UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES
EXCHANGE ACT OF 1934 (Amendment No. 2)
Filed by the
Registrant
þ
Filed by a Party other than the
Registrant
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Check the appropriate box:
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Preliminary
Proxy Statement
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Confidential,
for use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
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Definitive
Proxy Statement
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Definitive
Additional Materials
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Soliciting
Material Pursuant to
Section 240.14a-12
ROCK OF AGES CORPORATION
(Name of Registrant as Specified In
Its Charter)
(Name of Person(s) Filing Proxy
Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act
Rules 14a-6(i)(1)
and
0-11.
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1)
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Title of each class of securities to which transaction applies:
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Rock of Ages Corporation Class A common stock, no par
value (the Class A Common Stock); Rock of
Ages Corporation Class B common stock, no par value
(the Class B Common Stock and, together with
the Class A Common Stock, the Common Stock);
options to purchase shares of Class A Common Stock
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2)
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Aggregate number of securities to which transaction
applies:
*
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3)
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Per unit price or other underlying value of transaction computed
pursuant to Exchange Act
Rule 0-11
(set forth the amount on which the filing fee is calculated and
state how it was determined):
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The proposed maximum aggregate value of the transaction, for
purposes only of calculating the filing fee, is $25,181,756,
which is the sum of (a) the product of (i) the
4,707,944 shares of Common Stock, which number of shares is
the difference between the number of shares of Common Stock
outstanding and the Cancelled Shares, multiplied by
(ii) the merger consideration of $5.25 per share of Common
Stock, plus (b) $465,050, which is the total cash amount
required to cash-out each of the 177,500 outstanding
options to purchase shares of Class A Common Stock having
an exercise price per share less than $5.25, at a cash-out price
equal to the product of (i) the difference between the
exercise price per share of such option and $5.25 per share
multiplied by (ii) the number of shares subject to such
option. The filing fee equals the proposed maximum aggregate
value of the transaction multiplied by 0.0000713.
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4)
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Proposed maximum aggregate value of transaction: $25,181,756
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5)
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Total fee paid: $1,795.46
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Fee paid previously with preliminary materials:
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Check box if any part of the fee is offset as provided by
Exchange Act
Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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1)
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Amount Previously Paid:
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2)
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Form, Schedule or Registration Statement No.:
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* Pursuant to the Agreement and Plan of Merger, dated
as of October 18, 2010, by and among Rock of
Ages Corporation (hereinafter referred to as the
Company or Rock of Ages), Swenson
Granite Company LLC (Parent) and Granite
Acquisition, LLC, a limited liability company wholly owned by
Parent (Merger Sub), Merger Sub will merge with and
into the Company (the Merger), with the Company
surviving the Merger as a wholly owned subsidiary of Parent. At
the effective time of the Merger, the shares of Common Stock
held by Parent, Merger Sub or any other direct or indirect
wholly owned subsidiary of Parent, as well as shares of Common
Stock held in the Companys treasury (collectively, the
Cancelled Shares) will be cancelled without any
consideration payable therefor. The aggregate number of
securities to which the transaction applies excludes the
anticipated number of Cancelled Shares.
PRELIMINARY
PROXY STATEMENT SUBJECT TO COMPLETION
ROCK OF
AGES CORPORATION
560 GRANITEVILLE ROAD
GRANITEVILLE, VERMONT 05654
,
2010
To the shareholders of Rock of Ages Corporation:
You are cordially invited to attend a special meeting of the
shareholders of Rock of Ages Corporation to be held
on ,
201 at 10:00 a.m., Eastern time, at our
Visitors Center, located adjacent to the Rock of
Ages Craftsman Center and main office at 558 Graniteville
Road, Graniteville, Vermont 05654.
At the special meeting, you will be asked to consider and vote
upon a proposal to approve a merger agreement by and among Rock
of Ages, Swenson Granite Company LLC (Parent) and
Granite Acquisition, LLC, a limited liability company wholly
owned by Parent (Merger Sub) providing for the
acquisition of Rock of Ages by Parent by means of a merger at a
cash price of $5.25 per share of Rock of Ages Class A
and Class B common stock. Only shareholders who hold their
shares of Class A common stock or Class B common stock
at the close of business
on ,
2010 will be entitled to vote at the special meeting.
