EXHIBIT (a)(12)
LETTER OF TRANSMITTAL AND DIRECTION
FOR USE BY PARTICIPANTS IN THE EMCO LIMITED
EMPLOYEE STOCK PURCHASE PLAN
This Letter of Transmittal and Direction (this "LETTER OF
TRANSMITTAL") is for use by participants in the Employee Stock Purchase
Plan (the "PLAN") of Emco Limited ("EMCO") in connection with the offer
(the "OFFER") dated February 28, 2003 made by 2022841 Ontario Inc. (the
"OFFEROR"), an indirect wholly-owned subsidiary of Blackfriars Corp., to
purchase all of the outstanding Common Shares of Emco (the "EMCO SHARES").
In order to accept the Offer, participants in the Plan
must properly complete and sign this Letter of Transmittal and deliver it
to the sole trustee for the Plan, Clarica Trust Company (the "TRUSTEE")
prior to 8:00 p.m. (EST) on the Expiry Date (as defined in the Offer)
(currently Monday, April 7, 2003, but subject to extension at the
discretion of the Offeror). See Instruction 1 below for delivery
instructions.
Participants in the Plan are referred to the offer to
purchase and take-over bid circular of the Offeror dated February 28, 2003
(the "OFFEROR'S CIRCULAR") that accompanies this Letter of Transmittal.
Capitalized terms used but not otherwise defined in this Letter of
Transmittal have respective meanings set out in the Offeror's Circular. The
terms and conditions of the Offer are incorporated by reference in this
Letter of Transmittal.
PLEASE CAREFULLY READ THE INSTRUCTIONS SET OUT BELOW
BEFORE COMPLETING THIS LETTER OF TRANSMITTAL.
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TO: 2022841 ONTARIO INC.
AND TO: COMPUTERSHARE TRUST COMPANY OF CANADA
AND TO: CLARICA TRUST COMPANY
The undersigned:
1. irrevocably authorizes and directs the Trustee to tender into the Offer
ALL (unless a lesser number or percentage is specified hereafter:
_____________, in which case such lesser number or percentage) of the
Emco Shares held on behalf of the undersigned by the Trustee pursuant
to the Plan, together with any and all dividends, stock dividends,
securities, rights, warrants, payments, assets or other interests and
distributions declared, paid, issued, distributed, made or transferred
on or in respect of such Emco Shares on and after February 20, 2003
(the date of the announcement of the Offer) (collectively, the
"PURCHASED SHARES"), and for doing so, this shall be the Trustee's good
and sufficient authority;
2. subject only to the provisions of the Offer regarding withdrawal,
irrevocably accepts the Offer for and in respect of the Purchased
Shares and, on and subject to the terms and conditions of the Offer,
sells, assigns and transfers to the Offeror all of the undersigned's
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right, title and interest in and to the Purchased Shares, effective on
and after the date on which the Offeror takes up and pays for the
Purchased Shares (the "EFFECTIVE DATE");
3. acknowledges that, in order for the undersigned to exercise any right
of withdrawal the undersigned may have under the provisions of the
Offer, the undersigned must provide written notice to such effect to
the Trustee, Clarica Trust Company, at 227 King Street South, Waterloo,
Ontario, N2J 4C5, Attention: Kim Dreher, by personal delivery, courier
or fax (fax no. (519) 888-3143);
4. acknowledges receipt of the Offeror's Circular;
5. represents and warrants that:
(a) the undersigned is a "Participant" in the Plan (as such term
is defined therein);
(b) the undersigned has full power and authority to instruct the
Trustee to tender the Purchased Shares into the Offer and to
sell, assign and transfer the Purchased Shares to the Offeror
as contemplated herein;
(c) the undersigned beneficially owns the Purchased Shares free
and clear of all liens, restrictions, charges, encumbrances,
claims and equities whatsoever;
(d) the undersigned has not sold, assigned or transferred, or
agreed to sell, assign or transfer, any of the Purchased
Shares to any other person; and
(e) when the Purchased Shares are taken up and paid for by the
Offeror, the Offeror will acquire good title thereto free and
clear of all liens, restrictions, charges, encumbrances,
claims and equities whatsoever;
6. irrevocably constitutes and appoints any officer of the Offeror as the
true and lawful agent, attorney and proxy of the undersigned with
respect to the Purchased Shares, effective on and after the Effective
Date, with full power of substitution, in the name and on behalf of the
undersigned (such power of attorney being deemed to be an irrevocable
power coupled with an interest):
(a) to register, record, transfer and enter the transfer of
Purchased Shares on the appropriate register of shareholders
maintained by Emco; and
(b) to exercise any and all of the rights of the holder of the
Purchased Shares;
7. agrees, effective on and after the Effective Date, not to vote any of
