REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 1, 1998, by and
among NORTHLAND CRANBERRIES, INC., a Wisconsin corporation ("Northland"),
and Fargo Acquisition Corporation, a New Jersey corporation ("Company")
and Michael A. Morello, the sole shareholder of Company ("Morello").
RECITALS:
A. Pursuant to the Asset Purchase Agreement dated as of May 20,
1998 (the "Purchase Agreement") by and among Northland, Company and the
Shareholder, substantially all the assets and certain liabilities of
Company are being acquired by a wholly-owned subsidiary of Northland.
Capitalized defined terms used herein and not otherwise defined shall have
the meaning ascribed thereto in the Purchase Agreement.
B. Pursuant to the Purchase Agreement, as part of the consideration
for the assets of Company, the Company is entitled to receive, 136,986
shares ("Northland Shares") of Northland Class A Common Stock, $.0l par
value (collectively, "Northland Class A Common Stock"), delivered to the
Escrow Agent under the Escrow Agreement ("Escrow Stock").
C. It is contemplated that the Company may liquidate and dissolve
and may distribute to Morello the shares of Northland Stock received under
the Purchase Agreement (and its interests in the Northland Class A Common
Stock deposited in the escrow pursuant to the Escrow Agreement), all in
connection with the complete liquidation and dissolution of the Company.
The term "Shareholder" as used in this Agreement shall mean Company prior
to the distribution of the Northland Class A Common Stock to Morello and
shall mean Morello following such distribution by the Company.
D. Northland and the Shareholder desire to allow the Shareholder to
publicly sell the Northland Shares pursuant to certain registration
statements which may be filed by Northland under the Securities Act of
1933, as amended ("Act"), pursuant to the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
promises herein made and mutual benefits to be derived from this
Agreement, it is hereby agreed as follows:
1. Piggy Back Registration Rights.
(a) If, at any time during the period commencing on the
first anniversary date hereof and evidencing on the second anniversary
date hereof ("Second Anniversary Date"), Northland shall determine to
register shares of Northland Class A Common Stock under the Act for the
purpose of effecting an underwritten public offering thereof for cash,
Northland shall give written notice thereof to the Shareholder; provided,
however, that Northland shall not be required to give such notice to the
Shareholder if the proposed registration (i) is not to be made on
Securities and Exchange Commission ("Commission") Forms S-1, S-2 or S-3
(or the successors to such forms); and (ii) is (A) a registration of
securities other than Northland Class A Common Stock; (B) a registration
of a stock option, incentive compensation, profit sharing or other
employee benefit plan or of securities issued or issuable pursuant to any
such plan; or (C) a registration of securities proposed to be issued in
exchange for securities or assets of, or in connection with a merger,
share exchange, consolidation or other business combination involving,
another corporation or entity.
(b) Subject to paragraph (c) of this Section 1, upon
receiving any notice required under paragraph (a) of Section 1, if the
Shareholder desires to participate in a registration statement, then the
Shareholder shall provide written notice of such desire to Northland on
the form attached as Exhibit A ("Piggy Back Registration Request") within
10 days after the date of Northland's notice. Such Piggy Back Registration
Request shall be accompanied by (i) the Power of Attorney attached as
Exhibit B, duly executed by the Shareholder; (ii) the Letter of
Transmittal and Custody Agreement attached as Exhibit C, duly executed by
such Shareholder; (iii) the stock certificates representing the Northland
Shares requested to be registered by the Shareholder, accompanied by stock
powers duly executed in blank by or on behalf of the Shareholder; and (iv)
any other documents necessary to facilitate the Shareholder's
participation in such registration (collectively, "Registration
Documents"). Northland will use its best efforts to register all of the
Northland Shares requested to be registered by the Shareholder on such
Piggy Back Registration Request concurrently with the registration of
Northland Class A Common Stock by Northland on its own behalf and on the
same terms and conditions of offering and sale as contemplated and agreed
to by Northland ("Piggy Back Registration"). In the event the Shareholder
requests to participate in any Piggy Back Registration, the Shareholder
must sell the Northland Shares subject thereto on the same terms and
conditions of offering and sale (including, without limitation, purchase
price and underwriting discount per share, but excluding any differing
allocation agreed to by Northland with respect to any over-allotment
option granted) as agreed to by Northland in connection with its sale of
Northland Class A Common Stock thereunder.
