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Exhibit 10.18
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(Name of Selling Stockholder)
CUSTODY AGREEMENT AND POWER OF ATTORNEY
for Sale of Common Stock of
ROCK OF AGES CORPORATION
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
AS ATTORNEYS-IN-FACT
c/o Rock of Ages Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Rock of Ages Corporation, a Delaware corporation (the
"Company"), the undersigned and certain other stockholders of Xxxxxxx Granite
Company, Inc., a New Hampshire corporation ("Xxxxxxx"), (the undersigned and
such other stockholders being hereinafter referred to as the "Selling
Stockholders") propose to sell certain shares of Common Stock, $.01 par value
per share, of the Company ("ROA Common Stock") to Xxxxxxx Xxxxx & Associates,
Inc. (the "Underwriter") for distribution under a Registration Statement on Form
S-1 (the "Registration Statement") to the public at a price and on terms to be
hereafter determined. It is understood that at this time there is no commitment
on the part of the Underwriter to purchase any shares of ROA Common Stock and no
assurance that an offering of ROA Common Stock will take place. The shares of
ROA Common Stock which the undersigned proposes to sell to the Underwriter
pursuant to the Underwriting Agreement hereinafter mentioned are referred to
herein as the "ROA Shares." The merger of Xxxxxxx with and into the Company,
with the Company as the surviving corporation (the "Merger"), is a condition
precedent to the sale of the ROA Shares to the Underwriter pursuant to the
Underwriting Agreement. The ROA Shares are to be issued to the undersigned
pursuant to the Merger in exchange for shares of the Common Stock, $10.00 par
value per share, of Xxxxxxx ("Xxxxxxx Common Stock") currently held by the
undersigned. The shares of Xxxxxxx Common Stock which are delivered by the
undersigned to the Company in exchange for the ROA Shares pursuant to the Merger
are referred to herein as the "Xxxxxxx Shares." As provided in the Underwriting
Agreement, the ROA Shares will constitute a portion of the "Firm Shares" and/or
"Additional Shares" to be sold pursuant to the Underwriting Agreement.
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1. Appointment and Powers of Attorneys-in-Fact.
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A. The undersigned hereby irrevocably constitutes and appoints
Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxxx (the "Attorneys-in-Fact"), and each of
them, as its, his or her agent and attorney-in-fact, with full power of
substitution, with respect to all matters arising in connection with the Merger
and the public offering and sale of the ROA Shares, including, but not limited
to, the power and authority on behalf of the undersigned to do or cause to be
done any of the following things:
(i) in connection with the Merger, deliver the
Xxxxxxx Shares and certificates representing them to the Company, including the
execution of stock powers and other instruments, and receive the ROA Shares and
certificates representing them in exchange therefor;
(ii) negotiate, determine and agree upon (a) the
price at which the ROA Shares will be initially offered to the public by the
Underwriter pursuant to the Underwriting Agreement, as hereinafter defined, (b)
the underwriting discount with respect to the ROA Shares, and (c) the price at
which the ROA Shares will be sold to the Underwriter by the undersigned pursuant
to the Underwriting Agreement;
(iii) prepare, execute and deliver an Underwriting
Agreement (the "Underwriting Agreement"), substantially in the form of the draft
dated __________, 1997, delivered to the undersigned herewith, receipt of which
is acknowledged, but with such insertions, changes, additions or deletions as
the Attorneys-in-Fact shall approve (which may include a decrease, but not an
increase, in the number of shares of ROA Common Stock to be sold by the
undersigned), such approval to be conclusively evidenced by the execution and
delivery of the Underwriting Agreement by an Attorney-in-Fact, including the
making of all representations and agreements provided in the Underwriting
Agreement to be made by, and the exercise of all authority thereunder vested in,
the undersigned;
(iv) sell, assign, transfer and deliver the ROA
Shares to the Underwriter pursuant to the Underwriting Agreement and deliver to
the Underwriter certificates for the ROA Shares so sold, including the execution
of stock powers and other instruments;
(v) to make, execute, acknowledge and deliver
all such other (a) contracts, orders, receipts, notices, requests,
instructions, certificates, letters and other writings, including, without
limitation, representations to the United States Securities and Exchange
Commission (the "SEC") concerning the reasons for the sale of the shares by the
undersigned, familiarity with the Registration Statement, and the absence of
material adverse information concerning the Company; (b) communications,
assurances and requests for acceleration of the effective date of the
Registration Statement to the SEC; (c) amendments to the Underwriting
Agreement; and (d) certificates to be delivered by the undersigned pursuant to
the Underwriting Agreement; and in general to do such other things and to take
such further action as the Attorneys-in-Fact, in their sole and absolute
discretion, may consider necessary or proper in connection with or to carry out
the contemplated sale of the ROA Shares to the Underwriter;
(vi) to make, execute, acknowledge, verify and
file on behalf of the undersigned, applications, consents to service of process
and such other undertakings or reports
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as may be required by law with the state commissions or officers administering
state securities laws, and, without limiting the generality of the foregoing, to
execute and file an application for qualification of the Shares and a consent to
the service of process on behalf of the undersigned pursuant to applicable
provisions of applicable law, as fully as could the undersigned if personally
present and acting.
