Exhibit (d)(4)
CUSTODY AGREEMENT AND LIMITED POWER OF ATTORNEY
THIS CUSTODY AGREEMENT AND LIMITED POWER OF ATTORNEY (this "Agreement"),
dated this 17th day of March, 2006, is by and among Saker Holdings Corp., a
Delaware corporation ("SHC"), and the individuals named on the signature pages
hereto. The individuals named on the signature pages hereto (other than the
Custodian and Attorney-in-Fact, as defined below) are at times referred to
herein individually as a "Tendering Shareholder" and, collectively, as the
"Tendering Shareholders." The Tendering Shareholders, together with the
Custodian and the Attorney-in-Fact are at times referred to herein individually
as a "Party" and, collectively, as the "Parties."
WHEREAS, Foodarama Supermarkets, Inc. (the "Company" or "Foodarama") and
SHC have entered into a Tender Offer and Support Agreement, dated as of March 2,
2006 (the "Tender Offer and Support Agreement") whereby SHC proposes to acquire
all of the outstanding shares of Foodarama's common stock, $1.00 par value per
share, not owned by the shareholders of SHC, pursuant to a cash tender offer to
purchase such shares at a price of fifty three dollars ($53) per share (the
"Offer");
WHEREAS, the Offer shall be conditioned upon, among other things, the
approval by the Company's shareholders of an agreement and plan of share
exchange pursuant to which each outstanding share of Foodarama's common stock
would be exchanged for one share of common stock of FSM-Delaware, Inc., a newly
formed Delaware corporation (the "Share Exchange");
WHEREAS, each Tendering Shareholder has agreed to tender in the Offer
those shares of Foodarama common stock listed next to the Tendering
Shareholder's name on Schedules A and A-1 hereto (the "Tender Shares"); and
WHEREAS, in furtherance and support of the Offer and the Share Exchange,
each Tendering Shareholder has agreed to execute this Agreement for the purposes
more specifically set forth herein.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Appointment of Attorney-in-Fact.
(a) Generally. In connection with the tendering of the Tender Shares in
the Offer, each Tendering Shareholder hereby appoints ▇▇▇▇ ▇. ▇▇▇▇▇▇
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., to act in all respects
hereunder in his sole discretion, the true attorney-in-fact (the
"Attorney-in-Fact") of such Tendering Shareholder, with full power
and authority in the name of and for and on behalf of such Tendering
Shareholder with respect to all matters arising out of or in
connection with the tendering of such Tender Shares, including, but
not limited to, the power and authority:
(i) to effect the delivery to the Custodian of those Certificates
listed on Schedule A-1 hereto;
(ii) to tender the Tender Shares in the Offer on behalf of such
Tendering Shareholder and make, execute, acknowledge and
deliver all documents and instruments which may be required in
connection therewith, including, but not limited to, a letter
of transmittal, the execution and delivery of such documents
by the Attorney-in-Fact to be conclusive evidence with respect
to his approval thereof, and to carry out and comply with each
and all of the provisions of the Offer in connection
therewith;
(iii) to exercise in his sole and absolute discretion any power
conferred upon and to take any action authorized or required
to be taken by any such Tendering Shareholder pursuant to this
Agreement as fully as such Tendering Shareholder could if then
personally present and acting and to give such instructions to
the Company as the Attorney-in-Fact determines with respect to
the transfer on the books of the Company of the Tender Shares
owned by such Tendering Shareholder in order to effect such
tender; and
(iv) to retain legal counsel in connection with any and all matters
referred to herein.
(b) Tender Shares Held by UBS. As a result of certain obligations owed
to UBS AG ("UBS") by ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "UBS Obligations"),
which obligations are secured, in part, by eight thousand (8,000)
Tender Shares beneficially owned by her (the "Collateral Shares"),
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will not be able to comply with the requirements
of Section 2(b) below with respect to the delivery of her
Certificates representing the Collateral Shares. As such, ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ hereby (i) undertakes to deliver to the Custodian those
Certificates representing the Collateral Shares and related stock
powers as set forth in Section 2(b) below; (ii) appoints the
Attorney-in-Fact to arrange for UBS to deliver the Collateral Shares
against the payment of the Offer price from SHC or for the
Attorney-in-Fact to deliver the Collateral Shares. The
Attorney-in-Fact is hereby empowered to take any and all actions
necessary or appropriate to effect the delivery of the Collateral
Shares as set forth herein, including, but not limited to, entering
into one or more agreements with UBS to reasonably accomplish the
foregoing.