Shortly after Parents submission in May 2010 of a proposal
to acquire Rock of Ages, our board of directors formed a special
committee consisting of three independent directors, James L.
Fox, Pamela G. Sheiffer and Frederick E. Webster,
Jr, Ph.D., to explore and consider possible strategic
alternatives for the Company while continuing to consider
Parents acquisition proposal. The merger agreement with
Parent was unanimously approved by the special committee and our
board of directors following a thorough review by the special
committee, with the assistance of its independent financial
advisor, Covington Associates, LLC, of possible strategic
alternatives, including a process to identify potential
competing bidders and solicit alternative acquisition proposals.
In its evaluation of the merger, the special committee and our
board of directors considered, among other factors, the opinion
of Covington Associates, LLC that, as of the date of the opinion
and based on and subject to the assumptions, limitations and
qualifications set forth in the opinion, the merger
consideration of $5.25 per share in cash to be received by Rock
of Ages shareholders in the merger is fair, from a
financial point of view, to those shareholders. The Covington
Associates fairness opinion is attached as Annex D to the
enclosed proxy statement.
The special committee and our board of directors have
unanimously determined that the merger is fair to and in the
best interests of our shareholders who will be entitled to
receive the $5.25 per share cash merger price, and recommend
that you vote FOR approval of the merger
agreement
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Kurt Swenson, the Chairman of Parent and non-executive Chairman
of Rock of Ages, together with his brother, Kevin Swenson, Vice
President of Parent, and Robert Pope, President and Chief
Executive Officer of Parent, own approximately 71% of Parent.
They, along with certain other members of Parent who are also
Rock of Ages shareholders, have agreed with Parent to vote their
shares, representing approximately 81% of the total voting power
of all Rock of Ages shares, in favor of approval of the merger
agreement.
However, under the merger agreement, consummation of the
merger is conditioned upon, in addition to approval of the
merger agreement by the majority vote of the Rock of Ages
Class A and Class B common stock, voting together,
approval by a majority of the outstanding shares of Class A
common stock, excluding shares held by members of Parent. Thus,
your vote is very important regardless of the number of shares
you own. Your failure to vote will have the same effect as a
vote against the merger agreement.
At the special meeting
you will also be asked to consider and vote on a proposal to
adjourn the special meeting if necessary to permit further
solicitation of proxies in the event that at the time of the
special meeting there are not sufficient votes of shares of
Class A common stock, excluding such shares held by members
of Parent, to satisfy this condition in the merger agreement.
Our board of directors unanimously recommends that you vote
FOR
this proposal.
Prior to the merger, Kurt Swenson, Kevin Swenson, Robert Pope
and certain other members of Parent who are also shareholders of
Rock of Ages, will contribute to Parent a total of
258,326 shares of Class A common stock and
2,449,793 shares of Class B common stock in exchange
for additional shares of
membership interest in Parent, and will not receive the $5.25
per share cash merger price for those Rock of Ages shares.
Please sign, date and return the accompanying proxy card(s)
in the enclosed envelope, or otherwise vote by proxy in
accordance with the voting instructions set forth in the
accompanying proxy statement and proxy card(s). Please note that
separate proxy cards have been provided for Class A common
stock and Class B common stock. If you are a holder of both
classes of stock, please sign, date and return both proxy cards
or otherwise vote by proxy in accordance with the voting
instructions set forth in the accompanying proxy statement and
proxy card(s), so that all of your shares are voted. If you
attend the special meeting, you may vote in person whether or
not you have sent in your proxy card(s).
The enclosed proxy statement provides you with detailed
information about the proposed merger, the merger agreement and
the special meeting. We urge you to read the entire document
carefully, including the annexes, which constitute part of this
proxy statement. If you have any questions or require assistance
in voting your shares, please call The Proxy Advisory Group,
LLC, our proxy solicitor for the special meeting, toll-free at
(888) 557-7699
or (888) 55PROXY.
Sincerely,
James L. Fox
Chairman of the Special Committee
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THIS
TRANSACTION OR PASSED UPON THE MERITS OR FAIRNESS OF THIS
TRANSACTION OR THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THE
ENCLOSED PROXY STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE
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The enclosed proxy statement is
dated ,
2010 and is first being mailed to shareholders on or
about ,
2010.
