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Exhibit 2.4
AGREEMENT AND PLAN OF MERGER AND
REORGANIZATION
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION dated as of
August 13, 1997 by and among Rock of Ages Corporation, a Delaware corporation
("Rock of Ages"), Xxxxxxx Granite Company, Inc., a New Hampshire corporation and
owner of 93% of the outstanding capital stock of Rock of Ages ("Xxxxxxx
Granite"), and Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx, each of whom own 30.3% of
the outstanding capital stock of Xxxxxxx Granite (collectively, the "Xxxxxxx
Shareholders").
WHEREAS, the parties hereto desire to set forth the terms and
conditions whereby Xxxxxxx Granite will merge (the "Merger") with and into Rock
of Ages, with Rock of Ages as the surviving corporation (the "Surviving
Corporation"), as part of a reorganization of Rock of Ages and Xxxxxxx Granite
(the "Reorganization") in order to facilitate, and which will occur immediately
prior to consummation of, an initial public offering by Rock of Ages of its
Class A Common Stock, par value $.01 per share (the "IPO"); and
WHEREAS, as part of the Reorganization and immediately prior
to the Effective Time (as defined herein) of the Merger, Xxxxxxx Granite will
effect, through a series of transactions, a pro rata distribution to its
shareholders of equity interests representing ownership of substantially all of
the assets and business of Xxxxxxx Granite, other than Xxxxxxx Granite's stock
interest in Rock of Ages (the "Distribution"); and
WHEREAS, the Board of Directors of each of Xxxxxxx Granite and
Rock of Ages, and Xxxxxxx Granite, as a shareholder of Rock of Ages, has
determined that the Merger is advisable and in the best interests of their
respective corporations and shareholders; and
WHEREAS, the Xxxxxxx Shareholders hold shares of capital stock
of Xxxxxxx Granite representing a majority of the voting power of all
outstanding voting securities of Xxxxxxx Granite, and, accordingly, can approve
this Agreement in their capacity as shareholders of Xxxxxxx Granite without the
vote of any other Xxxxxxx Granite shareholder and can cause Xxxxxxx Granite to
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approve and adopt this Agreement in its capacity as a stockholder of Rock of
Ages without the vote of any other Rock of Ages stockholder;
NOW THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
below, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Subject to the terms and conditions of
this Agreement, at the Effective Time, Xxxxxxx Granite shall merge with and into
Rock of Ages in accordance with the General Corporation Law of the State of
Delaware (the "DGCL") and the New Hampshire Business Corporation Act (the "NH
Law"), the separate corporate existence of Xxxxxxx Granite shall cease and Rock
of Ages shall continue as the Surviving Corporation.
Section 1.2 Consummation of the Merger. In order to effectuate
the Merger, immediately upon satisfaction of all of the conditions set forth
in Article VII hereof, Xxxxxxx Granite and Rock of Ages shall cause (i) a
certificate of merger (the "Certificate of Merger") to be filed with the
Secretary of State of the State of Delaware and (ii) articles of merger
("Articles of Merger") to be filed with the Secretary of State of the State of
New Hampshire, each in such form as required by, and executed in accordance
with, the DGCL and NH Law, respectively. The Merger shall be effective as of
the later of the time of the filing of the Certificate of Merger or Articles of
Merger (the "Effective Time").
Section 1.3 Effects of Merger. The Merger shall have the
effects provided for in Section 259 of the DGCL and Section 11.06 of the NH Law.
Section 1.4 Governing Documents. The Certificate of
Incorporation of Rock of Ages, as in effect immediately prior the Effective
Time, shall be the Certificate of Incorporation of the Surviving Corporation
without change or amendment, and the By-Laws of Rock of Ages, as in effect
immediately prior the Effective Time,
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shall be the By-Laws of the Surviving Corporation without change or amendment.
Section 1.5 Officers and Directors. The persons who are
officers and directors of Rock of Ages immediately prior to the Effective Time
shall, after the Effective Time, be the officers and directors of the Surviving
Corporation, without change until their successors have been duly elected and
qualified in accordance with the Certificate of Incorporation and By-Laws of the
Surviving Corporation.