Should ▇▇▇▇ ▇. ▇▇▇▇▇▇ be unable or unwilling to act as attorney-in-fact as
provided for herein, each Tendering Shareholder hereby appoints ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., to act in all respects hereunder
in his sole discretion, as the true attorney-in-fact of such Tendering
Shareholder, with full power and authority in the name of and for and on behalf
of such Tendering Shareholder as if originally named above and appointed hereby.
Should ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ be unable or unwilling to act as attorney-in-fact,
each Tendering Shareholder hereby appoints the law firm of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, P.C. to act in all respects hereunder in its sole discretion, as the
true attorney-in-fact of such Tendering Shareholder, with full power
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and authority in the name of and for and on behalf of such Tendering Shareholder
as if originally named above and appointed hereby.
2. Appointment of Custodian; Deposit of Shares.
(a) Each Tendering Shareholder hereby appoints ▇▇▇▇ ▇. ▇▇▇▇▇▇ to act as
the custodian (the "Custodian") of the certificates (the
"Certificates") representing all of the Tender Shares held by such
Tendering Shareholder on the terms and subject to the conditions set
forth in this Agreement. Should ▇▇▇▇ ▇. ▇▇▇▇▇▇ be unable or
unwilling to act as custodian as provided for herein, each Tendering
Shareholder hereby appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ to act as custodian
for such Tendering Shareholder as if originally named above and
appointed hereby. Should ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ be unable or unwilling
to act as custodian, each Tendering Shareholder hereby appoints the
law firm of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to act as custodian
for such Tendering Shareholder as if originally named above and
appointed hereby. In such event, ▇▇▇▇ ▇. ▇▇▇▇▇▇ shall deliver or
cause to be delivered the Certificates to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and/or
the law firm of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ shall deliver or cause to be delivered the Certificates to
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., as the case may be.
(b) Contemporaneously with the execution of this Agreement (except as
otherwise provided herein), each Tendering Shareholder has delivered
to the Custodian those Certificates listed next to such Tendering
Shareholder's name on Schedule A hereto, together with a stock
power, in negotiable form (with signatures guaranteed by a
commercial bank or trust company or by a firm that is a member of a
national securities exchange or of the National Association of
Securities Dealers, Inc.). With respect to those Certificates listed
next to such Tendering Shareholder's name on Schedule A-1 hereto
(except for the Certificates representing the Collateral Shares),
such Tendering Shareholder hereby undertakes to deliver to the
Custodian within thirty (30) days following the date hereof, such
Tendering Shareholder's respective Certificates, together with a
stock power, in negotiable form as provided above, representing such
Tender Shares. Further, each such Tendering Shareholder hereby
grants the Attorney-in-Fact the full power and authority in the name
of and for and on behalf of such Tendering Shareholder with respect
to all matters arising out of or in connection with effecting the
delivery of those Certificates listed on Schedule A-1 to the
Custodian within such thirty (30) period. The Custodian shall hold
all of the Certificates for the account of each Tendering
Shareholder and shall dispose of the Certificates in accordance with
the terms of this Agreement.
(c) As promptly as practicable upon the receipt by the Attorney-in-Fact
and Custodian of a Tender Notice (as defined in Section 4(a) hereof)
from SHC, the Attorney-in-Fact and Custodian shall tender all the
Tender Shares in the Offer on behalf of the Tendering Shareholders
unless, prior to such tender there shall have been entered an order
by a court of competent jurisdiction prohibiting such tender.
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(d) Each Tendering Shareholder hereby authorizes and directs the
Custodian to hold the Certificates deposited herewith in his custody
with full power in the name of and for and on behalf of such
Tendering Shareholder and to do all things and perform all acts
pursuant to the terms of this Agreement as the Custodian in his sole
and absolute discretion deems appropriate, including without
limitation, the tendering of the Tender Shares and the execution and
delivery of all certificates, receipts, instruments and letters of
transmittal to SHC, the Company's registrar and transfer agent, the
depository for the Offer, or any other person and any other
documents and papers required, contemplated by, or deemed by the
Custodian appropriate in connection with this Agreement.
