Exhibit (d)(5)
CUSTODY AGREEMENT
THIS CUSTODY AGREEMENT (this "Agreement"), dated this 17th day of March,
2006, is by and among Saker Holdings Corp., a Delaware corporation ("SHC"), and
the individuals and entities named on the signature pages hereto. The
individuals and entities named on the signature pages hereto (other than the
Custodian, as defined below) are at times referred to herein individually as a
"Shareholder" and, collectively, as the "Shareholders." The Shareholders,
together with the Custodian, are at times referred to herein individually as a
"Party" and, collectively, as the "Parties." All references herein made to the
Custodian shall mean the Custodian and/or the Attorney-in-Fact (as defined
herein below) and any successor custodian.
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 Shareholder has agreed to exchange that number of shares of
common stock of Foodarama listed next to the Shareholder's name on Schedules A
and A-1 hereto (the "Exchange Shares") pursuant to the terms of that certain
Exchange Agreement, dated March 2, 2006, as amended by Amendment No. 1 to the
Exchange Agreement, dated March 17, 2006 (collectively, the "Exchange
Agreement"), for an equal number of newly issued shares of common stock of SHC;
and
WHEREAS, in furtherance and support of the Offer, the Share Exchange and
the Exchange Agreement, each 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 Custodian; Deposit of Shares.
(a) Each Shareholder hereby appoints Xxxx X. Xxxxxx to act as the
custodian (the "Custodian") of the certificates (the "Certificates")
representing all of the Exchange Shares held by such Shareholder on
the terms and subject to the conditions set forth in this Agreement.
Should Xxxx X. Xxxxxx be unable or unwilling to act as custodian as
provided for herein, each Shareholder hereby
appoints Xxxxxx X. Xxxxxxxx to act as custodian for such Shareholder
as if originally named above and appointed hereby. Should Xxxxxx X.
Xxxxxxxx be unable or unwilling to act as custodian, each
Shareholder hereby appoints the law firm of Xxxxxxxx, Xxxxxxxx &
Xxxxxx, P.C. to act as custodian for such Shareholder as if
originally named above and appointed hereby. In such event, Xxxx X.
Xxxxxx shall deliver or cause to be delivered the Certificates to
Xxxxxx X. Xxxxxxxx and/or the law firm of Xxxxxxxx, Xxxxxxxx &
Xxxxxx, P.C. and Xxxxxx X. Xxxxxxxx shall deliver or cause to be
delivered the Certificates to Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.C., as
the case may be.
(b) Contemporaneously with the execution of this Agreement (except as
otherwise provided herein), each Shareholder has delivered to the
Custodian such Shareholder's respective Certificates, together with
stock powers, 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.), representing those Exchange Shares listed
next to such Shareholder's name on Schedule A hereto. With respect
to those Certificates listed next to such Shareholder's name on
Schedule A-1 hereto (except for the Certificates representing the
Collateral Shares, as discussed below), such Shareholder hereby
undertakes to deliver to the Custodian within thirty (30) days
following the date hereof, such Shareholder's respective
Certificates, together with stock powers, in negotiable form as
provided above, representing such Exchange Shares. Further, each
such Shareholder hereby appoints the Custodian to act in all
respects hereunder in his sole discretion, the true attorney-in-fact
(the "Attorney-in-Fact") of such Shareholder, with full power and
authority in the name of and for and on behalf of such 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, including, but not limited to, the power and
authority to make, execute, acknowledge and deliver all documents
and instruments which may be required in connection therewith, 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
Exchange Agreement in connection therewith. The Custodian shall hold
the Certificates for the account of each such 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 Custodian of the
Exchange Notice (as defined in Section 3(a) hereof) from SHC, the
Custodian shall release the Certificates representing the Exchange
Shares and the stock powers referred to in subsection (b) above to
SHC on behalf of the Shareholders unless, prior to such release
there shall have been entered an order by a court of competent
jurisdiction prohibiting such release.
(d) As a result of certain obligations owed to UBS AG ("UBS") by Xxxxxxx
X. Xxxxx, which obligations are secured, in part, by sixty-nine
thousand (69,000) Exchange Shares owned by Xxxxxxx X. Xxxxx (the
"Collateral Shares"), Xxxxxxx X. Xxxxx will
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not be able to comply with subsection (b) above with respect to the
delivery of the Certificates representing such Collateral Shares. As
such, Xxxxxxx X. Xxxxx hereby undertakes to repay to UBS the
remaining balance of the indebtedness owed by him to UBS and shall
deliver to the Custodian prior to the closing date of the Offer
those Certificates representing the Collateral Shares beneficially
owned by him and related stock powers as provided in subsection (b)
above.