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1 Conversion of Xxxxxxx Granite Shares. Subject to
Sections 2.4 and 2.6, at the Effective Time, by virtue of the Merger and without
any action on the part of the holders thereof, each issued and outstanding share
of common stock, par value $10.00 per share ("Xxxxxxx Granite Common Stock"), of
Xxxxxxx Granite shall be changed and converted into 1,618.123 fully paid and
nonassessable shares of Class B Common Stock, par value $.01 per share, of Rock
of Ages ("Class B Common Stock"); provided, however, that in lieu of fractional
shares of Class B Common Stock that would otherwise be issued, each such holder
that would have been entitled to receive a fractional share of Class B Common
Stock shall receive such whole number of shares of Class B Common Stock as is
equal to the precise number of shares of Class B Common Stock to which such
shareholder would be entitled, with a fractional interest of .5 or above rounded
up to the nearest whole number and a fractional interest of less than .5 rounded
down to the nearest whole number.
Section 2.2 Cancellation of Treasury Stock and Xxxxxxx
Granite-Owned Stock. At the Effective Time, by virtue of the Merger and without
any action on the part of Xxxxxxx Granite, all shares of Xxxxxxx Granite Common
Stock that are owned by Xxxxxxx Granite as treasury stock and all shares of
Class B Common Stock owned by Xxxxxxx Granite shall be cancelled and retired and
shall cease to exist, and no stock of Rock of Ages or other consideration shall
be delivered in exchange therefor.
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Section 2.3 Missouri Red-Owned Stock. All shares of Class B
Common Stock owned by Missouri Red Quarries, Inc. shall be unaffected by the
Merger and shall remain issued and outstanding.
Section 2.4 Stock Certificates. At and after the Effective
Time, all of the outstanding certificates which immediately prior to the
Effective Time represented shares of Xxxxxxx Granite Common Stock ("Xxxxxxx
Granite Certificates"), other than Xxxxxxx Granite Certificates representing
Dissenting Shares (as defined herein), shall be deemed for all purposes to
evidence ownership of and to represent the shares of Class B Common Stock into
which the shares of Xxxxxxx Granite Common Stock formerly represented by such
Xxxxxxx Granite Certificates have been converted as herein provided. At and
after the Effective Time, upon surrender to Rock of Ages of a Xxxxxxx Granite
Certificate (other than Xxxxxxx Granite Certificates representing Dissenting
Shares), together with a letter to Rock of Ages executed by the record holder
setting forth representations of such holder substantially in the form set forth
in Sections 5.2 - 5.6 hereof, the Surviving Corporation shall issue to the
record holder of such Xxxxxxx Granite Certificate so surrendered, a certificate
or certificates representing the shares of Class B Common Stock into which such
holder's Xxxxxxx Granite Common Stock formerly represented by such Xxxxxxx
Granite Certificate have been converted pursuant to Section 2.1 hereof.
Section 2.5 Closing of Stock Transfer Books. The stock
transfer books of Xxxxxxx Granite shall be closed as of the Effective Time, and
thereafter there shall be no further registration of transfers on the stock
transfer books of Xxxxxxx Granite or the Surviving Corporation of the shares of
Xxxxxxx Granite Common Stock which were outstanding immediately prior to such
time. If, after the Effective Time, Xxxxxxx Granite Certificates are presented
to the Surviving Corporation for any reason, they shall be cancelled and
exchanged as provided in Section 2.4.
Section 2.6 Dissenting Shares. Notwithstanding any other
provision of this Agreement to the contrary, shares of Xxxxxxx Granite Common
Stock that are outstanding immediately prior to the Effective Time and which are
held by shareholders of Xxxxxxx Granite who
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shall have not voted in favor of approval and adoption of this Agreement and the
Merger or consented thereto in writing and who shall have properly demanded in
writing appraisal for such shares in accordance with Section 13.21 of the NH Law
and who shall not have withdrawn such demand or otherwise have forfeited
appraisal rights (collectively, the "Dissenting Shares") shall not be converted
into or represent the right to receive shares of Class B Common Stock as
provided herein. Such shareholders of Xxxxxxx Granite shall be entitled to
receive payment of the appraised value of such shares of Xxxxxxx Granite Common
Stock held by them in accordance with the provisions of Section 13.25 of NH Law,
except that all Dissenting Shares held by shareholders who shall have failed to
perfect or who effectively shall have withdrawn or lost their rights to
appraisal of such shares of Xxxxxxx Granite Common Stock under Section 13.21 of
NH Law shall thereupon be deemed to have been converted, as of the Effective
Time, into the right to receive, without interest, the shares of Class B Common
Stock as provided herein upon surrender by such shareholder, in the manner
provided in Section 2.4, of a Xxxxxxx Granite Certificate.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
ROCK OF AGES
Rock of Ages represents and warrants as follows:
Section 3.1 Organization. Rock of Ages is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
Section 3.2 Authority. (a) Rock of Ages has all requisite
corporate power and authority to enter into this Agreement and any additional
documents or instruments to be delivered hereunder on or prior to the Effective
Time (the "Additional Documents"), to perform its obligations hereunder and
thereunder and to consummate the Merger.