3. Representations and Warranties. As of the date of this Agreement, each
Tendering Shareholder (with the exception of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ with
respect to subparagraph (d) below, which representation shall be true as
of the closing date of the Offer) hereby represents, warrants and agrees
that:
(a) he/she has reviewed the Tender Offer and Support Agreement and the
documents incorporated by reference therein and understands same;
(b) he/she hereby authorizes the Attorney-in-Fact, acting on behalf of
such Tendering Shareholder, to make such representations,
warranties, covenants and agreements to the Company's registrar and
transfer agent or any other person as contemplated hereby;
(c) this Agreement has been duly authorized, executed and delivered by
such Tendering Shareholder and constitutes the valid and binding
agreement of such Tendering Shareholder;
(d) he/she has full power and authority to tender, sell, assign and/or
transfer the Tender Shares, as the case may be, as provided for in
this Agreement and that such Tender Shares are free and clear of all
liens, restrictions, charges and encumbrances; and
(e) he/she will, upon request by the Attorney-in-Fact and/or Custodian,
execute and deliver any additional documents deemed by the
Attorney-in-Fact and/or Custodian to be necessary or desirable to
complete the tender of the Tender Shares.
4. Notice Obligations of SHC; Reliance of Attorney-in-Fact and Custodian. SHC
shall deliver notices to the Attorney-in-Fact and Custodian as set forth
below. Foodarama shall have the right, as third-party beneficiary, to
enforce this covenant against SHC. The Attorney-in-Fact and Custodian
shall be entitled to, and shall, rely on all notices from SHC which, on
their face, comply with subparagraph (a), (b) or (c) below, without
investigation of the facts recited therein, and shall have no liability to
any party hereto or to Foodarama or any other person for acts taken in
reliance thereon.
(a) As promptly as practicable following the satisfaction and/or waiver
of all of the Tender Offer Conditions (as defined in the Tender
Offer and Support Agreement),
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except for such conditions to be satisfied contemporaneously with
the closing of the Offer, SHC shall deliver to the Attorney-in-Fact
and Custodian a written notice (the "Tender Notice") which shall
state that all such conditions have been satisfied and/or waived and
shall direct the Attorney-in-Fact and Custodian to tender all the
Tender Shares in the Offer.
(b) As promptly as practicable following the completion of the Offer,
SHC shall deliver to the Attorney-in-Fact and Custodian a written
notice (the "Completion Notice") which shall state that the Offer
has been completed.
(c) As promptly as practicable following the earlier of (i) the date of
the termination of the Tender Offer and Support Agreement, and (ii)
December 31, 2006, if the Offer has not been completed by such date,
SHC shall deliver to the Attorney-in-Fact and Custodian a written
notice (the "Termination Notice") which shall (x) state that the
Offer has not been completed by December 31, 2006 or that the Tender
Offer and Support Agreement has terminated, (y) enclose or transmit
simultaneously to the Custodian by other means all Certificates
representing the Tender Shares which had been tendered in the Offer
and not previously returned to the Custodian, and (z) direct the
Custodian to return all Certificates to the Tendering Shareholders.
5. Return of Certificates; Termination of Agreement.
(a) This Agreement and all authority hereby conferred are granted and
conferred for the purpose of assuring completion of the transactions
contemplated by the Offer, the Share Exchange and this Agreement.
The powers granted to the Attorney-in-Fact and the Custodian
pursuant to this Agreement are coupled with an interest and are
irrevocable and shall not be terminated by any act of any Tendering
Shareholder or by operation of law, whether by death, disability or
the occurrence of any other event. If after the execution hereof any
Tendering Shareholder shall die, become disabled or any other such
event shall occur, before the completion of the transactions
contemplated by the Offer, the Share Exchange and/or this Agreement,
the Attorney-in-Fact and the Custodian are nevertheless authorized
and directed to complete all of such transactions on behalf of such
Tendering Shareholder as if such death, disability or other event
had not occurred and regardless of notice thereof.
(b) As promptly as practicable following the receipt by the Custodian of
a Completion Notice (as defined in Section 4(b) hereof) or a
Termination Notice (as defined in Section 4(c) hereof) from SHC, the
Custodian shall cause all Certificates in its possession or control
(if any) representing Tender Shares to be delivered to the Tendering
Shareholders who initially delivered such Certificates to the
Custodian pursuant hereto. Automatically upon the last such
delivery, this Agreement shall terminate. Thereafter, the
Attorney-in-Fact and Custodian shall have no further obligations
hereunder with respect to the Tender Shares or the stock powers.