(c) Northland shall not be required to include any
Northland Shares which have been requested to be registered by the
Shareholder in any Piggy Back Registration under this Section 1 if
Northland believes that, in its discretionary reasonable judgment, the
inclusion of Northland Shares proposed to be included by the Shareholder
would materially interfere with the timing, pricing or marketing of the
Northland Class A Common Stock being offered by Northland. Northland may,
in its discretionary judgment for any reason whatsoever and without the
consent the Shareholder, withdraw any such registration statement and
abandon any proposed Piggy Back Registration in which the Shareholder has
requested to participate.
2. Expenses. If the Shareholder participates in any Piggy Back
Registration the Shareholder shall pay (a) the expenses of any attorneys,
accountants or other advisors or professionals which the Shareholder
engages in connection with a sale of Northland Shares pursuant to any
Piggy Back Registration and (b) all underwriting or brokerage commissions
and discounts, if any, associated with the Northland Shares being sold by
the Shareholder pursuant to any Piggy Back Registration. Northland shall
pay all other costs and expenses incurred by it associated with any Piggy
Back Registration (including, without limitation, all legal and accounting
fees and expenses, printing costs and filing fees incurred by Northland).
3. Holdback Agreement: Further Cooperation; Confidentiality.
(a) By execution of this Agreement, the Shareholder hereby
agrees that, prior to the Second Anniversary Date, he will not offer, sell
or otherwise dispose of any Northland Shares owned by the Shareholder, in
the open market, during the period when he has knowledge that a Northland
registration statement (other than those, such as Form S-8 and Form S-4,
as to which notice need not be given to the Shareholder by Northland under
Section 1(a) hereof or nonunderwritten shelf offerings under Rule 415
under the Act and pursuant to which the Shareholder is not selling
Northland Shares) is contemplated or pending or within 90 days after the
effective date with the Commission of any such Northland registration
statement relating to a public offering or distribution of Northland Class
A Common Stock, other than as allowed under this Agreement.
(b) In connection with any Piggy Back Registration, the
Shareholder will furnish or cause to be furnished such further information
with respect thereto, and render such further cooperation, to Northland,
any underwriter and any broker-dealer as Northland, such underwriter or
broker-dealer may request. The Shareholder hereby agrees to execute and
enter into customary underwriting documents in connection therewith as are
requested by the managing underwriter of such offering or by Northland;
provided, however, that the Shareholder's obligations to indemnify any
persons in connection with such registration statement shall be limited to
the matters set forth in Section 4 of this Agreement, and, provided,
further that such documents shall include the indemnification of the
Shareholder by Northland provided for in Section 4 of this Agreement.
(c) Upon receiving any notice from Northland hereunder
respecting any contemplated or pending registration statement of Northland
and until public disclosures by Northland thereof, the Shareholder shall
strictly maintain the confidentiality of such contemplated or pending
registration statement and shall make no public disclosures or comments
with respect thereto.
4. Indemnification in Connection with Registration Statements.
In connection with any Piggy Back Registration in which the Shareholder
participates pursuant to this Agreement, the Shareholder shall indemnify
and hold harmless Northland and any underwriters of such offering and
their respective officers, directors and controlling persons from any and
all loss, liability, claims, damages and expenses (including reasonable
attorneys fees and disbursements) incurred by them insofar as such losses,
liabilities, claims, damages and expenses arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement or prospectus covering the
Northland Shares to be sold or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Shareholder shall only be liable in any such case to the
extent that any such loss arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with information relating to
the Shareholder as furnished to Northland or any underwriter by or on
behalf of the Shareholder expressly for use in the registration statement
or prospectus covering the Northland Shares to be sold. Except to the
extent set forth in the foregoing sentence, Northland shall indemnify and
hold the Shareholder harmless from any and all loss, liability, claims,
damages and expenses (including reasonable attorneys fees and
disbursements) incurred by Shareholder in connection with any Piggy Back
Registration, insofar as such losses, liabilities, claims, damages and
expenses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact furnished by Northland or the
underwriters for use in such registration statement or prospectus related
thereto or arise out of or are based upon the omission or alleged omission
to state therein a material fact pertaining to Northland or the
underwriters and required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were
made, not misleading.