(b) The execution, delivery and performance by Rock
of Ages of this Agreement and the Additional Documents to which Rock of Ages
is a party and the
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consummation by Rock of Ages of the Merger have been duly authorized by all
requisite corporate action on the part of Rock of Ages, including without
limitation, obtaining the requisite approval and adoption of this Agreement and
the Merger by the shareholders of Rock of Ages.
(c) This Agreement has been and, upon
execution thereof by Rock of Ages, the Additional Documents to which Rock of
Ages is a party will be, duly and validly executed and delivered by Rock of Ages
and constitutes or, in the case of the Additional Documents, will constitute,
valid and binding obligations of Rock of Ages, enforceable against Rock of Ages
in accordance with their respective terms.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF XXXXXXX GRANITE
Xxxxxxx Granite represents and warrants as follows:
Section 4.1 Organization. Xxxxxxx Granite is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Hampshire.
Section 4.2 Authority. (a) Xxxxxxx Granite has all requisite
corporate power and authority to enter into this Agreement and any Additional
Documents, to perform its obligations hereunder and thereunder and to consummate
the Merger.
(b) The execution, delivery and perfor-
xxxxx by Xxxxxxx Granite of this Agreement and the Additional Documents to which
Xxxxxxx Granite is a party and the consummation by Xxxxxxx Granite of the Merger
have been duly authorized by all requisite corporate action on the part of
Xxxxxxx Granite, except for the requisite approval and adoption of this
Agreement and the Merger by the shareholders of Xxxxxxx Granite.
(c) This Agreement has been and, upon execution
thereof by Xxxxxxx Granite, the Additional Documents to which Xxxxxxx Granite is
a party will be,
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duly and validly executed and delivered by Xxxxxxx Granite and constitutes or,
in the case of the Additional Documents, will constitute, valid and binding
obligations of Xxxxxxx Granite, enforceable against Xxxxxxx Granite in
accordance with their respective terms.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE
XXXXXXX SHAREHOLDERS
Each Xxxxxxx Shareholder represents and warrants, solely with
respect to such Xxxxxxx Shareholder, as follows:
Section 5.1 Authority. (a) Such Xxxxxxx Shareholder has the
full legal right and power to enter into this Agreement and any Additional
Documents and to perform his obligations hereunder and thereunder.
(b)This Agreement has been and, upon execution
thereof by such Xxxxxxx Shareholder, the Additional Documents to which such
Xxxxxxx Shareholder is a party will be, duly and validly executed and delivered
by such Xxxxxxx Shareholder and constitutes or, in the case of the Additional
Documents, will constitute, valid and binding obligations of such Xxxxxxx
Shareholder, enforceable against such Xxxxxxx Shareholder in accordance with
their respective terms.
Section 5.2 Accredited Investor; Purchase for Investment. Such
Xxxxxxx Shareholder (i) is an "accredited investor" within the meaning of Rule
501(a) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii) if such Xxxxxxx Shareholder is not such an accredited
investor, such Xxxxxxx Shareholder has designated a "purchaser representative"
within the meaning of Rule 501(h) of Regulation D under the Securities Act (the
"Purchaser Representative"). The shares of Class B Common Stock to be issued to
such Xxxxxxx Shareholder pursuant to the Merger (the "Shares") will be acquired
by such Xxxxxxx Shareholder for investment only and not with a view to any
public distribution thereof in violation of any of the requirements of the
Securities Act or the rules and regulations thereunder.