PRELIMINARY
PROXY STATEMENT SUBJECT TO COMPLETION
ROCK OF
AGES CORPORATION
560 GRANITEVILLE ROAD
GRANITEVILLE, VERMONT 05654
NOTICE OF SPECIAL MEETING OF
SHAREHOLDERS
To Be
Held ,
201
To the shareholders of Rock of Ages Corporation:
A special meeting of shareholders of Rock of
Ages Corporation (the Company, we,
and our) will be held
on ,
201 at 10:00 a.m., Eastern time, at our
Visitors Center, located adjacent to the Rock of
Ages Craftsman Center and main office at 558 Graniteville
Road, Graniteville, Vermont 05654.
The purpose of the meeting is:
1. to consider and vote upon a proposal to approve the
Agreement and Plan of Merger, dated as of October 18, 2010,
which we refer to as the merger agreement, that we
entered into with Swenson Granite Company LLC
(Parent) and Granite Acquisition, LLC, a limited
liability company wholly owned by Parent;
2. to consider and vote upon a proposal to adjourn the
special meeting if necessary to permit further solicitation of
proxies in the event there are not sufficient votes of shares of
Class A common stock at the time of the special meeting to
satisfy the condition in the merger agreement that the merger
agreement be approved by a majority of the outstanding shares of
our Class A common stock, not including (in the number of
outstanding shares of Class A common stock, or in the
number of shares of Class A common stock voted in favor of
the merger agreement) shares of Class A common stock owned
directly or through a broker or other nominee by members of
Parent; and
3. to transact such other business as may properly come
before the special meeting or any adjournments or postponements
of the special meeting.
We have described the merger agreement and the merger in the
accompanying proxy statement, which you should read in its
entirety before voting. A copy of the merger agreement is
attached as Annex A to the proxy statement. The record date
to determine shareholders entitled to vote at the special
meeting is
[ ],
2010. Only holders of our Class A or Class B common
stock at the close of business on the record date are entitled
to notice of, and to vote at, the special meeting.
Shareholders of the Company may be entitled to assert
dissenters rights under Chapter 13 of the Vermont
Business Corporation Act. See the enclosed proxy statement,
which includes as Annex E Chapter 13 of the Vermont
Business Corporation Act, for more information.
Regardless of the number of shares you own, your vote is very
important. Please sign, date and return the accompanying proxy
card(s) in the enclosed envelope, or otherwise vote by proxy in
accordance with the voting instructions set forth in the
accompanying proxy statement and proxy card(s). Please note that
separate proxy cards have been provided for Class A common
stock and Class B common stock. If you are a holder of both
classes of common stock, please sign, date and return both proxy
cards or otherwise vote by proxy in accordance with the voting
instructions set forth in the accompanying proxy statement and
proxy card(s), so that all of your shares are voted. If you
attend the special meeting, you may vote in person whether or
not you have sent in your proxy card(s).
By Order of the Board of Directors
Richard C. Kimball
Secretary
TABLE OF
CONTENTS
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iii
SUMMARY
TERM SHEET
You are being asked to consider and vote upon a proposal to
approve a merger agreement by and among Rock of
Ages Corporation, Swenson Granite Company LLC
(Parent) and Granite Acquisition, LLC, a limited
liability company wholly owned by Parent (Merger
Sub). This agreement is referred to in this proxy
statement as the merger agreement, and is attached
to this proxy statement as Annex A. The merger agreement
provides for the merger of Merger Sub with and into Rock of
Ages. Rock of Ages will be the surviving corporation in the
merger and, immediately following the merger, Parent will own
all of the outstanding capital stock of Rock of Ages. This
summary term sheet briefly describes the most material terms of
the proposed merger and may not contain all of the information
that is important to you. We urge you to read carefully the
entire proxy statement, including the annexes, which constitute
part of this proxy statement.
In this proxy statement, the terms Rock of Ages,
the Company, we, our and
us refer to Rock of Ages Corporation and its
subsidiaries
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Parties
Involved in the Proposed Transaction (page 76)
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Rock of Ages
Rock of Ages was founded in 1885
and is an integrated granite quarrier and manufacturer whose
principal products are granite blocks, the raw material of the
granite industry which it sells to other manufacturers and
transfers to its own manufacturing facilities, and manufactured
granite memorials used primarily in cemeteries. Rock of Ages
owns and operates 9 active quarry properties and 5 manufacturing
and sawing facilities in North America, principally in Vermont,
North Carolina, Pennsylvania and the Province of Quebec.
