DEPOSITARY AGREEMENT
July 8, 1997
American Securities Transfer & Trust, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx
Dear Sirs:
Caprito Gas Corporation (the "Offeror") is inviting the shareholders of Great
Eastern Energy and Development Corporation ("Great Eastern") to tender all of
the outstanding shares of Great Eastern common stock, par value $.10 per share
(the "Shares"), at $0.22 per Share, net to the seller in cash, upon the terms
and conditions set forth in the Offer to Purchase and the Letter of Transmittal
annexed hereto as Exhibits A and B, respectively (collectively the "Offer").
The Offeror hereby appoints American Securities Transfer & Trust, Inc. ("you" or
the "Depositary") to act as Depositary in connection with the Offer. For
services rendered as Depositary hereunder, you shall be entitled to the
compensation set forth on Schedule I attached hereto.
The Offer is being made by the Offeror to all holders of Shares on or about July
11, 1997. The Letter of Transmittal that will accompany the Offer to Purchase is
to be used by the stockholders of the Offeror to accept the Offer, and contains
instructions with respect to the delivery of certificates for Shares tendered.
In carrying out your duties as Depositary, you agree to act in accordance with
the following:
1. The Offer shall expire at 5:00 p.m., Midland, Texas time on August 11,
1997 (the "Initial Expiration Date"), or at any subsequent time to
which the Offeror may extend the Offer. The Offeror expressly reserves
the right to extend the Offer from time to time. The Offer may be
extended by the Offeror giving oral or written notice to you before
9:00 a.m. Midland, Texas time, on the business day following the
Initial Expiration Date or any subsequent 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 herein referred to as the
"Expiration Date."
2. You will immediately establish an account with the various Book-Entry
Transfer Facilities for purposes of the Offer and any financial
institution that is a participant in any of the systems of the
Book-Entry Transfer Facilities may make book-entry delivery of the
Shares by causing the Book-Entry Transfer Facilities to transfer such
Shares into the account maintained by you pursuant to this paragraph
in accordance with procedures for such transfer. However, although
delivery of Shares may be effected through book-entry transfer, the
Letter of Transmittal (or facsimile thereof) with any required
signature
American Securities Transfer & Trust, Inc.
July 8, 1997
Page 2
guarantees and any other documents must, in any case, be received by
you in order for Shares to be properly tendered.
3. You are to examine the Notices of Guaranteed Delivery, Letters of
Transmittal, certificates for Shares ("Share Certificates") and other
documents delivered or mailed to you to ascertain whether the Letters
of Transmittal or other documents are filled out and executed in
accordance with instructions set forth therein. In each case where the
Letter of Transmittal or other document has been improperly filled out
or executed or, for any other reason, is not in proper form, or some
other irregularity in connection with the acceptance of the Offer
exists, you will notify the Offeror of such matter and endeavor to
take such action as may be necessary to cause such irregularity to be
corrected to the satisfaction of the Offeror.
With the written approval of an Officer of the Offeror, or any party
designated by the Offeror, you are authorized to waive irregularities
in connection with the acceptance of the Offer.
4. If a stockholder desires to tender shares pursuant to the Offer and
such stockholder's Share Certificates are not immediately available or
time will not permit all required documents to reach you on or prior
to the Expiration Date, or the procedure for book-entry transfer
cannot be completed on a timely basis, such Shares may nevertheless be
deemed to be tendered if all the following guaranteed delivery
procedures are fully complied with:
(i) such tender is made by or through an Eligible Institution
(as defined in the Offer);
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the
Depositary, is received by you as provided below, on or prior
to the Expiration Date; and
(iii) The Share Certificates or a Book-Entry Confirmation (as
defined in the Offer) representing all tendered Shares, in
proper form for transfer together with a properly completed
and duly executed Letter of Transmittal (or facsimile
thereof), with any required signature guarantees (or, in the
case of a book-entry transfer of Shares, an Agent's message
(as defined in the Offer)) and any other documents required by
the Letter of Transmittal are received by you within three
business days after the date of execution of the Notice of
Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or mail or
transmitted by facsimile transmission to you and must include a
guarantee by an Eligible Institution in the form set forth in such
Notice of Guaranteed Delivery.
American Securities Transfer & Trust, Inc.
July 8, 1997
Page 3
Notwithstanding any other provisions hereof, payment for Shares
accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by you of Share Certificates for, or of
Book-Entry Confirmations with respect to, such Shares, a properly
completed and duly executed Letter of Transmittal (or facsimile
thereof), together with any required signature guarantees (or, in the
case of book-entry transfer of Shares, an Agent's message) and any
other documents required by the Letter of Transmittal. Accordingly,
payment might not be made to all tendering stockholders at the same
time, and will depend upon when Share Certificates are received by you
or Book-Entry Confirmations of such Shares are received into your
account at the Book-Entry Facility.
5. The Offeror will purchase Shares duly tendered on the terms and subject
to the conditions set forth in the Offer. Payment for Shares duly
tendered and purchased pursuant to the Offer will be made by check on
behalf of the Offeror by you as soon as practicable after notice of
acceptance of said Shares by the Offeror is received by you. Federal
Funds will be deposited with you on or before the day checks are mailed
or delivered by you. The Offeror will wire funds to: Union Bank and
Trust, ABA# 000000000 for the account of American Securities Transfer &
Trust, Inc. Cash Funding Account #___________.
6. Shares tendered pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may be withdrawn at any time
prior to the Expiration Date and, unless theretofore purchased by the
Offeror, may also be withdrawn at any time after September 9, 1997, if
not accepted for purchase. See the Offer to Purchase for further
details.
7. 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.