5. Additional Matters.
(a) This Agreement shall be governed by and construed and
interpreted in accordance with the internal laws of the State of Wisconsin
applicable to contracts made and performed in Wisconsin, regardless of the
fact that individuals who are a party hereto may be or become a resident
of a state or jurisdiction other than Wisconsin.
(b) Except as otherwise provided in this Agreement, all
notices, requests, demands and other communications hereunder shall be
deemed to be duly given if delivered by hand or if mailed by certified or
registered mail with postage prepaid:
(i) If to Northland: to Northland Cranberries, Inc.,
800 First Avenue South, P.O. Box 8020, Wisconsin Rapids, Wisconsin
54495-8020, Attention: David J. Lukas (with a copy to: Steven R.
Barth, Esq., Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202).
(ii) If to the Shareholder: to Michael A. Morello,
3161 Silverwood Lane, Vineland, New Jersey 08361 (with a copy to:
John F. Bales III, Morgan, Lewis & Bockius LLP, 2000 One Logan
Square, Philadelphia, PA 19103-6993.
(iii) Any person entitled to receive notice
hereunder may change his address at which notice is to be received or
designated another person to receive notice by giving notice to all
other parties and persons entitled to receive notice in the manner
provided in this Section.
(c) Along with the Purchase Agreement and the Exhibits
thereto and the Escrow Agreement, this instrument embodies the entire
agreement between the parties hereto with respect to the transactions
contemplated herein, and supersedes all prior agreements and
understandings between the parties.
(d) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument. Executed
signature pages may be removed from counterpart agreements and attached to
one or more fully executed copies of this Agreement.
(e) Except as set forth below, this Agreement shall not be
assigned by the Shareholder without the written consent of Northland and
any attempted assignment without such consent shall be null and void and
without legal effect. This Agreement shall be binding upon and inure to
the benefit of the respective parties hereto, any successor and assign of
Northland and, if the consent required by this Section is properly
secured, the successors and assigns of the Shareholder. Upon any
assignment hereunder, the assignee shall become a "Shareholder" for all
purposes under this Agreement. Any assignment in violation of this Section
5(e) shall be null and void for all purposes and the party attempting to
effect such an assignment shall be jointly and severally liable for any
claims against or incurred by the nonassigning parties as a result of such
attempted assignment.
(f) Until the second anniversary hereof, provided Minot is
no longer an affiliate (as defined in Rule 144 of the Act) of Northland,
Northland will make available to Shareholder such information in its
possession as shall be necessary to enable Shareholder to make sales of
Northland Class A Common Stock under Rule 144. Northland will, at the
request of Shareholder, upon receipt therefrom of a certificate certifying
(a) that Shareholder has held such Northland Class A Common Stock for a
period of not less than two consecutive years and (b) that Minot has not
been an affiliate of Northland for more than 90 preceding days, remove
from the certificates representing such Northland Class A Common Stock
that portion of any restrictive legend which related to the registration
provision of the Act.
(g) The headings used in this Agreement are for
convenience only and shall not constitute a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly as of the day and year first above written.
NORTHLAND CRANBERRIES, INC.
("Northland")
By: /s/ John Swendrowski
John Swendrowski
Chairman of the Board and
Chief Executive Officer
MICHAEL A. MORELLO
("Shareholder")
By: /s/ Michael A. Morello
Michael A. Morello
Exhibit A
to
Registration Rights Agreement
PIGGY BACK REGISTRATION REQUEST FORM
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Northland Cranberries, Inc.