(vii) instruct the Company and the Custodian, as
hereinafter defined, on all matters pertaining to the Merger and the sale of the
ROA Shares and delivery of certificates therefor;
(viii) provide, in accordance with the Underwriting
Agreement, for the payment of expenses of the offering and sale of the ROA
Common Stock covered by the Registration Statement;
(ix) otherwise take all actions and do all things
necessary or proper, required, contemplated or deemed advisable or desirable by
the Attorneys-in-Fact in their discretion, including the execution and delivery
of any documents, and generally act for and in the name of the undersigned with
respect to the Merger and the sale of the ROA Shares to the Underwriter and the
reoffering of the ROA Shares by the Underwriter as fully as could the
undersigned if then personally present and acting; and
(x) appoint a new Custodian if the Custodian is
unable to perform its obligations under this Custody Agreement and Power of
Attorney (the "Agreement"), including any amendment of this Agreement.
B. Each Attorney-in-Fact may act alone in exercising the
rights and powers conferred on the Attorneys-in-Fact by this Custody Agreement
and Power of Attorney, and the act of any Attorney-in-Fact shall be the act of
the Attorneys-in-Fact. Each Attorney-in-Fact is hereby empowered to determine,
in his or her sole and absolute discretion, the time or times when, the purposes
for which, and the manner in which, any power herein conferred upon the
Attorneys-in-Fact shall be exercised.
C. The Custodian, the Underwriter, the Company and all
other persons dealing with the Attorneys-in-Fact as such may rely and act upon
any writing believed in good faith to be signed by one or more of the
Attorneys-in-Fact.
D. The Attorneys-in-Fact shall not receive any
compensation for their services rendered hereunder.
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2. Appointment of Custodian; Deposit of Shares.
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A. In connection with and to facilitate the Merger and
the sale of the ROA Shares to the Underwriter, the undersigned hereby appoints
American Stock Transfer & Trust Company as custodian (the "Custodian") and
herewith deposits with the Custodian one or more certificates for Xxxxxxx Common
Stock which represent not less than the total number of Xxxxxxx Shares which
will be delivered by the undersigned in exchange for the number of ROA Shares to
be sold by the undersigned to the Underwriter, which numbers are set forth on
Schedule I hereto. Each such certificate so deposited is in negotiable and
proper deliverable form endorsed in blank with the signature of the undersigned
thereon guaranteed by an eligible guarantor institution which is a participant
in a Securities Transfer Association recognized program, including any
commercial bank or trust company in the United States or by a member firm of the
New York Stock Exchange that is such an eligible guarantor, or is accompanied by
a duly executed stock power or powers in blank, bearing the signature of the
undersigned so guaranteed. The Custodian is hereby authorized and directed,
subject to the instructions of the Attorneys-in-Fact, (a) to hold in custody the
certificate or certificates deposited herewith and the certificates received in
exchange therefor pursuant to the Merger (or replacement certificates therefor),
(b) to deliver the certificate or certificates deposited hereunder (or
replacement certificate(s) therefor) to or at the direction of the
Attorneys-in-Fact for delivery to the Company in accordance with the terms of
the Merger, (c) to deliver the certificate or certificates received in
connection with the Merger (or replacement certificate(s) therefor) to or at the
direction of the Attorneys-in-Fact in accordance with the terms of the
Underwriting Agreement and (d) to return to the undersigned new certificate(s)
for the shares of ROA Common Stock represented by any certificate received in
connection with the Merger which are not sold pursuant to the Underwriting
Agreement.
