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EXHIBIT 10.10
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
MISSOURI RED QUARRIES, INC.
SUPPLY AND DISTRIBUTION AGREEMENT
This Supply and Distribution Agreement made as of June 27, 1997 to be
effective on the 30th day of June, 1997, by and among MISSOURI RED QUARRIES,
INC., a Georgia corporation, with its principal office located at 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as
"Missouri Red"), XXXXXX X. XXXXXXX, XX. with an address of P. O. Xxx 0000,
Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Xxxxxxx") and ROCK OF AGES
CORPORATION, a Vermont corporation, with a principal office located at 000 Xxxxx
Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000 (hereinafter referred to as "Rock of
Ages").
RECITALS:
Missouri Red and Rock of Ages believe it is in their best long term
interests for Missouri Red to supply Rock of Ages with Missouri Red Granite
Blocks ("MRG") quarried by Missouri Red as required to meet Rock of Ages,
long-term requirements at prices agreed in advance, all upon the terms and
conditions as hereinafter set forth. In addition, Missouri Red wishes to provide
to Rock of Ages certain exclusive rights to sell MRG outside of North America
and the parties hereto wish to evidence other agreements among them, all upon
and in the terms and conditions as hereinafter set forth.
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which are herein acknowledged, the parties hereto agree as
follows:
1. PURCHASE AND SUPPLY OF MRG REQUIREMENTS. Missouri Red agrees to
supply Rock of Ages and its subsidiaries, affiliates and designees (hereinafter
in this agreement, the term "Rock of Ages" shall be deemed to include Rock of
Ages and its subsidiaries, affiliates and designees) with its requirements for
MRG for a term (herein the "Term") equal to the greater of: (a) 20 years; or
(b) the period of time while Missouri Red is owned to any extent by Xxxxxxx, his
spouse, his ancestors, his siblings and his descendants and any of their spouses
(all of said individuals being herein sometimes referred to as the "Xxxxxxx
Family"). Rock of Ages agrees to purchase a minimum of *** cubic feet of MRG
during each year of the Term and if in any *** (***) *** period Rock of Ages
does not purchase an aggregate of *** cubic feet of MRG, Missouri Red can
thereafter sell to other customers, subject to Rock of Ages' priority to
purchase MRG set forth in Section 3 of this agreement.
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
2. PRICE FOR MRG. The price to be charged by Missouri Red for MRG
supplied to Rock of Ages pursuant to Section 1 of this agreement shall be
initially fixed at *** ($***) per cubic foot, FOB quarry ("Initial Price"). The
Initial Price will be in force for *** (***) *** from the date of this
agreement. Missouri Red and Rock of Ages will negotiate an adjustment to the
Initial Price at the end of each successive *** (***) *** period during the
Term. The Initial Price and subsequent prices for MRG will be increased based on
the increased production costs of Missouri Red for MRG; provided, however, that
the price for each *** (***) *** period after the first *** (***) *** period
during the Term cannot increase by more than *** percent (***%) over the price
for the preceding *** (***) *** period. Missouri Red will invoice Rock of Ages
on the first day of each calendar month during the Term for all MRG shipped
during the previous month, which invoice shall be payable within thirty (30)
days during the first year of the Term and thereafter within sixty (60) days
from invoice date on a net basis.
3. ROCK OF AGES PRIORITY FOR MONUMENTAL GRADE MRG. Missouri Red agrees
that Rock of Ages will have first priority to purchase all monumental grade MRG
quarried by Missouri Red during the Term and only after Rock of Ages has
declined in writing to purchase any such monumental grade MRG will Missouri Red,
subject to Section 4 below, have the right to sell the same to third parties.
4. SALE OF MONUMENTAL GRADE MRG TO THIRD PARTIES. Missouri Red agrees
that all monumental grade MRG sold to third parties will be sold to them through
Rock of Ages, and Rock of Ages may make an invoicing and administration charge
of at least *** ($***) per cubic foot for its services on each such block of MRG
so sold by it. Rock of Ages agrees to honor Missouri Red's commitment to
Xxxxxxxx Quarries in Ada, Oklahoma.
5. ADVICE RE: NONMONUMENTAL SALES OF MRG. Missouri Red agrees to advise
Rock of Ages within ten (10) days after the end of each calendar quarter of all
sales of nonmonumental MRG to third parties. Information to be included in the
written advice of said sale will include the quantity of nonmonumental MRG sold,
the price charged, the shipping terms, and the name of the purchaser.
6. SIZE ALLOWANCE FOR MRG BLOCKS. Missouri Red agrees that all
monumental and nonmonumental blocks sold by it to Rock of Ages or sold by Rock
of Ages pursuant to the provisions of Section 4 of this agreement to third
parties will have size allowances of a minimum ******* on each dimension.