800 First Avenue South
P.O. Box 8020
Wisconsin Rapids, WI 54495-8020
Attention: David J. Lukas
Gentlemen and/or Ladies:
Reference is made to that certain Registration Rights Agreement,
dated as of July 1, 1998 ("Registration Rights Agreement"), by and among
Northland Cranberries, Inc. ("Company"), the undersigned and Minot Food
Packers, Inc. and to the notice dated ___________ of the Company to the
undersigned, receipt of which is hereby acknowledged, regarding the
proposed registration and public offering of shares of the Company's Class
A Common Stock (the registration, together with the related offering, the
"Offering"). The undersigned agrees to keep all mailers relating to the
offering strictly confidential.
The undersigned hereby (indicate choice by checking one box
only):
1. [ ] Requests, pursuant to Section l(b) of the Registration
Rights Agreement, the inclusion in the Offering of up to
__________ (fill in appropriate number of shares of Company
Class A Common Stock so requested for inclusion) shares of
Company Class A Common Stock held by the undersigned.
Accompanying the request are (i) the Power of Attorney
attached as Exhibit B to the Registration Rights Agreement,
duly executed by the undersigned; (ii) the Letter of
Transmittal and Custody Agreement attached as Exhibit C to
the Registration Rights Agreement, duly executed by the
undersigned (including the attached stock power) duly
executed by the undersigned; and (iii) the undersigned's
stock certificate(s) representing the shares of Company
Class A Common Stock requested to be included in the
Offering.
2. [ ] Does not request inclusion of the undersigned's shares of
Company Class A Common Stock in the offering.
Very truly yours,
Sign: ________________________
Name:_______________________
Date:________________________
Business Phone:________________
Home Phone:__________________
cc: Steven R. Barth
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
NORTHLAND CRANBERRIES, INC.
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto __________________ (________) shares of the Class A Common
Stock of Northland Cranberries, Inc., standing in my (our) name(s) on the
books of said Corporation represented by Certificate(s) No(s). ____
herewith, and does hereby irrevocably constitute and appoint Harris Trust
& Savings Bank attorney to transfer the said stock on the books of said
Corporation and full power of substitution in the premises.
Dated: ____________
Signature:
Name:
Exhibit B
to
Registration Rights Agreement
NORTHLAND CRANBERRIES, INC.
Common Stock
(par value $.01 per share)
POWER OF ATTORNEY OF SELLING SHAREHOLDER
The undersigned shareholder ("Shareholder") of Northland
Cranberries, Inc., a Wisconsin corporation (the "Company"), is a party to
a Registration Rights Agreement with the Company dated as of July 1, 1998
("Agreement") pursuant to which the Company has provided certain rights to
the Shareholder to publicly sell his shares of Class A Common Stock of the
Company received in connection with that certain Purchase Agreement by and
among the Company, Minot Food Packers, Inc., a New Jersey corporation, and
the Shareholder pursuant to certain registration statements which may be
filed by the Company under the Securities Act of 1993, as amended ("Act"),
subject to the terms of the Agreement. In order to facilitate the sale of
his Class A Common Stock under the terms of the Agreement, the Shareholder
is executing this Power of Attorney and is concurrently executing and
delivering a Letter of Transmittal and Custody Agreement ("Custody
Agreement") pursuant to which certificates for at least the number of
shares of Class A Common Stock set forth opposite the name of the
Shareholder on the signature page hereof are initially being deposited
with Harris Trust & Savings Bank to hold such certificates as custodian
("Custodian").
1. In connection with the foregoing, the Shareholder hereby
appoints [__________] and [__________], acting together and not alone, the
attorneys-in-fact (collectively, the "Attorneys-in-Fact" and individually,
an "Attorney-in-Fact") of the Shareholder with full power and authority in
the name of, and for and on behalf of, the Shareholder:
(a) to do all things necessary under the Agreement to sell
up to the number ("Maximum Number") of shares ("Shares") of Class A Common
Stock set forth opposite the name of the Shareholder on the signature page
hereof and represented by the certificates being deposited herewith by or
on behalf of the Shareholder with the Custodian;
(b) for the purpose of effecting such sales, to negotiate,
execute and deliver any underwriting agreement (and any amendment or
supplement thereto), among the Company, the Shareholder and any
underwriters which are a party thereto; provided, however, that the
Shareholder must sell Class A Common Stock included in any Piggy Back
Registration (as defined in the Agreement) on the same terms and
conditions of offering and sale (including, without limitation, purchase
price and underwriting discount per share, but excluding any differing
allocation agreed to by the Company with respect to any over allotment
option granted) as agreed to by the Company in connection with its sale of
common stock thereunder.