the Purchased Shares at any meeting of holders of Emco Shares or to
exercise any other rights or privileges attached to the Purchased
Shares;
8. covenants to execute, upon request, any additional documents, transfers
or other assurances necessary or desirable to complete the sale,
assignment and transfer of the Purchased Shares to the Offeror
contemplated herein;
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9. acknowledges that all authority herein conferred by the undersigned
shall survive the death, incapacity, bankruptcy or insolvency of the
undersigned and that all obligations of the undersigned herein shall be
binding upon the heirs, executors, personal representatives, successors
and assigns of the undersigned; and
10. by virtue of the execution of this Letter of Transmittal, shall be
deemed to have agreed that all questions as to validity, form,
eligibility (including timely receipt) and acceptance of any Purchased
Shares deposited pursuant to the Offer will be determined by the
Offeror, in its reasonable discretion, and that such determination
shall be final and binding and acknowledges that there shall be no duty
or obligation on the Offeror, Computershare Trust Company of Canada
(the "DEPOSITARY") or any other person to give notice of any defect or
irregularity in any deposit and no liability shall be incurred by any
of them for failure to give any such notice.
The undersigned instructs the Trustee, the Offeror and the
Depositary, upon the Offeror taking up and paying for the Purchased Shares, to
mail the resulting cheque by first class mail, postage prepaid, in accordance
with the instructions given below in Block A. Should the Purchased Shares not be
purchased in accordance with the terms of the Offer, this Letter of Transmittal
shall be returned to the undersigned in accordance with the instructions in the
preceding sentence and the Purchased Shares shall be returned to the Trustee.
FOR QUEBEC PLAN PARTICIPANTS ONLY: By reason of the use by the
undersigned of an English language form of Letter of Transmittal, the
undersigned shall be deemed to have required that any contract evidenced by the
Offer, as accepted through this Letter of Transmittal, as well as all documents
related thereto, be drawn exclusively in the English language. En raison de
l'usage d'une lettre d'envoi en langue anglaise par le soussigne, le soussigne
et les destinataires sont reputes avoir demande que tout contrat atteste par
l'offre et son acceptation par cette lettre d'envoi, de meme que tous les
documents qui s'y rapportent, soient rediges exclusivement en langue anglaise.
BLOCK A
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ISSUE CHEQUE IN THE NAME OF AND SEND CHEQUE TO:
(please print)
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(Name)
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(Street Address and Number)
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(City and Province/State)
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(Country and Postal Code/Zip Code)
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(Telephone - Business Hours)
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(Social Insurance or Tax Identification Number)
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Dated: , 2003
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Signature of Plan Participant or Authorized
Representative (see Instruction 3)
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Name of Plan Participant (please print or type)
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Name of Authorized Representative (please
print or type) (if applicable)
BLOCK B
SUBSTITUTE FORM W-9
TO BE COMPLETED BY U.S. PLAN PARTICIPANTS ONLY
(See Instruction 5)
Under penalty of perjury, I certify that:
1. The social security or other taxpayer identification number stated above is
my correct taxpayer identification number (or I am waiting for a number to be
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 United States Internal
Revenue Service 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).
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 underreporting interest or dividends on your tax return.
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Tax Identification Number
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Signature of Plan Participant Date
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INSTRUCTIONS
1. DELIVERY OF LETTER OF TRANSMITTAL
(a) This Letter of Transmittal, properly completed and signed,
must be received by the Trustee, Clarica Trust Company, at its
office specified below at or prior to 8:00 p.m. (EST) on the
Expiry Date (as defined in the Offer) (currently Monday, April
7, 2003, but subject to extension at the discretion of the
Offeror).