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Section 5.3 Shares Not Registered; Legend. Such Xxxxxxx
Shareholder understands that the Shares have not been registered under the
Securities Act in reliance upon exemptions contained in the Securities Act and
applicable regulations promulgated thereunder or interpretations thereof, and
cannot be offered for sale, sold or otherwise transferred unless such sale or
transfer is so registered or qualifies for exemption from registration under the
Securities Act; and that the certificates representing the Shares shall bear a
legend to such effect.
Section 5.4 Rule 144. Such Xxxxxxx Shareholder understands
that the Shares will be considered "restricted securities" within the meaning of
Rule 144 under the Securities Act; that Rule 144 may not be available to exempt
from the registration requirements of the Securities Act sales of such
"restricted securities"; that if Rule 144 is available, sales may be made in
reliance upon Rule 144 only in accordance with the terms and conditions of Rule
144, which among other things generally requires that the securities be held for
at least one year and that sales be made in limited amounts (which amounts are
subject to certain exceptions depending upon whether the seller is an
"affiliate" within the meaning of Rule 144 and how long the securities have been
held); and that, if an exemption for such sales is not available, registration
of the Shares may be required, but that Rock of Ages is under no obligation to
register the Shares or to facilitate compliance or to comply with any exemption.
Section 5.5 Sophistication. Such Xxxxxxx Shareholder has such
knowledge and experience in financial and business matters that such Xxxxxxx
Shareholder is capable of evaluating the merits and risks of such Xxxxxxx
Shareholder's investment in the Shares or such Xxxxxxx Shareholder has been
advised by a Purchaser Representative possessing such knowledge and experience;
and such Xxxxxxx Shareholder understands and is able to bear any economic risks
associated with such investment (including the necessity of holding the Shares
for an indefinite period of time, inasmuch as the Shares have not been, and may
not in the foreseeable future be, registered under the Securities Act, and
including the risk of the loss of such Xxxxxxx Shareholder's entire investment
in the Shares).
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Section 5.6 Review. Such Xxxxxxx Shareholder and, if
applicable, his Purchaser Representative have been given the opportunity to ask
questions of, and receive answers from, the principal officers of Rock of Ages
concerning the business and financial affairs of Rock of Ages, and the terms and
conditions of such Xxxxxxx Shareholder's acquisition of Shares; and such Xxxxxxx
Shareholder and, if applicable, his Purchaser Representative have had further
opportunity to obtain any additional information necessary to verify the
accuracy of the foregoing information. Such Xxxxxxx Shareholder and, if
applicable, his Purchaser Representative have relied on their own examination of
Rock of Ages and the terms of the Class B Common Stock, including the merits and
risks involved in making an investment in the Shares and such Xxxxxxx
Shareholder acknowledges that no representations have been made to such Xxxxxxx
Shareholder concerning the Shares. Such Xxxxxxx Shareholder acknowledges that he
and, if applicable, his Purchaser Representative have had the opportunity to
review such terms and agreements and the transactions contemplated hereby with
such Xxxxxxx Shareholder's own legal counsel and tax and investment advisors.
Such Xxxxxxx Shareholder is relying solely on such counsel and advisors
(including, if applicable, such Xxxxxxx Shareholder's Purchaser Representative)
for legal, tax and investment advice with respect to such terms, agreements and
transactions.
ARTICLE VI
COVENANTS AND AGREEMENTS
Section 6.1 Shareholders' Meetings. Xxxxxxx Granite shall, and
the Xxxxxxx Shareholders shall cause Xxxxxxx Granite to, call a meeting of its
shareholders to be held as promptly as practicable for the purpose of voting
upon the approval and adoption of this Agreement. Xxxxxxx Granite will, through
its Board of Directors, recommend to its shareholders approval and adoption of
this Agreement and the Merger.
Section 6.2 Best Efforts. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use its best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under
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applicable laws and regulations to consummate the Merger in accordance with the
terms and conditions of this Agreement.