(e) Each Shareholder hereby authorizes, directs and appoints the
Custodian to effect the delivery to the Custodian of those
Certificates listed on Schedule A-1 hereto, to vote the Exchange
Shares as the true and lawful proxy for such Shareholder, with all
powers that the Shareholder would possess if personally present, in
favor of the Share Exchange at any regular or special meeting called
for such purpose and in furtherance of any and all matters related
to the Share Exchange and/or the Offer which may come before a vote
of the shareholders of the Company, and to hold all of the
Certificates deposited herewith in his custody with full power in
the name of and for and on behalf of such Shareholder:
(i) to exchange the Certificates for certificates representing
shares of common stock of SHC in accordance with the terms of
the Exchange Agreement upon receipt of the Exchange Notice
from SHC as provided for in subsection (c) above; and
(ii) 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 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.
2. Representations and Warranties. As of the date of this Agreement, each
Shareholder (with the exception of Xxxxxxx X. Xxxxx 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/it has reviewed the Tender Offer and Support Agreement, the
Exchange Agreement and the documents incorporated by reference
therein and understands same;
(b) he/she/it hereby authorizes the Custodian, acting on behalf of such
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 Shareholder and constitutes the valid and binding agreement of
such Shareholder;
3
(d) he/she/it has full power and authority to sell, assign and/or
transfer the Exchange Shares, as the case may be, as provided for in
the Exchange Agreement and in this Agreement and that such Exchange
Shares are free and clear of all liens, restrictions, charges and
encumbrances; and
(e) he/she/it will, upon request by the Custodian, execute and deliver
any additional documents deemed by the Custodian to be necessary or
desirable to complete the sale, assignment and transfer of the
Exchange Shares.
3. Notice Obligations of SHC; Reliance of Custodian. SHC shall deliver
notices to the Custodian as set forth below. Foodarama shall have the
right, as third-party beneficiary, to enforce this covenant against SHC.
The Custodian shall be entitled to, and shall, rely on all notices from
SHC which, on their face, comply with subsection (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), except for such conditions to be
satisfied contemporaneously with the closing of the Offer, SHC shall
deliver to the Custodian a written notice (the "Exchange Notice")
which shall state that all such conditions have been satisfied
and/or waived and shall direct the Custodian to exchange the
Certificates for certificates representing shares of common stock of
SHC in accordance with the terms of the Exchange Agreement.
(b) As promptly as practicable following the completion of the exchange
of Certificates, SHC shall deliver to the Custodian a written notice
(the "Completion Notice") which shall state that the exchange has
been completed.
(c) As promptly as practicable following the earlier of (i) the date of
termination of the Tender Offer and Support Agreement, and (ii)
December 31, 2006, if the Tender Offer has not been completed by
such date, SHC shall deliver to the Custodian a written notice (the
"Termination Notice") which shall (x) state that the Tender 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 Exchange Shares not previously returned to the
Custodian, and (z) direct the Custodian to return all Certificates
to the Shareholders.
4. 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 Exchange Agreement, the Offer and the Share
Exchange. The powers granted to the Custodian pursuant to this
Agreement, including, but not limited to, those powers to act as
proxy, are coupled with an interest and are irrevocable and shall
not be terminated by any act of any Shareholder or by operation of
law, whether
4
by death, disability or the occurrence of any other event. If after
the execution hereof any 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, the
Exchange Agreement and/or this Agreement, the Custodian is
nevertheless authorized and directed to complete all of such
transactions on behalf of such 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 3(b) hereof) or a
Termination Notice (as defined in Section 3(c) hereof) from SHC, the
Custodian shall cause all Certificates in his possession or control
(if any) representing Exchange Shares to be delivered to the
Shareholders who initially delivered such Certificates to the
Custodian pursuant hereto. Automatically upon the last such
delivery, this Agreement shall terminate. Thereafter, the Custodian
shall have no further obligations hereunder with respect to the
Exchange Shares or the stock powers.
5. Limitation of Liability; Indemnification. Each Shareholder agrees that
whenever the Custodian deems it appropriate, the Custodian may obtain the
advice of such counsel as he shall select in connection with any matter
arising under the Offer, the Share Exchange, the Exchange Agreement or
this Agreement, and the Custodian, and any successor custodian, shall not
be liable for any action taken or omitted in accordance with such advice.
The Shareholders, jointly and severally, agree to indemnify and hold
harmless the Custodian, and any successor 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
Custodian in accordance with the Offer, the Share Exchange, the Exchange
Agreement 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 Custodian. This agreement to indemnify shall
survive delivery of the Exchange 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 "Custodian" in Sections 5 and 6 of this Agreement shall
apply to the actions taken by any or all of Xxxx X. Xxxxxx, Xxxxxx X.