(c) to give such orders and instruments to Northland, any
underwriter, any broker-dealer or the Custodian or any other person as the
Attorneys-in-Fact, acting together and not alone, may determine,
including, without limitation, orders or instructions for the following:
(i) the transfer on the books of the Company of the Shares in order to
effect their sale (including the names in which new certificates for the
Shares are to be issued and the denominations thereof); (ii) the delivery
of the certificates for the Shares against receipt of the purchase price
therefor; (iii) the payment out of the proceeds of any sale of the Shares
to Northland or any underwriters of all commissions, fees and expenses as
are to be borne by the Shareholder in accordance with the terms of the
Agreement; (iv) the remittance of the net balance of the proceeds from any
sale of the Shares to be sold in accordance with such payment instructions
as the Attorneys-in-Fact may have received from the Shareholder; and (v)
the return to the Shareholder of new certificates representing the number
of shares of Class A Common Stock, if any, represented by certificates
deposited with the Custodian which are in excess of the number of Shares
actually sold;
(d) to join the Company, if necessary, in withdrawing any
registration statement if the Company should desire to withdraw such
registration;
(e) to retain legal counsel, accountants or other advisors
in connection with any and all matters referred to herein;
(f) to make, execute, acknowledge and deliver all other
contracts, orders, receipts, notices, requests, instructions,
certificates, letters and other writings, including communications to the
Commission (including a request or requests for acceleration of the
effective date of any registration statement) and state securities law
authorities, any amendments to any underwriting agreement, and any
certificates and other documents required to be delivered by or on behalf
of the Shareholder pursuant to the Agreement or any underwriting agreement
or the Custody Agreement, and specifically to execute on behalf of the
undersigned stock powers and transfer instructions relating to the Shares
to be sold by the undersigned Shareholder, and in general to do any and
all things and to take any and all actions which the Attorneys-in-Fact,
acting together and not alone, may consider necessary or proper in
connection with, or to carry out and comply with, all terms and conditions
of the Agreement or any underwriting agreement and the Custody Agreement
with respect to the aforesaid sale of Shares.
2. This Power of Attorney and all authority conferred hereby
are granted and conferred subject to the interests of the Company, any
underwriters, and any broker-dealer; and, in consideration of those
interests and for the purpose of completing the transactions contemplated
by the Agreement and this Power of Attorney, this Power of Attorney and
all authority conferred hereby, to the extent enforceable by law, shall be
deemed coupled with an interest and be irrevocable and not subject to
termination by the Shareholder or by operation of law, whether by the
death or incapacity of the Shareholder, or by the occurrence of any other
event, and the obligations of the Shareholder under the Agreement
similarly are not to be subject to termination. If the Shareholder should
die or become incapacitated or if any other such event should occur before
the delivery of the Shares to be sold by the Shareholder under the
Agreement, then the certificates representing such Shares shall be
delivered by or on behalf of the Shareholder in accordance with the terms
and conditions of the Agreement and any underwriting agreement and of the
Custody Agreement, and actions taken by the Attorneys-in-Fact, acting
together and not alone, pursuant to this Power of Attorney and by the
Custodian under the Custody Agreement shall be as valid as if such death,
incapacity, or other event had not occurred, regardless of whether or not
the Custodian, the Attorneys-in-Fact, acting together and not alone, shall
have received notice of such death or incapacity or other event.
3. The Shareholder ratifies all that the Attorneys-in-Fact
shall do by virtue of his Power of Attorney. All actions must be taken by
the Attorneys-in-Fact acting together and not alone.
4. The Shareholder agrees to hold the Attorneys-in-Fact,
jointly and severally, free and harmless from any and all loss, damage,
liability or expense incurred in connection herewith, including reasonable
attorney's fees and costs, which they, or either of them acting alone, may
sustain as a result of any action or inaction taken or not taken in good
faith hereunder.