B. Until the Xxxxxxx Shares have been delivered to the
Company in exchange for the ROA Shares in accordance with the Merger, the
undersigned shall retain all rights of ownership with respect to the Xxxxxxx
Shares deposited hereunder, including the right to vote and to receive all
dividends and payment thereon, except the right to retain custody of or dispose
of such Xxxxxxx Shares, which right is subject to this Agreement. Until the
Shares have been delivered to the Underwriter against payment therefor in
accordance with the Underwriting Agreement, the undersigned shall retain all
rights of ownership with respect to the ROA Shares deposited hereunder,
including the right to vote and to receive all dividends and payment thereon,
except the right to retain custody of or dispose of such ROA Shares, which right
is subject to this Agreement and the Underwriting Agreement.
C. If a controversy arises between two or more of the
Selling Stockholders, or between any of the Selling Stockholders and any other
person, as to whether or not or to whom the Custodian shall deliver the
certificates for the ROA Shares or the Xxxxxxx Shares or any funds held by it,
or as to any other matter arising out of or relating hereto or to the property
held by the Custodian hereunder or as to the interpretation of this Agreement
regarding the duties or obligations of the Custodian hereunder, the Custodian
shall not be required to determine the same and need not make any delivery of
the property or any portion thereof but may retain it, subject to the provisions
of Section 6.B., below, until the rights of the parties to the dispute shall
have finally been determined by agreement or by final order of a court of
competent jurisdiction; provided, however, that the time for appeal for any such
final order shall
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have expired without an appeal having been made. The Custodian shall deliver the
property or any portion thereof within 15 days after it has received written
notice of any such agreement or final order (accompanied by an affidavit that
the time for appeal has expired without an appeal having been made) in
accordance with the terms of the final agreement or order. The Custodian shall
be entitled to assume that no such controversy has arisen unless it has received
a written notice that such a controversy has arisen which refers specifically to
this Agreement and identifies by name and address the adverse claimants to the
controversy.
D. The Custodian will acknowledge in writing to the
undersigned receipt by physical delivery of any certificates representing the
undersigned's ROA Shares or Xxxxxxx Shares, as the case may be, when such
certificates are received.
3. MERGER. The Attorneys-in-Fact are hereby authorized and
directed to deliver or cause the Custodian to deliver certificates for the
Xxxxxxx Shares to the Company, pursuant to the Merger, against delivery to the
Attorneys-in-Fact for the account of the undersigned of the certificates
representing the ROA Shares. The Attorneys-in-Fact are authorized, on behalf of
the undersigned, to accept and acknowledge receipt of the certificates
representing the ROA Shares and shall promptly deposit such certificates with
the Custodian.
4. Sale of Shares; Remitting Net Proceeds.
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A. The Attorneys-in-Fact are hereby authorized and
directed to deliver or cause the Custodian to deliver certificates for the ROA
Shares to the Underwriter, as provided in the Underwriting Agreement, against
delivery to the Attorneys-in-Fact for the account of the undersigned of the
purchase price of the ROA Shares, which purchase price shall be net of
underwriting discounts and commissions, at the time and in the funds specified
in the Underwriting Agreement. The Attorneys-in-Fact are authorized, on behalf
of the undersigned, to accept and acknowledge receipt of the payment of such
purchase price for the ROA Shares and shall promptly deposit such proceeds with
the Custodian or such other bank or financial institution designated by the
undersigned. After receiving payment for expenses as provided below, the
Custodian shall promptly remit to the undersigned its, his or her share of the
proceeds.
B. Before any proceeds of the sale of the ROA Shares are
remitted to the undersigned, the Company shall have paid to the Custodian and
the Attorneys-in-Fact amounts equal to the undersigned's proportionate share of
all of their respective fees and expenses for the performance of their
obligations under this Agreement. After payment of such fees and expenses by the
Company, the Custodian will remit to the undersigned the purchase price for the
ROA Shares.
5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The undersigned
represents and warrants to, and agrees with, the other Selling Stockholders, the
Company, the Attorneys-in-Fact and the Custodian as follows:
A. The undersigned has full legal right, power and
authority to enter into and perform this Agreement. The undersigned agrees to
deliver to the Attorneys-in-Fact such additional documentation as the
Attorneys-in-Fact, or either of them, or the Company, the
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Custodian or any of their respective counsel may request to effectuate or
confirm compliance with any of the provisions hereof or of the Underwriting
Agreement. If the undersigned is acting as a fiduciary, officer, partner or
agent, the undersigned is enclosing with this Agreement certified copies of the
appropriate instruments pursuant to which the undersigned is authorized to act
hereunder. If the undersigned is an individual and is married, the undersigned
is enclosing with this Agreement a duly completed and executed consent of his or
her spouse, in the form attached to this Agreement as Annex A.