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6. Limitation of Liability; Indemnification. Each Tendering Shareholder
agrees that whenever the Attorney-in-Fact or the Custodian deem it
appropriate, the Attorney-in-Fact or the Custodian may obtain the advice
of such counsel as either shall select in connection with any matter
arising under the Offer, the Share Exchange or this Agreement, and the
Attorney-in-Fact and/or the Custodian, and any successor attorney-in-fact
or custodian, shall not be liable for any action taken or omitted in
accordance with such advice. The Tendering Shareholders, jointly and
severally, agree to indemnify and hold harmless the Attorney-in-Fact and
the Custodian, and any successor attorney-in-fact or custodian, against
any and all losses, claims, damages or liabilities (including all costs,
legal and other expenses) incurred as a result of any action taken or
omitted by the Attorney-in-Fact or the Custodian in accordance with the
Offer, the Share Exchange and/or this Agreement, whether or not under the
advice of counsel, except with respect to any losses, claims, damages or
liabilities which shall be finally adjudicated to be the result of the
gross negligence or willful bad faith of the Attorney-in-Fact or the
Custodian. This agreement to indemnify shall survive the tendering of the
Tender Shares as contemplated herein, the Share Exchange, the Offer, the
transactions contemplated by the Offer and the Share Exchange and the
termination of this Agreement. For purposes of clarity, and without
limiting any other provisions contained herein, references to
"Attorney-in-Fact" and "Custodian" in Sections 6 and 7 of this Agreement
shall apply to the actions taken by any or all of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ and/or the law firm of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., when
acting in such capacities as provided for herein.
7. Payment and Expenses. The Attorney-in-Fact and Custodian shall not receive
any payment for the services performed by any or all of them hereunder.
Any reasonable expenses incurred by the Attorney-in-Fact and/or the
Custodian in connection with the performance of this Agreement shall be
borne equally by the Tendering Shareholders.
8. Applicable Law. The validity, enforceability, interpretation and
construction of this Agreement shall be determined in accordance with the
internal laws of the State of New Jersey, without regard to the conflict
of laws provisions thereof, and this Agreement shall inure to the benefit
of, and shall be binding upon, each Tendering Shareholder and such
Tendering Shareholder's heirs, executors, administrators, successors and
assigns, as the case may be.
9. Amendment. This Agreement may only be amended pursuant to a writing signed
by or on behalf of all of the Parties hereto, and Foodarama, as
third-party beneficiary under Section 4 hereof.
10. Effective Time. This Agreement shall become binding and effective on the
signatories hereto once the holders of greater than fifty-percent (50%) of
the shares of Foodarama listed on Schedules A and A-1 hereto have executed
this Agreement.
11. Entire Agreement. This Agreement embodies the entire agreement between the
Parties hereto and supercedes all prior agreements and understandings
relating to the subject matter hereof.
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12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
13. Survival. All agreements and representations contained herein shall
survive the delivery and execution of this Agreement and the tender of
shares in the Offer.
14. Rights and Privileges. Each Tendering Shareholder shall remain the owner
of his or her respective Tender Shares and shall retain all rights and
privileges associated with ownership of such Tender Shares not otherwise
inconsistent with the terms of this Agreement.
[Signature Pages Follow.]
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IN WITNESS WHEREOF, the Parties have caused this Custody and Limited
Power of Attorney Agreement to be executed as of the first date written above.
Saker Holdings Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Saker Trust FBO Arianna ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust FBO ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, III
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Trustee
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust FBO ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Trustee
▇▇▇▇ ▇. ▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇▇▇ Mount
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trustee
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ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this _____ day of ___________, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
subscribed and swore to such instrument and acknowledged that he executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[SEAL]
---------------------------------------
(Notary Public in and for the aforesaid
County and State)
My Commission Expires:
Notary: Please complete, state, county, and date and affix notarial seal.
10
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this _____ day of ___________, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
subscribed and swore to such instrument and acknowledged that she executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[SEAL]
---------------------------------------
(Notary Public in and for the aforesaid
County and State)
My Commission Expires:
Notary: Please complete, state, county and date and affix notarial seal.
11
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this _____ day of ___________, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
subscribed and swore to such instrument and acknowledged that she executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[SEAL]
---------------------------------------
(Notary Public in and for the aforesaid
County and State)
My Commission Expires:
Notary: Please complete, state, county and date and affix notarial seal.
12
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this _____ day of ___________, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared ▇▇▇▇ ▇▇▇▇▇, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument, and subscribed and
swore to such instrument and acknowledged that she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[SEAL]
---------------------------------------
(Notary Public in and for the aforesaid
County and State)
My Commission Expires:
Notary: Please complete, state, county and date and affix notarial seal.