Xxxxxxxx and/or the law firm of Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.C., when
acting in such capacities as provided for herein.
6. Payment and Expenses. The Custodian shall not receive any payment for the
services performed by him hereunder. Any reasonable expenses incurred by
the Custodian in connection with the performance of this Agreement shall
be borne equally by the Shareholders.
7. 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 Shareholder and such
5
Shareholder's heirs, executors, administrators, successors and assigns, as
the case may be.
8. 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 3 hereof.
9. 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.
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 common stock listed on Schedules A and A-1 hereto
have executed this Agreement.
11. 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.
12. Survival. All agreements and representations contained herein shall
survive the delivery and execution of this Agreement and the exchange of
shares contemplated by the Exchange Agreement.
13. Rights and Privileges. Each Shareholder shall remain the owner of
his/her/its respective Exchange Shares and shall retain all rights and
privileges associated with ownership of the Exchange Shares not otherwise
inconsistent with the terms of this Agreement.
[Signature Pages Follow.]
6
IN WITNESS WHEREOF, the Parties have caused this Custody Agreement to be
executed as of the first date written above.
Saker Holdings Corp.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxxx, Xx.
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxx Xxxxxx
/s/ Xxxxxxx Xxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx Xxxxx
Xxxxxxx X. Xxxxx Trust f/b/o
Xxxxxxx Xxxxx Xxxxx
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx, Trustee
Xxxxxx Xxxxx Family Partnership, L.P.
By: Saker Family Corporation, General Partner
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx, President
7
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this ____ day of March ___, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxx X. Xxxxx,
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.
8
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this ____ day of March ___, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxxx X. Xxxxx,
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.
9
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this ____ day of March ___, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxx X. Xxxxx, Xx.,
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 March ___, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxx X. Xxxxx,
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.
11
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this ____ day of March ___, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxx Xxxxx,
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 March ___, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxx Xxxxx Xxxxxxx,
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 March ___, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxx Xxxxx Xxxxxx,
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 March ___, 2006, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxxx Xxxxx Xxxxx,
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.
15
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this ____ day of March ___, 200__, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxxx X. Xxxxx,
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.
16
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this ____ day of March ___, 200__, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxxx X. Xxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the President of Saker Family Corporation, General Partner of Xxxxxx Xxxxx
Family Partnership, L.P., 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.
17
ACKNOWLEDGEMENT
To be completed by Notary
STATE OF :
COUNTY OF :
On this ____ day of March ___, 200__, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared Xxxxxxx X. Xxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the Trustee of the Xxxxxxx X. Xxxxx Trust f/b/o Xxxxxxx Xxxxx Xxxxx, 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.
18
CUSTODIAN SIGNATURES
The undersigned hereby agrees to act as Custodian of the Certificates
identified on Schedules A and A-1 attached hereto in accordance with the terms
of the Custody Agreement as of the date first written above.
/s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
In the event that Xxxx X. Xxxxxx is unable or unwilling to act as
Custodian under the Custody Agreement, the undersigned hereby agrees to act as
custodian in accordance with the terms of the Custody Agreement as of the date
first written above.
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
In the event that Xxxxxx X. Xxxxxxxx is unable or unwilling to act as
Custodian under the Custody Agreement, the undersigned hereby agrees to act as
custodian in accordance with the terms of the Custody Agreement as of the date
first written above.