8. If, pursuant to the Offer, the Offeror does not accept for purchase all
or part of the Shares tendered, you shall promptly return the deposited
certificates for Shares, with any related required documents and the
Letter of Transmittal relating thereto that are in your possession, to
the persons who deposited same, together with a notice explaining the
reasons for their return.
9. Certificates for unpurchased 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 certificates for Shares, or (b) by registered mail insured
separately for the replacement value of such certificates for Shares.
American Securities Transfer & Trust, Inc.
July 8, 1997
Page 4
10. As Depositary hereunder, you:
a. shall have no duties or obligations other than those
specifically set forth herein or in Exhibits A or B;
b. will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any stock certificates or the Shares
represented thereby deposited with you hereunder, and will not
be required to and will make no representation as the
validity, value of 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 such
indemnity as shall be reasonably satisfactory to you;
d. may rely on and shall be protected in acting in reliance upon
any certificate, instrument, opinion, notice, letter, telegram
or other document or security delivered to you and believed by
you to be genuine and to have been signed by the proper party
or parties;
e. may rely on and shall be protected in acting upon written
instructions from Xxxxx X. Xxxxxx, who is an officer of the
Offeror;
f. may consult counsel satisfactory to you (including counsel for
the Offeror) 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
g. shall not be called upon at any time to advise any person
tendering hereunder as to the wisdom of making such tender or
as to the market value or decline or appreciation in market
value of any Share.
11. At 5:00 p.m. Midland, Texas time, or as promptly as practicable
thereafter, daily or more frequently if requested as to major tally
figures, you shall advise the party named below by telephone or by
facsimile transmission as to (i) the number of Shares duly tendered;
(ii) the number of Shares defectively tendered and the nature of the
defects; (iii) the number of Shares duly tendered represented by
certificates physically held by you; (iv) the number of Shares
represented by Notice of Guaranteed Delivery; (v) the number of Shares
withdrawn on such day; and (vi) the cumulative totals of Shares in
categories (i) through (v) above through 12:00 noon on such day;
American Securities Transfer & Trust, Inc.
July 8, 1997
Page 5
(a) Xxxxx X. Xxxxxx
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
You shall also furnish to the above persons a written report by
facsimile transmission confirming any of the above information which
has been communicated orally by telephone on the day following any such
oral communication.
You shall cooperate with and furnish to the Offeror and any other
organization (and its representatives) designated by the Offeror, such
other information on the tendering stockholders as may be reasonably
requested from time to time.
You shall furnish to the Offeror, upon request, master lists of Shares
tendered for purchase, including an A to Z list of the tendering
stockholders.
You are also authorized and directed to provide the person listed above
or any other person designated by such person with such other
information relating to the Shares, the Offer to Purchase, Letter of
Transmittal, and Notice of Guaranteed Delivery as the Offeror or such
person(s) may reasonably request from time to time.
12. All Shares duly purchased by the Offeror pursuant to the Offer should
be canceled.
13. You are not authorized to offer to pay any concessions, commissions or
solicitations fees to any broker, dealer, bank or other persons or to
engage or utilize any person to solicit tenders.
14. Letters of Transmittal shall be stamped by you as to the date 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 the
Offeror.
15. Any inconsistency between this agreement, on the one hand, and the
Offer to Purchase and Letter of Transmittal (as they may be amended
from time to time), on the other hand, shall be resolved in favor of
the Offer to Purchase and Letter of Transmittal, except with respect to
the duties, liabilities and indemnification of you as Depositary.
16. The Offeror covenants and agrees to indemnify and hold you harmless
against any loss, liability or expenses incurred without gross
negligence or bad faith on your part arising out of or in connection
with the administration of your duties hereunder, including the cost
and expenses of defending yourself against any claim or liability in
the premises.
American Securities Transfer & Trust, Inc.
July 8, 1997
Page 6
17. This agreement and appointment as Depositary shall be construed and
enforced in accordance with the laws of the State of Texas, and shall
inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. This
agreement is intended for the benefit of the parties hereto and is not
intended to confer upon any other person or entity any rights or
remedies. THIS AGREEMENT MAY NOT BE MODIFIED ORALLY.
------------------------------------------
18. This agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same agreement.
19. You will arrange to comply with IRS regulations with regard to
obtaining certified Tax Identification Numbers (TIN). We understand
that you are required to deduct 31% on payments (a) to non-exempt
holders who have not supplied their correct TIN and the required
certification and (b) to holders as to whom you have been instructed by
the IRS to deduct. You will forward appropriate funds to the IRS.
For further information, refer to Instruction 8 regarding backup
withholding and Substitute Form W-9 in the Letter of Transmittal
annexed hereto as Exhibit B.
20. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Offer.
Please indicate your agreement with the foregoing by signing and
returning the enclosed copy of this Depositary Agreement.
Sincerely,
CAPRITO GAS CORPORATION
By:/s/ Xxxxx X. Xxxxxx
----------------------
Xxxxx X. Xxxxxx, President
AMERICAN SECURITIES TRANSFER & TRUST, INC.
By: /s/
---------------------------------
Its:
--------------------------------
American Securities Transfer & Trust, Inc.
July 8, 1997
Page 7
SCHEDULE I
TO DEPOSITARY AGREEMENT
Caprito Gas Corporation will pay American Securities Transfer & Trust, Inc. a
fee of $500.00 for acting as Depositary and Disbursing Agent in connection with
the Offer. In addition to the aforementioned fee, Caprito Gas Corporation will
pay a $5.00 fee per each item submitted to American Securities Transfer & Trust,
Inc. in accordance with the Depositary Agreement.
WIRE INSTRUCTIONS ARE AS FOLLOWS:
UNION BANK & TRUST
000 XXXXXXXX
XXXXXX, XX 00000 (303) 744-3221)
ABA # 000000000
CREDIT ACCOUNT#___________
ACCOUNT NAME:______________