13
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this _____ day of ___________, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
subscribed and swore to such instrument and acknowledged that she executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[SEAL]
---------------------------------------
(Notary Public in and for the aforesaid
County and State)
My Commission Expires:
Notary: Please complete, state, county and date and affix notarial seal.
14
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this _____ day of ___________, 200__, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the President and Chief Executive Officer, Saker Holdings Corp., the
entity described in and which executed the foregoing Custody Agreement, who
acknowledged and swore that he signed and delivered said instrument on behalf of
said entity.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[SEAL]
---------------------------------------
(Notary Public in and for the aforesaid
County and State)
My Commission Expires:
Notary: Please complete, state, county and date and affix notarial seal.
15
ATTORNEY-IN-FACT AND CUSTODIAN SIGNATURES
The undersigned hereby agrees to act as Custodian of the Certificates
identified on Schedule A attached hereto in accordance with the terms of the
Custody Agreement and Limited Power of Attorney as of the date first written
above.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
In the event that ▇▇▇▇ ▇. ▇▇▇▇▇▇ is unable or unwilling to act as
Custodian under the Custody Agreement and Limited Power of Attorney, the
undersigned hereby agrees to act as custodian in accordance with the terms of
the Custody Agreement and Limited Power of Attorney as of the date first written
above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
In the event that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is unable or unwilling to act as
Custodian under the Custody Agreement and Limited Power of Attorney, the
undersigned hereby agrees to act as Custodian in accordance with the terms of
the Custody Agreement and Limited Power of Attorney as of the date first written
above.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
The undersigned hereby agrees to act as Attorney-in-Fact for the above
named Tendering Shareholders in accordance with the terms of the Custody
Agreement and L0imited Power of Attorney as of the date first written above.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
16
In the event that ▇▇▇▇ ▇. ▇▇▇▇▇▇ is unable or unwilling to act as
Attorney-in-Fact under the Custody Agreement and Limited Power of Attorney, the
undersigned hereby agrees to act as Attorney-in-Fact in accordance with the
terms of the Custody Agreement and Limited Power of Attorney as of the date
first written above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
In the event that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is unable or unwilling to act as
Attorney-in-Fact under the Custody Agreement and Limited Power of Attorney, the
undersigned hereby agrees to act as Attorney-in-Fact in accordance with the
terms of the Custody Agreement and Limited Power of Attorney as of the date
first written above.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
17
SCHEDULE A
SCHEDULE OF CERTIFICATES
The Certificates representing shares of common stock of the Company being
delivered simultaneously with the execution of the Custody Agreement and Limited
Power of Attorney by the Tendering Shareholders named therein are identified in
the following schedule.
Number of Shares of
Common Stock to be
Delivered in
Certificate Number of Accordance
Numbers Shares Name of Record Owner Herewith
----------- --------- ------------------------------------------------------- -------------------
NYU7787 2,000 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 2,000
NYU7496 5,000 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 5,000
NYU7399 1,000 ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,000
NYU7400 1,000 ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,000
NYU7788 4,000 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,000
NYU7626 630 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust FBO ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, III 630
NYU7660 747 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust FBO ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, III 747
NYU7625 630 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust FBO ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 630
NYU7661 747 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust FBO ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 747
NYU7621 630 ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 630
NYU7656 747 ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 747
NYU7622 630 ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ 630
NYU7657 747 ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ 747
NYU7620 630 ▇▇▇▇▇▇ ▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ 630
NYU7658 747 ▇▇▇▇▇▇ ▇▇▇▇▇ Trust FBO Arianna ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ 747
NYU7619 630 ▇▇▇▇ ▇. ▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇▇▇ Mount 630
NYU7659 747 ▇▇▇▇ ▇. ▇▇▇▇▇ Trust FBO ▇▇▇▇▇▇▇▇ Mount 747
18
SCHEDULE A-1
SCHEDULE OF CERTIFICATES
The Certificates representing shares of common stock of the Company to be
delivered at a future date as provided for in the Custody Agreement and Limited
Power of Attorney by the Tendering Shareholders named therein are identified in
the following schedule.
Number of Shares of
Common Stock to be
Delivered in
Certificate Number of Accordance
Numbers Shares Name of Record Owner Herewith
----------- --------- ---------------------- -------------------
TBD 250 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 250
TBD 8,000 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 8,000
19