B. The undersigned will promptly notify the
Attorneys-in-Fact of any development that would make any representation and
warranty to be made by the undersigned as a Selling Stockholder contained in the
Underwriting Agreement untrue.
C. The undersigned has reviewed the Registration
Statement, including the preliminary prospectus included therein, and (i) the
undersigned has no knowledge of any material adverse information with regard to
the current and prospective operations of the Company or its subsidiaries except
as disclosed in such preliminary prospectus, (ii) the information contained in
such preliminary prospectus with respect to the undersigned is true and correct,
and (iii) to the best of the knowledge and belief of the undersigned, such
preliminary prospectus does not contain any misstatement of a material fact or
omit to state any material fact required to be stated therein or any information
necessary to make the statements therein not misleading.
D. The undersigned is not directly or indirectly an
affiliate of or associated with any member of the National Association of
Securities Dealers, Inc.
E. The undersigned will not sell, offer to sell, solicit
an offer to buy, contract to sell, grant any option to purchase or otherwise
transfer or dispose of any shares of ROA Common Stock or Xxxxxxx Common Stock,
or any securities convertible into or exercisable or exchangeable for shares of
ROA Common Stock or Xxxxxxx Common Stock, for a period of 180 days after the
date of the Prospectus (as defined in the Underwriting Agreement), except as
permitted by Section 2 of the Underwriting Agreement.
F. The undersigned agrees to deliver to the
Attorneys-in-Fact such documentation as the Attorneys-in-Fact, the Company or
the Selling Stockholders or any of their respective counsel may reasonably
request in order to effectuate any of the provisions hereof or of the
Underwriting Agreement, all of the foregoing to be in form and substance
satisfactory in all respects to the Attorneys-in-Fact.
G. The undersigned has, and at the time of delivery of
the Xxxxxxx Shares pursuant to the Merger (the "Merger Date") will have, valid,
marketable title to the Xxxxxxx Shares, and will have on the Merger Date full
legal right and power to sell, transfer and deliver such Xxxxxxx Shares, and all
authorizations and approvals required by law with respect thereto and with
respect to the undersigned's right and power to make the representations and
warranties set forth herein and in the Underwriting Agreement will have been
obtained; and upon delivery of the Xxxxxxx Shares in exchange for the ROA
Shares, the undersigned will have valid, marketable title thereto, free and
clear of all liens, security interests, encumbrances, equities and claims
whatsoever.
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H. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof will not result in a
breach of any of the terms or provisions of, or constitute a default under, any
agreement, indenture or other instrument to which the undersigned is a party or
by which the undersigned is bound, or any statute or ruling, decree, judgment,
order or regulation now in effect of any governmental authority having
jurisdiction over the undersigned or its, his or her property.
I. The undersigned has not taken and will not take,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the ROA Common
Stock pursuant to the distribution contemplated by the Underwriting Agreement;
and, other than as permitted under the Act, the undersigned has not and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares.
J. Until payment in full for the Shares has been
received by the Attorneys-in-Fact from the Underwriter, or until the
Underwriting Agreement or this Agreement have been terminated, the undersigned
agrees and acknowledges that the undersigned will not have the right or power to
sell, transfer, pledge, hypothecate, grant liens on, deal with or contract with
respect to, the ROA Shares, the Xxxxxxx Shares or any interest therein.
K. When the Registration Statement covering the ROA
Shares becomes effective, the parts thereof that provide information
specifically relating to the undersigned will not contain any untrue statement
of material fact or omit to state any material fact required to be stated
therein or any information necessary to make the statements therein not
misleading. For purposes of rendering any opinion pursuant to the Underwriting
Agreement, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP ("Xxxxxxx Xxxx") may rely on
the certifications, representations, warranties and statements of the
undersigned set forth in this Agreement or in any other document delivered by or
on behalf of the undersigned in connection with the registration or sale of the
ROA Shares, as if such certifications, representations, warranties and
statements were set forth in a separate certificate directed to Xxxxxxx Xxxx at
and as of the Closing Date. The foregoing representations, warranties and
agreements are made for the benefit of, and may be relied upon by, the other
Selling Stockholders, the Attorneys-in-Fact, the Company, the Custodian and
their respective representatives, agents and counsel and are in addition to, and
not in limitation of, the representations, warranties and agreements of the
Selling Stockholders in the Underwriting Agreement.