7. EXCLUSIVE SALE RIGHTS. Missouri Red hereby appoints Rock of Ages as
its exclusive distributor for monumental granites of MRG to buy and to sell all
grades of MRG in the territory comprised of all of the world. Any non-monumental
grade MRG sales to Eurimex
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
or to Japan will go through Rock of Ages in the same fashion as is set forth in
Section 4. The price to be charged by Missouri Red to Rock of Ages for MRG to be
sold and distributed by Rock of Ages pursuant to this exclusive distributorship
shall be the prices set forth in Exhibit 7 to this agreement for the first ***
(***) *** of the Term (the "Initial Outside Sale Price"). Missouri Red and Rock
of Ages will negotiate an adjustment to the Initial Outside Sale Price at the
end of each succeeding *** (***) *** period during the Term. The Initial Outside
Sale Price and subsequent prices will be increased based on the increased
production costs of Missouri Red for MRG; provided that the price for each ***
(***) *** period after the first *** (***) *** period during the Term cannot
increase by more than *** percent (***%) over the price for the preceding ***
(***) *** period. Missouri Red will invoice Rock of Ages on the first day of
each calendar month for MRG of any grade shipped to destinations outside of
North America during the previous month which invoice shall be payable within
thirty (30) days during the first year of the Term and thereafter within sixty
(60) days from invoice date on a net basis; provided, however that the price to
be charged to Eurimex and to customers in Japan for non- monumental MRG will be
negotiated between Missouri Red and Rock of Ages on a case by case basis.
8. RIGHT OF FIRST REFUSAL. In consideration of Rock of Ages acceptance
of its appointment as Missouri Red's exclusive sales distributor of MRG and of
the merger of Keystone Memorials, Inc., a Georgia corporation, into Rock of Ages
pursuant to an Agreement and Plan of Reorganization dated on or about the date
hereof to which Missouri Red is a party and the importance of the MRG to Rock of
Ages, Missouri Red hereby grants Rock of Ages a right of first refusal on any
sale or other disposition by it of any of its quarries, land, buildings, or
equipment and Xxxxxxx, the current owner of all of the outstanding capital stock
of Missouri Red, hereby grants to Rock of Ages, on his own behalf and on behalf
of the Xxxxxxx Family, a right of first refusal on any sale or other
disposition, other than a gift or transfer to a member of the Xxxxxxx Family or
to a trust for the benefit of a member of the Xxxxxxx Family by him or any
successor to him in ownership of said capital stock in the Xxxxxxx Family, of
all or any portion of the capital stock of Missouri Red. In the event of any
proposed bona fide sale or other disposition by Missouri Red or any member of
the Xxxxxxx Family of the assets or stock of Missouri Red which is subject to
this Section 8, they agree to give Rock of Ages written notice of the same
(hereinafter referred to as the "Rights Notice") and of the terms and conditions
of the proposed sale or other disposition. Rock of Ages will have ninety (90)
days after receipt of a Rights Notice to indicate in writing to the sender of
the Rights Notice (the "Sender") its exercise of its right of first refusal with
respect to the transaction described in the Rights Notice (the "Acceptance
Notice"). Within thirty (30) days of receipt of the Acceptance Notice, the
Sender will schedule a closing and notify Rock of Ages in writing thereof. At
the closing the stock or asset being sold by the Sender will be purchased by
Rock of Ages on the terms set forth in the Rights Notice and the Sender will
sell to Rock of Ages the stock or asset
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being sold free and clear of any rights, charges, encumbrances or liens so that
Rock of Ages will receive good and marketable title thereto at the closing.
Missouri Red agrees to execute an instrument in writing satisfactory to Rock of
Ages to record the existence of Rock of Ages' right of first refusal set forth
herein in each Registry of Deeds or other appropriate recording office for each
country and city in which Missouri Red owns real estate. Xxxxxxx will notify
Rock of Ages in writing of any disposition of Missouri Red capital stock not
subject to Rock of Ages right of first refusal set forth in this Section.
Xxxxxxx also agrees that a legend satisfactory to Rock of Ages shall be applied
to all Missouri Red capital stock certificates evidencing the right of first
refusal granted to Rock of Ages by Xxxxxxx so that all future holders thereof
will take and hold their shares of capital stock in Missouri Red subject to the
right of first refusal set forth herein.
9. COMPENSATION LIMITATIONS. In consideration of Rock of Ages'
agreements and obligations in this agreement, Missouri Red agrees that it will
not pay, directly or indirectly, Xxxxxxx or Xxxxxx X. Xxxxxxx, III, any salary,
bonus, expense reimbursement, or other compensation payment for services
rendered of any kind for any purpose without the prior written consent of Rock
of Ages.
10. ASSIGNMENT, SUCCESSORS AND ASSIGNS. This agreement is binding upon
and shall inure to the benefit of the parties hereto and their successors,
permitted assigns, heirs and personal representatives; provided, however, that
Missouri Red and Xxxxxxx, may not assign any of their rights, duties and
obligations under this agreement without the prior written consent of Rock of
Ages, but Rock of Ages may assign this agreement without limitation; provided,
however, that Rock of Ages will remain liable hereunder after any amount by it
of this agreement to a third party if Rock of Ages survives said assignment.