Section 6.3 Agreement to Vote Shares. Each of the Xxxxxxx
Shareholders irrevocably agrees to vote such Xxxxxxx Shareholder's shares of
Xxxxxxx Granite Common Stock in favor of adoption and approval of the Merger
Agreement and the Merger at any meeting of the stockholders of Xxxxxxx Granite
at which such matter is considered and at every adjournment thereof. Each
Xxxxxxx Shareholder agrees to deliver to Rock of Ages (or a designee of Rock of
Ages) upon request prior to any vote contemplated by the foregoing a proxy
substantially in the form attached hereto as Exhibit A (a "Proxy"), which Proxy
shall be irrevocable to the extent permitted under New Hampshire law, and Rock
of Ages (or its designee, if applicable) irrevocably agrees to vote the shares
of Xxxxxxx Granite Common Stock subject to each such Proxy in favor of adoption
and approval of the Merger Agreement and the Merger.
ARTICLE VII
CONDITIONS
The respective obligations of Xxxxxxx Granite and Rock of Ages
to consummate the Merger are subject to the satisfaction of the following
conditions:
Section 7.1 Stockholder Approval. This Agreement and the
Merger shall have been approved and adopted by the affirmative vote of the
holders of Xxxxxxx Granite Common Stock entitled to cast a majority of the total
number of votes entitled to be cast.
Section 7.2 Consummation of Distribution. The Distribution
shall have been consummated.
Section 7.3 Initial Public Offering. All conditions to the
closing of the IPO set forth in the Underwriting Agreement to be entered into
among Rock of Ages, Xxxxxxx Xxxxx & Associates, Inc. and certain selling
stockholders of Rock of Ages (the "Underwriting Agreement"), shall have been
satisfied or waived by the respective parties thereto, and the closing of the
IPO shall be about to occur.
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ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments; Waiver. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto, which
amendment has been approved by a majority of the directors of each of Xxxxxxx
Granite and Rock of Ages (excluding for this purpose the Xxxxxxx Shareholders
who are such directors). Any provision hereof may be waived only by an
instrument in writing signed by the party or parties entitled to the benefit of
such provision and, in the case of such a waiver by Xxxxxxx Granite or Rock of
Ages, respectively, only if such instrument has been approved by a majority of
the directors of Xxxxxxx Granite or Rock of Ages, respectively (excluding for
this purpose the Xxxxxxx Shareholders who are such directors).
Section 8.2 Notices. All notices and other communications
hereunder shall be in writing and shall be delivered personally or by next-day
courier or telecopied with confirmation of receipt to the parties at the
respective addresses specified below (or at such other address for a party as
shall be specified by like notice). Any such notice or other communication shall
be effective upon receipt, if personally delivered or telecopied, or one day
after delivery to a courier for next-day delivery.
(a) if to Rock of Ages, to:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
(b) if to Xxxxxxx Granite, to:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
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(c) if to either of the Xxxxxxx Share-
holders, to:
c/o Xxxx X. Xxxxxxx
000 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxxxxx 00000
Section 8.3 Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 8.4 Severability. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect against a party hereto, the validity, legality and
enforceability of the remaining provisions herein shall not in any way be
affected or impaired thereby and such invalidity, illegality or unenforceability
shall only apply as to such party in the specific jurisdiction where such
judgment shall be made.
Section 8.5 Counterparts. 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 one and the same instrument.
Section 8.6 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware (without
giving effect to the principles of conflicts of law thereof), except to the
extent NH Law applies to the Merger.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
ROCK OF AGES CORPORATION
By /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
XXXXXXX GRANITE COMPANY, INC.
By /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
XXXXXXX SHAREHOLDERS:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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EXHIBIT A
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
[Rock of Ages Corporation, a Delaware corporation ("Rock of Ages")][designee of
Rock of Ages], his proxy to vote all shares of Common Stock, par value $10.00
per share, of Xxxxxxx Granite Company, Inc., a New Hampshire corporation (the
"Company"), owned by the undersigned and which the undersigned is entitled vote
at any meeting of stockholders of the Company, and at any adjournment thereof,
to be held for the purpose of considering and voting upon a proposal to approve
and adopt the Agreement and Plan of Merger and Reorganization, dated as of
August , 1997 (the "Merger Agreement"), by and among Rock of Ages, the Company
and Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx, providing for the merger (the
"Merger") of the Company with and into Rock of Ages, FOR such proposal. This
proxy is coupled with an interest and revokes all prior proxies granted by the
undersigned, is irrevocable.
Dated ____________________, 1997
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(Signature of Xxxxxxx Shareholder)