6. Irrevocability of Instruments; Termination of this Agreement.
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A. This Agreement, the deposit of the ROA Shares and the
Xxxxxxx Shares pursuant hereto and all authority hereby conferred, is granted,
made and conferred subject to and in consideration of (i) the interests of the
Attorneys-in-Fact, the Underwriter, the Company and the other Selling
Stockholders who may become parties to the Underwriting Agreement in and for the
purpose of completing the transactions contemplated hereunder and by the
Underwriting Agreement and (ii) the completion of the registration of ROA Common
Stock pursuant to the Registration Statement, the Merger and the other acts of
the above-mentioned parties from the date hereof to and including the execution
and delivery of the Underwriting Agreement in anticipation of the sale of ROA
Common Stock, including the ROA Shares, to the
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Underwriter; and the Attorneys-in-Fact are hereby further vested with an estate,
right, title and interest in and to the ROA Shares and the Xxxxxxx Shares
deposited herewith for the purpose of irrevocably empowering and securing to
them authority sufficient to consummate said transactions. Accordingly, this
Agreement shall be irrevocable and shall remain in full force and effect unless
the Underwriter (i) terminates the Underwriting Agreement prior to the closing
of the sale of ROA Shares on the Closing Date, or (ii) does not purchase the
Firm Shares prior to December 31, 1997. The undersigned further agrees that this
Agreement shall not be terminated by operation of law or upon the occurrence of
any event whatsoever, including the death, disability or incompetence of the
undersigned or any other Selling Stockholder or, if the undersigned or any other
Selling Stockholder is not a natural person, upon any dissolution, winding up,
distribution of assets or other event affecting the legal existence of the
undersigned or such Selling Stockholder. If any event referred to in the
preceding sentence shall occur, whether with or without notice thereof to the
Attorneys-in-Fact, the Underwriter or any other person, the Attorneys-in-Fact
shall nevertheless be authorized and empowered to deliver and deal with the ROA
Shares and the Xxxxxxx Shares deposited under this Agreement in accordance with
the terms and provisions of the Underwriting Agreement and this Agreement as if
such event had not occurred.
B. If the sale of the Firm Shares contemplated by the
Underwriting Agreement is not completed by December 31, 1997, this Agreement
shall terminate (without affecting any lawful action of the Attorneys-in-Fact or
the Custodian prior to such termination), and the Attorneys-in-Fact shall cause
the Custodian to return to the undersigned all certificates for the ROA Shares
or the Xxxxxxx shares, as the case may be, deposited hereunder, but only after
the Custodian and the Attorneys-in-Fact have received payment of the
undersigned's proportionate share of all of their respective fees and expenses
for the performance of their obligations hereunder.
7. LIABILITY AND INDEMNIFICATION OF THE ATTORNEYS-IN-FACT AND
CUSTODIAN. The Attorneys-in-Fact and the Custodian assume no responsibility or
liability to the undersigned or to any other person, other than to deal with the
ROA Shares, the Xxxxxxx Shares, the proceeds from the sale of the ROA Shares and
any other shares of ROA Common Stock or Xxxxxxx Common Stock deposited with the
Custodian pursuant to the terms of this Agreement in accordance with the
provisions hereof. The undersigned hereby agrees to indemnify and hold harmless
the Attorneys-in-Fact and the Custodian, and their respective officers, agents,
successors, assigns and personal representatives with respect to any act or
omission of or by any of them in good faith in connection with any and all
matters contemplated by this Agreement or the Underwriting Agreement.
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8. Interpretation.
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A. The representations, warranties and agreements of the
undersigned contained herein shall survive the sale and delivery of the ROA
Shares and the termination of this Agreement.
B. The validity, enforceability, interpretation and
construction of this Agreement shall be determined in accordance with the laws
of the State of Massachusetts applicable to contracts made and to be performed
within the State of Florida and this Agreement shall inure to the benefit of,
and be binding upon, the undersigned and the undersigned's heirs, executors,
administrators, successors and assigns, as the case may be.
C. Wherever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any such provision shall be prohibited by or invalid
under applicable law, it shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
D. The use of the masculine gender in this Agreement
includes the feminine and neuter, and the use of the singular includes the
plural, wherever appropriate.
IN WITNESS WHEREOF, the undersigned has executed this Custody
Agreement and Power of Attorney this ___ day of _________, 1997.
Selling Stockholder
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Signature of Selling Stockholder (Please sign exactly as your name appears on
Guaranteed by: your stock certificate(s).)
Name and address to which notices and funds
shall be sent.