11. NOTICES. Any notice or other communication required or permitted
under this agreement shall be in writing and shall be deemed to have been duly
given (i) upon hand delivery, or (ii) on the third day following delivery to the
U.S. Postal Service as certified or registered mail, return receipt requested
and postage prepaid, or (iii) on the first day following delivery to a
nationally recognized United States overnight courier service, fee prepaid,
return receipt or other confirmation of delivery requested or (iv) when
telecopied or sent by facsimile transmission if an additional notice is also
given under (i), (ii) or (iii) above within three days thereafter. Any such
notice or communication shall be directed to a party at its address set forth
below or at such other address as may be designated by a party in a notice given
to all other parties hereto in accordance with the provisions of this Section.
If to Missouri Red: Missouri Red Quarries, Inc.
P. O. Xxx 0000
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Telecopy: (000) 000-0000
If to Xxxxxx X. Xxxxxxx, Xx.: Xx. Xxxxxx X. Xxxxxxx, Xx.
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P. O. Xxx 0000
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Telecopy: (000) 000-0000
with, in the case of notice R. Xxxxx Xxxxxx, Esq.
to Missouri Red and Xxxxxx & Xxxxxxxx
Xxxxxx X. Xxxxxxx, Xx., P. O. Drawer 1056
a copy to (which shall not Xxxxxxxx, XX 00000
constitute notice): Phone: 000-000-0000
Fax: 000-000-0000
If to Rock of Ages: Xxxx X. Xxxxxxx, Chairman and
Chief Executive Officer
Rock of Ages Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to: Xxxx X. Xxxxxx, Esq.
(which shall not Xxxxxx & Xxxxxx, P.A.
constitute notice) X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
12. SECTION HEADINGS. Section headings are employed in this agreement
for reference purposes only and shall not affect the interpretation or meaning
of this agreement.
13. COMPLETE AGREEMENT. Neither this agreement nor any provision hereof
may be changed, waived, modified, discharged, amended or terminated orally but
only by an instrument in writing signed by all parties hereto. The waiver by any
party hereto of a breach of any provision of this agreement shall not operate or
be construed as a waiver of any other or any subsequent breach. The failure of
any party at any time or times to require performance of any provision hereof
shall in no manner affect its right at a later time to enforce the same. This
agreement, together with the Exhibits attached hereto or incorporated herein
pursuant to Section 16 hereof, constitutes the only agreement among the parties
hereto concerning the subject matter hereof and supersedes all prior agreements,
whether written or oral, relating thereto.
14. GOVERNING LAW, JURISDICTION AND VENUE. This agreement shall be
governed by and construed in accordance with the laws of the State of New
Hampshire; and any actions brought pertaining to the same shall lie only in the
Merrimack County, New Hampshire Superior Court, in the United States District
Court for the District of New Hampshire, the Xxxxxx County
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Xxxxxxxx Xxxxx, Xxxxxxx, or the U.S. District Court for the Middle District of
Georgia, all of which courts are the sole and exclusive forums for any actions
or claims by the parties to this agreement; and each party hereto consents to
the jurisdiction of, and venue in, said courts in any action brought by another
party hereto and agrees that no claims or actions relating to any matter
hereunder will be brought by them in any other courts of said States, any other
state or any other country.
15. COUNTERPARTS. This agreement may be executed in counterparts and by
different parties on different counterparts with the same effect as if the
signatures were on the same instrument. This agreement shall be effective and
binding upon all parties hereto as of the time when all parties have executed a
counterpart of this agreement.
16. EXHIBITS. Each Exhibit or Schedule delivered pursuant to the terms
of this agreement shall be in writing and shall constitute a part of this
agreement. The parties may agree with respect to any Schedule or Exhibit
required to be attached to this agreement, that such Schedule or Exhibit, if
mutually satisfactory, may be attached to this agreement after the date of
execution hereof and after mutual approval thereof, such subsequently attached
Schedule or Exhibit shall be treated as if it were attached to this agreement as
of the date of execution of this agreement. All Exhibits and Schedules attached
hereto are specifically incorporated herein by reference and made a part hereof.
The words "agreement," "herein" and "hereof" as used herein shall in all
respects include the entirety of this agreement together with all Exhibits and
Schedules attached hereto and all documents required or permitted to be
delivered hereunder.
17. SPECIFIC PERFORMANCE. The parties hereto hereby agree and stipulate
it would be impossible to measure in monetary terms the damages which will be
suffered by the party bringing the action in the event of any breach by any of
them of any provision of this agreement. Therefore, if any party hereto should
institute any action in equity to enforce the provisions of this agreement, it
is hereby agreed by the other parties hereto, that they waive any claim or
defense that the party bringing the action has an adequate remedy at law and
agree that the party bringing the action is entitled to specific performance of
the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement all
as of the date first above written.
WITNESS ROCK OF AGES CORPORATION
/s/ By: /S/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx,
Chairman of the Board and
Chief Executive Officer
MISSOURI RED QUARRIES, INC.
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/s/ By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx., President
/s/ /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------- -------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
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EXHIBIT 7
TO
SUPPLY AND DISTRIBUTION AGREEMENT
The Initial Outside Sales Price will be negotiated on a case-by-case
basis by Missouri Red and Rock of Ages for all grades of MRG to be sold and
distributed pursuant to Rock of Ages' exclusive sale rights set forth in Section
7 and once negotiated will then be adjusted as set forth in Section 7.