(b) The method used to deliver this Letter of Transmittal is at
the option and risk of the Plan participant, and delivery will
be deemed effective only when this Letter of Transmittal is
actually received as indicated above. The Offeror recommends
that this Letter of Transmittal be hand delivered or couriered
to the Trustee, Clarica Trust Company, at its office specified
below and that a receipt therefor be obtained; otherwise, the
use of registered mail with return receipt requested, properly
insured, is recommended.
2. SIGNATURES
This Letter of Transmittal must be completed and signed by the
Plan participant accepting the Offer or by such Plan participant's duly
authorized representative (in accordance with Instruction 3 below).
3. FIDUCIARIES, REPRESENTATIVES AND AUTHORIZATIONS
Where this Letter of Transmittal is executed by a person
acting as an executor, administrator, trustee, guardian, attorney-in-fact, agent
or any other representative or fiduciary capacity, this Letter of Transmittal
must be accompanied by satisfactory evidence/proof of his or her appointment and
authority to act. Any of the Offeror, the Trustee or the Depositary, at its sole
discretion, may require additional evidence of appointment and authority to act.
4. PARTIAL TENDERS
If less than all of the Emco Shares held by the Trustee on
behalf of the Plan participant pursuant to the Plan are to be deposited into the
Offer, fill in the number or percentage of Emco Shares to be deposited in the
appropriate space in Section 1 of this Letter of Transmittal. In such case, the
Emco Shares not deposited will continue to be held in the Plan. The total number
of Emco Shares held by the Trustee on behalf of the Plan participant will be
deemed to have been deposited unless otherwise indicated.
5. SUBSTITUTE FORM W-9
Each U.S. Plan participant is required to provide the Trustee
and the Depositary with a correct Taxpayer Identification Number ("TIN") on the
Substitute Form W-9 which is provided in Block B, and to certify whether such
Plan participant is subject to backup withholding of United States federal
income tax. If a U.S. Plan participant has been notified by the Internal Revenue
Service that such Plan participant is subject to backup withholding, such Plan
participant must cross out item 2 of the Substitute Form W-9, unless such Plan
participant has since been notified by the Internal Revenue Service that such
Plan participant is no longer
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subject to backup withholding. Failure to provide the information in the
Substitute Form W-9 may subject a U.S. Plan participant to 30% United States
federal income tax withholding on the payment of the purchase price of all Emco
Shares purchased from such Plan participant. If a U.S. Plan participant has not
been issued a TIN and has applied for one or intends to apply for one in the
near future, such Plan participant should write "Applied For" in the space
provided for in the TIN in the Substitute Form W-9, and sign and date the
Substitute Form W-9. If "Applied For" is written in the Substitute Form W-9 and
the Trustee and the Depositary are not provided with a TIN within 60 days, the
Trustee and the Depositary will withhold 30% of all payments of the purchase
price to such Plan participant until a TIN is provided to the Trustee and the
Depositary.
6. MISCELLANEOUS
(a) No alternative, conditional or contingent deposits of Emco
Shares held pursuant to the Plan will be accepted. All
depositing Plan participants by execution of this Letter of
Transmittal waive any right to receive any notice of
acceptance of the Purchased Shares for payment.
(b) The Offer and any agreement resulting from the acceptance of
the Offer will be construed in accordance with and governed by
the laws of the Province of Ontario and the laws of Canada
applicable therein. The Plan participant signing this Letter
of Transmittal hereby unconditionally and irrevocably attorns
to the jurisdiction of the courts of the Province of Ontario.
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CLARICA TRUST COMPANY
227 King Street South
Waterloo, Ontario N2J 4C5
Attention: Kim Dreher
email: kim.dreher@clarica.com
telephone: 1-519-888-3900 ext. 5298
fax: 1-519-888-3143
ANY QUESTIONS AND REQUESTS FOR ASSISTANCE MAY BE DIRECTED BY PLAN PARTICIPANTS
TO EMCO AT THE TELEPHONE NUMBER AND LOCATION SET OUT BELOW:
Emco Limited
1108 Dundas Street East
London, Ontario N5W 3A7
Attention: Martha Lawson or Frances Smeets
email: mlawson@emcoltd.com or fsmeets@emcoltd.com
telephone: 1-519-453-9600
fax: 1-519-453-4659