Dated: ____________
Very truly yours,
Signature of Seller 1
Michael A. Morello
No. of Shares Requested
For Registration:
___________________
---------------
1 You should sign in exactly the same manner as the shares of Class A
Common Stock of the Company owned by you are registered and execute a
separate Agreement for each different form in which shares are registered.
Exhibit C
to
Registration Rights Agreement
NORTHLAND CRANBERRIES, INC.
Class A Common Stock
(par value $.0l per share)
LETTER OF TRANSMITTAL AND CUSTODY AGREEMENT
Harris Trust and Savings Bank
111 W. Monroe St.
P.O. Box 755
Chicago, IL 60690
Gentlemen:
Pursuant to the terms of the Registration Rights Agreement dated
as of July 1, 1998 ("Agreement"), the undersigned is concurrently herewith
requesting registration under the Securities Act of 1993, as amended
("Act"), of issued and outstanding shares of Class A Common Stock, par
value $.01 per share ("Class A Common Stock"), of Northland Cranberries,
Inc., a Wisconsin corporation ("Company"), owned by the undersigned
shareholder ("Seller") in the amount set forth on the signature page
hereto. In connection herewith, there are being delivered to you stock
certificates ("Certificates"), in negotiable form (together with stock
powers executed in blank in the form attached), representing such shares
of Class A Common Stock. These certificates are to be held by you as
Custodian for the account of the Seller and are to be disposed of by you
solely in accordance with this Letter of Transmittal and Custody Agreement
("Custody Agreement").
Concurrently with the execution and delivery of the Agreement,
the Seller executed a power of attorney ("Power of Attorney"), the form of
which has been furnished to you, to [__________] (individually an
"Attorney-in-Fact" and together the "Attorneys-in-Fact"), authorizing such
Attorneys-in-Fact, acting together and not alone, to sell from the number
of shares represented by the Certificates that number of shares ("Shares")
of the Class A Common Stock indicated below the signature of the Seller at
the end of this letter, or such lesser number as the Attorneys-in-Fact,
acting together and not alone, may determine, and for that purpose to
enter into any underwriting agreement ("Underwriting Agreement"), among
the Company, the underwriters named therein and the Seller.
You are hereby authorized and directed to hold the Certificates
deposited in your custody, and prior to any sale or other required time of
delivery for sale (each, a "Time of Delivery") of which you shall have
been given prior notice by or on behalf of the Company, any underwriter or
any broker-dealer, and upon the instructions of the Attorneys-in-Fact,
acting together and not alone, you are to instruct the transfer agent and
registrar for the Class A Common Stock to prepare and countersign a
certificate or certificates representing the Shares which are to be sold
by the Seller at such Time of Delivery registered in such names and
denominations as the Company, the underwriters or any broker-dealer shall
have instructed you. At each Time of Delivery you are, upon the
instructions of the Attorneys-in-Fact, acting together and not alone, (i)
to instruct the transfer agent and registrar for the Class A Common Stock
(A) to cause the Shares that are to be sold at such Time of Delivery to be
transferred upon the books of the Company into such names and in such
denominations as the Company, the underwriters or any broker-dealer shall
have instructed you, and (B) to deliver the Certificates against receipt
by such transfer agent and registrar from you of the Certificates (or a
portion thereof) deposited with you pursuant to this Custody Agreement;
(ii) to purchase all transfer tax stamps (if any) necessary in connection
with the transfer of such Shares as aforesaid; (iii) to deliver to such
transfer agent and registrar the Certificates (or a portion thereof)
against receipt of payment for such Shares; (iv) to give receipt for such
payment and to (a) remit to the Company, any underwriter or broker-dealer
a portion thereof equal to the amount payable by the Seller; and (b)
deposit the remainder of such payment to your account as Custodian; and
(v) after deducting such fees and expenses from the amount received by you
as payment for the Shares sold at such Time of Delivery to distribute the
balance in accordance with the payment instructions set forth below the
name of the Seller at the end of this Custody Agreement or such other
instructions you shall have received prior to such Time of Delivery by the
Attorneys-in-Fact. Upon instructions from the Attorneys-in-Fact you shall
return to the Seller new certificates (which you shall have obtained from
the transfer agent and which shall be accompanied by appropriate stock
powers), representing the number of shares of Class A Common Stock, if
any, represented by the Certificates deposited with you on behalf of the
Seller, which are in excess of the total number of Shares sold by the
Seller.