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.C.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
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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 by the
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
----------- --------- ---------------------------------------------- -------------------
NYU7730 4,150 Xxxxxx X. Xxxxx 4,150
NYU7786 3,000 Xxxxxx X. Xxxxx 3,000
NYU7709 350 Xxxxxx X. Xxxxx 350
NYU7695 99 Xxxxxx X. Xxxxx 99
NYU7541 5,000 Xxxxxx X. Xxxxx 5,000
NYU7497 5,000 Xxxxxx X. Xxxxx 5,000
NYU7556 20,200 Xxxxxx Xxxxx 20,200
NYU7217 5,000 Xxxxxx X. Xxxxx 5,000
NYU6509 20,000 Xxxxxx X. Xxxxx 20,000
NYU6970 10,000 Xxxxxx X. Xxxxx 10,000
NYU6981 10,000 Xxxxxx X. Xxxxx 10,000
NYU7494 10,000 Xxxxxx X. Xxxxx 10,000
NYU7495 10,000 Xxxxxx X. Xxxxx 10,000
NYU7499 5,000 Xxxxxx X. Xxxxx 5,000
NYU7500 5,000 Xxxxxx X. Xxxxx 5,000
NYU7501 5,000 Xxxxxx X. Xxxxx 5,000
NYU7761 55,798 Xxxxxx X. Xxxxx 55,798
NYU7618 630 Xxxxxxx X. Xxxxx 630
NJU833 18,264 Xxxxxxx X. Xxxxx 18,264
NYU7641 747 Xxxxxxx X. Xxxxx 747
NYU7780 21,500 Xxxxxxx X. Xxxxx 21,500
NYU7367 2,000 Xxxxxxx Xxxxx 2,000
NYU7387 200 Xxxxxxx X. Xxxxx 200
NYO12903 50 Xxxxxxx X. Xxxxx 50
NYO11407 25 Xxxxxxx Xxxxx 25
NYU7755 400 Xxxxxxx X. Xxxxx 400
NYU7753 600 Xxxxxxx X. Xxxxx 600
NYU7662 7,684 Xxxxxxx Xxxxx 7,684
NYU7675 2,316 Xxxxxxx X. Xxxxx 2,316
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SCHEDULE A (CONTINUED)
SCHEDULE OF CERTIFICATES
The Certificates representing shares of common stock of the Company being
delivered simultaneously with the execution of the Custody Agreement by the
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
----------- --------- ---------------------------------------------- -------------------
NYU7779 10,400 Xxxxxx Xxxx Xxxxx, Xx. 10,400
NYU7615 630 Xxxxxx Xxxx Xxxxx, Xx. 630
NYU7645 747 Xxxxxx Xxxx Xxxxx, Xx. 000
XXX0000 2,317 Xxxxxx Xxxx Xxxxx, Xx. 2,317
NYU7665 7,683 Xxxxxx Xxxx Xxxxx, Xx. 7,683
NYU7785 8,564 Xxxxxx Xxxxx Xx. 8,564
NYU7438 18,264 Xxxxxx Xxxxx 18,264
NYU7614 630 Xxxxxx X. Xxxxx 630
NYU7646 747 Xxxxxx X. Xxxxx 747
NYU7666 7,683 Xxxxxx X. Xxxxx 7,683
NYU7674 2,317 Xxxxxx X. Xxxxx 2,317
NYU7784 10,400 Xxxxxx Xxxxx 10,400
NYU5277 6,274 Xxxxxx Xxxxx 6,274
NYU5773 4,154 Xxxxxx Xxxxx 4,154
NYU7436 2,450 Xxxxxx Xxxxx 2,450
NYU7592 500 Xxxxxx Xxxxx 500
NYU7624 630 Xxxxxx Xxx Xxxxxxx 630
NYU7642 747 Xxxxxx Xxx Xxxxxxx 747
NYU7789 10,700 Xxxxxx Xxxxxxx 10,700
NYU7401 1,000 Xxxxxx Xxxxxx 1,000
NYU7398 1,000 Xxxxxx Xxxxxx 1,000
NYU7617 630 Xxxxxx Xxxxx 630
NYU7643 747 Xxxxxx Xxxxx 747
NYU7706 4,683 Xxxxxx Xxxxx 4,683
NYU7671 2,317 Xxxxxx Xxxxx 2,317
NYU7623 630 Xxxxxxx X. Xxxxx Trust FBO Xxxxxxx Xxxxx Xxxxx 630
NYU7655 747 Xxxxxxx X. Xxxxx Trust FBO Xxxxxxx Xxxxx Xxxxx 747
TBD 1,235 Xxxxxxx Xxxxx Xxxxx 1,235
21
SCHEDULE A (CONTINUED)
SCHEDULE OF CERTIFICATES
The Certificates representing shares of common stock of the Company being
delivered simultaneously with the execution of the Custody Agreement by the
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
----------- --------- ---------------------------------------------- -------------------
NYU7731 850 Xxxxxx Xxxxx Family Partnership, L.P. 850
NYU7688 850 Xxxxxx Xxxxx Family Partnership, L.P. 850
NYU7694 5,000 Xxxxxx Xxxxx Family Partnership, L.P. 5,000
NYU7693 5,000 Xxxxxx Xxxxx Family Partnership, L.P. 5,000
NYU7692 10,000 Xxxxxx Xxxxx Family Partnership, L.P. 10,000
NYU7691 10,000 Xxxxxx Xxxxx Family Partnership, L.P. 10,000
NYU7690 10,000 Xxxxxx Xxxxx Family Partnership, L.P. 10,000
NYU7689 150 Xxxxxx Xxxxx Family Partnership, L.P. 150
NYU7782 43,150 Xxxxxx Xxxxx Family Partnership, L.P. 43,150
22
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 by the
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
----------- --------- ---------------------------------------------- -------------------
Xxxxxxx X. Xxxxx 59,000
23
