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EXHIBIT 10.9
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
KEYSTONE GRANITE COMPANY, INC.
SUPPLY AND DISTRIBUTION AGREEMENT
This Supply and Distribution Agreement made as of June 27, 1997 to be
effective as of the 30th day of June, 1997, by and among KEYSTONE GRANITE
COMPANY, INC., a Georgia corporation, with with an address of P. O. Xxx 000,
Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Keystone"), THE ESTATE OF
XXXXXX X. XXXXXXX, XX., deceased, with an address of P. O. Xxx 000, Xxxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as "Xxxxxxx"), 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") and
MISSOURI RED QUARRIES, INC., a Georgia corporation, with an address of P. O. Xxx
0000, Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Missouri Red").
RECITALS:
Missouri Red is Keystone's exclusive sales agent for Topaz. Keystone,
Missouri Red and Rock of Ages believe it is in their best long term interests
for Keystone and Missouri Red to supply Rock of Ages with Keystone granite
blocks and any other blocks quarried at the Keystone quarries and Topaz granite
blocks (collectively "Topaz") quarried by Keystone 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, Keystone and Missouri Red wish
to provide to Rock of Ages certain exclusive rights to sell Topaz 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. SUPPLY OF TOPAZ REQUIREMENTS. Keystone through Missouri Red and
Missouri Red agree 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 Topaz for a term (herein the "Term") equal to the
greater of: (a) 20 years; or (b) the period of time while Keystone is
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
owned to any extent by Xxxxxxx, Xxxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxxxx,
III (said Xxxxxxx and 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 Topaz during each year of the Term and if in any *** (***) *** period
Rock of Ages does not purchase an aggregate of *** cubic feet of Topaz, Keystone
and Missouri Red can thereafter sell to other customers subject to Rock of Ages'
priority to purchase Topaz set forth in Section 3 of this agreement.
2. PRICE FOR TOPAZ. The price to be charged by Missouri Red or Keystone
for Topaz 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. Keystone, 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 Topaz will be increased
based on the increased production costs of Keystone for Topaz; 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 Topaz
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 EXCLUSIVE RIGHT TO PURCHASE MONUMENTAL GRADE TOPAZ.
Keystone and Missouri Red agree that Rock of Ages will have the exclusive right
to purchase all monumental grade Topaz quarried by Keystone during the Term and
Rock of Ages agrees to purchase all monumental grade Topaz produced by Keystone
during the Term.
4. USE OF NAME. Keystone agrees after its execution of this agreement
that it will not market its granite products in a fashion which will cause
confusion between the name "Keystone" used by Rock of Ages for its granite
products and Keystone's granite products.
5. ADVICE RE: NONMONUMENTAL SALES OF TOPAZ. Keystone and/or Missouri
Red agrees to advise Rock of Ages within ten (10) days after the end of each
calendar quarter of all sales of nonmonumental Topaz to third parties.
Information to be included in the written advice of said sale will include the
quantity of nonmonumental Topaz sold, the price charged, the shipping terms, and
the name of the purchaser.
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
6. SIZE ALLOWANCE FOR TOPAZ BLOCKS. Keystone agrees that all monumental
and nonmonumental Topaz blocks sold to Rock of Ages will have size allowances of
a minimum of ****** on each dimension.
7. EXCLUSIVE SALE RIGHTS OUTSIDE NORTH AMERICA. Keystone and Missouri
Red hereby appoint Rock of Ages as the exclusive distributor to buy and to sell
all grades of Topaz in the territory comprised of all of the world. The price to
be charged to Rock of Ages for Topaz 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"). Keystone, 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
for Topaz; 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 *** (***) year period. Missouri Red will
invoice Rock of Ages on the first day of each calendar month for Topaz 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.
8. RIGHT OF FIRST REFUSAL. In consideration of Rock of Ages acceptance
of its appointment as Keystone's exclusive sales distributor of Topaz 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, Keystone 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 and the Xxxxxxx Family, the only permitted future owners of said
capital stock, the current owner of all of the outstanding capital stock of
Keystone, hereby grants to Rock of Ages, on its own behalf and on behalf of the
Xxxxxxx Family, a right of first refusal on any sale or other disposition,
including any disposition by gift, bequest or interstate distribution, by them,
of all or by any portion of the capital stock of Keystone; provided, however,
that this right of first refusal shall not apply to the sale or other
disposition of any of said capital stock by Xxxxxxx to either member of the
Oglesby Family or by Xxxxxx X. Xxxxxxx Xx. to Xxxxxx X. Xxxxxxx, III. In the
event of any proposed bona fide sale or other disposition by Keystone or by
Xxxxxxx or any member of the Xxxxxxx Family of the assets or stock of Keystone
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
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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. Subject to the next following sentence, at the closing the stock or
asset being sold or otherwise disposed of 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 being sold or otherwise disposed of 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. In the event that
the disposition is a gift, bequest or interstate distribution of capital stock
of Keystone, then Rock of Ages will pay the Sender the book value of the capital
stock being acquired as of the fiscal year end preceding the date of the
closing. Keystone 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 Keystone owns real estate. Xxxxxxx and the
Oglesby Family members also agrees that a legend satisfactory to Rock of Ages
shall be applied to all Keystone capital stock certificates evidencing the right
of first refusal granted to Rock of Ages by Xxxxxxx and the Xxxxxxx Family so
that all permitted future holders thereof will take and hold their shares of
capital stock in Keystone 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, Keystone agrees that it will not
pay, directly or indirectly, G. Xxxxxx 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
Keystone, Xxxxxxx and the Xxxxxxx Family, 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
assignment 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.
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If to Keystone: Keystone Granite Company, Inc.
P. O. Xxx 000
Xxxxxxxx, XX 00000
Phone:
If to Xxxxxxx:
The Estate of Xxxxxx X. Xxxxxxx, Xx.,
deceased
c/o Xxxxxx X. Xxxxxxx, Xx., Executor
P. O. Xxx 000
Xxxxxxxx, XX 00000
Phone:
with, in the case of notice R. Xxxxx Xxxxxx, Esq.
to Keystone and Xxxxxx & Xxxxxxxx
Xxxxxxx, a copy to P. O. Drawer 1056
(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
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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 Superior Court,
Georgia, 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 any party hereto 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.
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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
KEYSTONE GRANITE COMPANY, INC.
/s/ By: /S/ Xxxxxxxxx X. Xxxxxxx
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Xxxxxxxxx X. Xxxxxxx, President
/s/ /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
/s/ /s/ Xxxxxx X. Xxxxxxx, III
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Xxxxxx X. Xxxxxxx, III
THE ESTATE OF XXXXXX X. XXXXXXX,
XX., deceased
/s/ By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx., Executor
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EXHIBIT 7
TO
SUPPLY AND DISTRIBUTION AGREEMENT
The Initial Outside Sale Price will be negotiated on a case by case basis
by Keystone, Missouri Red and Rock of Ages for all grades of Topaz 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.