Under the terms of the Power of Attorney, the authority
conferred thereby is granted and conferred subject to the interests of the
Company, any underwriters, and any broker-dealer and, is, to the extent
enforceable by law, irrevocable and not subject to termination by the
Seller or by operation of law, whether by the death or incapacity of the
Seller, or by the occurrence of any other event, and the obligations of
the Seller under the Agreement similarly are not to be subject to
termination. Accordingly, the Shares represented by the certificates
deposited with you pursuant to this Custody Agreement and your authority
are subject to the interests of the Company, any underwriters, and any
broker-dealers, and this Custody Agreement and your authority hereunder
shall be, to the extent enforceable by law, irrevocable and not subject to
termination by the Seller or by operation of law, whether by the death or
incapacity of the Seller or by the occurrence of any other event. If the
Seller should die or become incapacitated or if any other such event
should occur, before the delivery of the Shares to be sold by the Seller
hereunder, then the certificates representing the Shares shall be
delivered by or on behalf of the Seller in accordance with the terms and
conditions of the Agreement and this Custody Agreement, and actions taken
by you hereunder or by the Attorneys-in-Fact, acting together and not
alone, pursuant to the Power of Attorney shall be as valid as if such
death, incapacity, or other event had not occurred, regardless of whether
or not you or the Attorneys-in-Fact, acting together and not alone, shall
have received notice of such death, incapacity, or other event.
Until delivery of the Shares to be sold by the Seller has been
made as herein and in the Agreement provided, the Seller shall, except as
otherwise specifically provided herein, have all the rights of ownership
of such Shares and all other shares, if any, represented by the
Certificates deposited on behalf of the Seller.
You shall be entitled to act and rely upon any statement,
request, notice or instruction respecting this Custody Agreement given to
you by the Attorneys-in-Fact, acting together and not alone.
It is understood that you assume no responsibility or liability
to any person other than to deal with the Certificates deposited and the
proceeds from the sale of the Shares represented thereby, all in
accordance with the provisions of this Custody Agreement, and the Seller
agrees to indemnify and hold you harmless with respect to anything done by
you in good faith in accordance with the foregoing instructions. It is
understood that your reasonable fees and expenses in acting hereunder will
be paid by the Company.
Please acknowledge your acceptance hereof as Custodian and
receipt of the Certificates deposited by executing and returning one of
the enclosed copies hereof to the undersigned.
Dated: ____________
Very truly yours,
Signature of Seller 1
Michael A. Morello
No. of Shares Requested
For Registration:
___________________
---------
1 You should sign in exactly the same manner as the shares of Class A
Common Stock of the Company owned by you are registered and execute a
separate Agreement for each different form in which shares are registered.
ACKNOWLEDGEMENT AND RECEIPT
Harris Trust and Savings Bank, as Custodian, acknowledges
acceptance of the duties of Custodian under the foregoing Letter of
Transmittal and Custody Agreement and receipt of the Certificates
representing the shares referred to therein.
Dated: ___________
HARRIS TRUST AND SAVINGS BANK
By:
Title:
Attest:
Title:
PAYMENT INSTRUCTIONS
The balance of funds held by the Custodian representing net
proceeds (after payment of expense) received upon the sale of Shares are
to be remitted in accordance with the provisions of this Letter of
Transmittal and Custody Agreement as follows (select one):
(a) Deposit to an account of Seller with the Custodian:
Account No._________________________________
Account Name________________________________
(b) Wire transfer to an account of Seller at another bank:
Bank Name Bank Address_______________________
_____________________________________________
(Attention of _________________________________)
Account No.__________________________________
Account Name_________________________________
(c) Mail official bank check available to the order of the
Seller) to:
Name _____________________________________
Address _____________________________________
(d) Other instructions: