish copies of the
Offer to Purchase, Letter of Transmittal and Notice of Guaranteed Delivery in
the forms attached hereto, or in such other forms as may be approved from
time to time by the Offeror or Stoel Rives LLP to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Offer. The Offeror will furnish you with copies of such
documents on your request.
15. You are authorized to cooperate with and to furnish information to any
organization (and its representatives) designated from time to time by the
Offeror or Stoel Rives LLP in any manner reasonably requested by it in
connection with the Offer and any tenders thereunder.
16. You shall advise by cable, telex, facsimile transmission or telephone,
and promptly thereafter confirm in writing to Xxxxxxx X. Xxxxxxx, Chief
Financial Officer of the Offeror, Xxxx X. Xxxxx and Xxxx X. Xxxxxx of Xxxxx
Xxxxx LLP (each at the address and telephone or other number set forth on
Schedule 1 hereto) and such other persons as any of them may request, daily (or
more frequently if requested) up to and including the Expiration Date, as to the
number of shares which have been tendered pursuant to the Offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received, items improperly received and
items covered by Notice of Guaranteed Delivery referred to in paragraph (b) of
paragraph 4 hereof. In addition, you will also inform, and cooperate in making
available to, the aforementioned persons upon oral request made from time to
time prior to the Expiration Date of such other information as they may
reasonably request. Such cooperation shall include, without limitation, the
granting by you to the Offeror, the persons listed in the preceding sentence,
and such person as Xxxx X. Xxxxx or Xxxx X. Xxxxxx of Xxxxx Xxxxx LLP or the
Offeror may request, of access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that immediately prior to
the Initial Expiration Date and each other Expiration Date, if any, the Offeror
shall have received information in sufficient detail to enable it to decide
whether to extend the Offer. You shall prepare a final list of all Persons
whose tenders were accepted the number of shares tendered, the amount accepted
and deliver said list to Xxxxxxx X. Xxxxxxx, Chief Financial Officer of the
Offeror, Xxxx X. Xxxxx and Xxxx X. Xxxxxx of Xxxxx Xxxxx LLP.
17. Letters of Transmittal and Notices of Guaranteed Delivery submitted in
lieu thereof pursuant to Section 3 of the Offer to Purchase shall be stamped by
you as to the date, and, after the expiration of the Offer, the time, of receipt
thereof and shall be preserved by you for a period of time at least equal to the
period of time you preserve other records pertaining to the transfer of
securities. You shall dispose of unused Letters of Transmittal and other
surplus materials by returning them to Xxxxxxx X. Xxxxxxx, of the Offeror.
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
purchase of Shares and the payment of stock transfer taxes by reason of amounts,
if any, borrowed by the Offeror, EOC Acquisition Corporation, or any of its
subsidiaries or affiliates pursuant to any loan or credit
agreement with you.
19. For services rendered as Depositary hereunder, you shall be entitled
to such compensation as set forth on Schedule 1 attached hereto.
20. You hereby acknowledge receipt of the Offer to Purchase and the Letter
of Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Offer to Purchase
and the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect of the duties, liabilities and indemnification of you as Depositary.
21. The Offeror covenants and agrees to indemnify and hold you harmless
against any loss, liability, cost or expense, including attorneys' fees,
(incurred without negligence, misconduct or bad faith on your part) arising out
of or in connection with any act, omission, delay or refusal made by you in
reasonable reliance upon any signature, endorsement, assignment, certificate,
order, request, notice, instruction or other instrument or document believed by
you to be valid, genuine and sufficient and in accepting any tender or effecting
any transfer of Shares believed by you in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or effect any transfer
of Shares. In no case shall the Offeror be liable under this indemnity with
respect to any claim against you unless the Offeror shall be notified by you, by
letter or cable or by telex confirmed by letter, of the written assertion of a
claim against you or of any other action commenced against you, promptly after
you shall have received any such written assertion or shall have been served
with a summons in connection therewith. The Offeror shall be entitled to
participate at its own expense in the defense of any such claim or other action
and, if the Offeror so elects, the Offeror shall assume the defense of any suit
brought to enforce any such claim. In the event that the Offeror shall assume
the defense of any such suit, the Offeror shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you, so long as the
Offeror shall retain counsel reasonably satisfactory to you to defend such suit.
22. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service (e.g., 1099, 1099B, etc.). The Offeror understands that you are required
to deduct 31% on payments to holders who have not supplied their correct
Taxpayer Identification Number or required certification. Such funds will be
turned over to the Internal Revenue Service.
23. You shall deliver or cause to be delivered in a timely manner to each
governmental authority to which any stock transfer taxes are payable in respect
of the transfer of purchased Shares to the Company your check in the amount of
all stock transfer taxes so payable, and the Company shall reimburse you for the
amount of any and all stock transfer taxes payable in respect of the transfer of
purchased Shares to the Company; PROVIDED, that you shall
reimburse the Company for amounts refunded to you in respect of your payment
of any such stock transfer taxes, at such time as such refund is received by
you.
24. This Agreement and your appointment as depository hereunder shall be
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of each of the parties hereto. This
Agreement may not be modified orally.
25. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but which together shall constitute one
and the same agreement.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
EOC ACQUISITION CORPORATION
By: /S/ XXXXXXX X. XXXXXXX
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
Accepted as of the date first above written.
THE BANK OF NEW YORK
By: /S/ XXXXXXX XXXXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
