Exhibit 11(c)
DEPOSITARY AGREEMENT
August 1, 1997
Securities Transfer Corporation
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Dear Sirs:
Northport Operating Company LC (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"), 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 Securities Transfer Corporation ("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
August 5, 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., Central Daylight Time on September 1,
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 8:00 a.m. central
daylight 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
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 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.
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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 24 hours before the day checks are mailed or delivered by you.
The Offeror will wire funds to: Duncanville National Bank, P. O. Xxx
000000, Xxxxxxxxxxx, Xxxxx 00000, for the account of Securities Transfer
Corporation, as Escrow Agent.
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 October 4, 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-
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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.
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 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 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 Xxxx Xxxxxxx, 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. central daylight 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
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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:
(a) Mr. Xxxx Xxxxxxx
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
(b) Mr. Xxxxxxx 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, Southwest Merchant
Group 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 persons 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
solicitation 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.
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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.
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.
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Please indicate your agreement with the foregoing by signing and returning
the enclosed copy of this Depositary Agreement.
Sincerely,
NORTHPORT OPERATING COMPANY LC
By: /s/ Xxxx Xxxxxx
-------------------------------------
Its Vice President
-------------------------------
SECURITIES TRANSFER CORPORATION
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Its: Vice President
---------------------------
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SECURITIES TRANSFER CORPORATION
(Schedule I)
*DEPOSITARY AGREEMENT FEE SCHEDULE*
SPECIAL SERVICES
Depositary Appointment Fee . . . . . $2,500.00 (paid at the time of appointment)
Processing fee per shareholder . . . . . . . . . . . . . . .9.00 per shareholder
Processing & printing checks . . . . . . . . . . . . . . . . . . . . . .Included
1099 preparation & mailing . . . . . . . . . . . . . . . . . . . . . . .Included
IRS electronic filing. . . . . . . . . . . . . . . . . . . . . . . . . .Included
Establish & reconcile escrow account . . . . . . . . . . . . . . . . . .Included
*Also included will be any processing and re-issuance of stock certificates with
the company's transfer agent (any transfer fee charged by the current Transfer
Agent will be at additional cost.)
MAILING SERVICES
1. Postage at cost. Payment for postage must be received prior to mailing
date.
2. Affix labels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $0.05
3. Fold or inserting of mailing material . . . . . . . . . . . 0.05 each piece
4. Collating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0.01
5. Meter of postage. . . . . . . . . . . . . . . . . . . . . . . . . . . .0.01
6. Sealing by hand . . . . . . . . . . . . . . . . . . . . . . . . . . . .0.01
7. 9x12 envelopes. . . . . . . . . . . . . . . . . . . . . . . . . . 0.10 each
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