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(NAME)
--------------------------------------------
(STREET)
--------------------------------------------
(CITY) (STATE) (ZIP)
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(NOTE: The signature must be guaranteed by a commercial bank or trust company in
the United States or by a member firm of the New York Stock Exchange or other
eligible guarantor institution which is a participant in a Securities Transfer
Association recognized program.)
ACCEPTED by the Attorneys-in-Fact
as of the date above set forth:
ACCEPTED by the Custodian
as of the date above set forth:~
_____________________________ AMERICAN STOCK TRANSFER & TRUST
[Attorney-in-Fact] COMPANY
_____________________________ By:
[Attorney-in-Fact] Name:
Title:
SEE THE ATTACHED INSTRUCTIONS
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INSTRUCTIONS
(For completing the Custody Agreement and Power of Attorney)
A. You have been sent six copies of the Custody
Agreement and Power of Attorney (the "Agreement"). Please complete and return
five copies of the Agreement and stock certificate(s) as set forth in paragraph
D below. A fully executed copy of the Agreement will be returned to you; a fully
executed copy of the Agreement and your stock certificate(s) will be retained by
the Custodian; and a fully executed copy of the Agreement will be delivered to
the Attorneys-in-Fact and to the Underwriter and the Company.
B. Complete Schedule I attached hereto.
C. Each copy of the Agreement and each stock certificate
or stock power deposited hereunder must be executed by you with your signature
on the Agreement and the stock certificate(s) or the accompanying stock power
guaranteed by a commercial bank or trust company in the United States or any
broker which is a member firm of the New York Stock Exchange or other eligible
guarantor institution which is a participant in a Securities Transfer
Association recognized program. Please sign the stock certificate(s) or stock
power and the Agreement exactly as your name appears on your stock
certificate(s).
D. Endorsed stock certificate(s) or stock certificate(s)
with stock powers attached along with all five executed copies of the completed
Agreement should be promptly returned by hand delivery or by certified mail
appropriately insured to:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
If sent through the mail, it is recommended that the certificate(s) not be
endorsed, but an executed stock power be sent under separate cover from the
certificate(s).
E. If any certificate that you submit represents a
greater number of Xxxxxxx Shares than the number of Xxxxxxx Shares that
corresponds to the number of ROA Shares which you agree to sell pursuant to the
Underwriting Agreement [(including any Additional Shares which you agree to
sell)], the Custodian will cause to be delivered to you in due course, but not
earlier than ten days after the closing for the purchase of Firm Shares by the
Underwriter [(or ten days after the final closing for Additional Shares, if the
ROA Shares are subject to the Underwriter's overallotment option)], a
certificate for the excess number of shares of ROA Common Stock.
F. Please contact Rock of Ages Corporation and Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP at the respective addresses and to the attention
of the appropriate persons as set forth in Section 14 of the Underwriting
Agreement, if any information or representation included in the foregoing
Agreement or the Underwriting Agreement should change, or if you
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become aware of any new information, at any time prior to termination of the
period referred to in Section 12 of the Underwriting Agreement.
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(Name of Selling Stockholder)
SCHEDULE I
Certificate(s) for Shares of Common Stock of
XXXXXXX GRANITE COMPANY, INC.
deposited under
Custody Agreement and Power of Attorney
Number of Shares of
Number of Shares of Xxxxxxx Xxxxxxx Common Stock
Certificate Common Stock Represented from this Certificate To
Number by Certificate Be Sold*
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Total: ___________________
*If fewer than all shares represented by a certificate are to be sold, indicate
below, if desired for income tax purposes, the date of purchase or purchase
price of the particular shares to be sold.
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ANNEX A
Instruction: See Section 4, paragraph A, of the CUSTODY AGREEMENT AND POWER OF
ATTORNEY.
CONSENT OF SPOUSE
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I am the spouse of ___________________. On behalf of myself,
my heirs, legatees, and assigns, I hereby join in and consent to the terms of
the foregoing Custody Agreement and Power of Attorney and agree to the sale of
the shares of Common Stock of Rock of Ages Corporation, to be issued pursuant to
the Merger referred to in the Custody Agreement and Power of Attorney in
exchange for Common Stock of Xxxxxxx Granite Company, Inc. registered in the
name of my spouse or otherwise registered, which my spouse proposes to sell, or
to agree to sell, pursuant to the Underwriting Agreement referred to in the
Custody Agreement and Power of Attorney.
Dated: ____________, 1997
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(Signature of Spouse)
Print Name:
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