The Company sells granite blocks to granite manufacturers around
the world and also sells memorials at wholesale to approximately
112 independent authorized Rock of Ages retailers in the United
States and approximately 106 independent retailers in Canada.
These retailers are the primary distribution channel for the
Companys branded and unbranded memorials in North America.
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Parent
Parent is a family owned business that
has been quarrying and manufacturing granite in New England
since 1883. Its primary products are granite curbing for highway
use and granite landscape products such as steps, pavers, posts
and other products for residential and commercial use. Presently
headed by the fourth generation of the Swenson family, Parent is
organized as a Delaware limited liability company. Parent holds
all the issued and outstanding limited liability company
interests of Merger Sub and, as a result of the merger, Parent
will acquire 100% ownership of the Company.
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Merger Sub
Merger Sub is a recently-formed
Vermont limited liability company established for the purpose of
effecting the merger. Merger Sub is wholly owned by Parent.
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Swenson Granite Group
The members of the
Swenson Granite Group include Kurt Swenson, our non-executive
Chairman and the Chairman of Parent, his brother Kevin Swenson,
Vice President and a director of Parent, Robert Pope, the
President and Chief Executive Officer and a director of Parent,
Peter Friberg, a Vice President of the Company, and certain
other members of Parent who are also shareholders of the
Company, all of whom have agreed, under the terms of voting
agreements with Parent (the form of which is attached to this
proxy statement as Annex B), to vote all of the Company
shares they beneficially own in favor of approval of the merger
agreement. Parent has advised us that the members of the Swenson
Granite Group beneficially own, in the aggregate,
408,701 shares of Class A common stock and
2,449,793 shares of Class B common stock of the
Company, representing approximately 81% of the total voting
power of all outstanding shares of Company common stock.
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The members of the Swenson Granite Group have agreed to, prior
to the effective time of the merger, contribute some or all of
their shares of Company common stock in exchange for additional
shares of membership interest in Parent, pursuant to the terms
of contribution agreements entered into by and between Parent
and each such person (the form of which is attached to this
proxy statement as Annex C). Parent has advised us that the
members of the Swenson Granite Group will contribute to Parent
prior to the effective time
1
of the merger, in the aggregate, 258,326 shares of
Class A common stock and 2,449,793 shares of
Class B common stock.
The
Special Meeting (page 72)
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Matters to be Considered
(page 72)
At the special meeting,
shareholders will, among other things, consider and vote upon a
proposal to approve the merger agreement.
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Date, Time, Place (page 72)
The
special meeting will be held
on ,
201 at 10:00 a.m., Eastern time, at our
Visitors Center, located adjacent to the Rock of
Ages Craftsman Center and main office at 558 Graniteville
Road, Graniteville, Vermont 05654.
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Record Date (page 72)
The Company
has
fixed ,
2010 as the record date for the special meeting. Only holders of
record of our common stock as of the close of business on the
record date are entitled to notice of, and to vote at, the
special meeting and any adjournment or postponement thereof.
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Required Vote and Voting Rights (pages 73 and
72)
Shareholder approval of the merger
agreement requires the affirmative vote of:
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a majority of the votes represented by all outstanding shares of
our Class A common stock and Class B common stock,
voting together as a single voting group; and
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a majority of the outstanding shares of our Class A common
stock, not including (in the number of outstanding shares of
Class A common stock, or in the number of shares of Class A
common stock voted in favor of the merger agreement) shares of
Class A common stock owned directly or through a broker or
other nominee by members of Parent (we refer to this vote
requirement as the majority of the minority vote or
the majority of the minority approval).
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Each share of Class A common stock entitles the holder
thereof to one vote and each share of Class B common stock
entitles the holder thereof to 10 votes on all matters on which
the holders of Class A common stock and Class B common
stock vote together as a single voting group.
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How Shares are Voted (page 73)
You may
vote by proxy by completing, signing, dating and returning your
proxy card(s) in the enclosed envelope. If your shares are held
in street name through a broker, you should provide
written instructions to your broker on how to vote your shares.
To ensure that your broker receives your instructions, you
should promptly complete, sign and send to your broker in the
envelope enclosed with this proxy statement the voting
instruction form which is also enclosed.
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You may also vote by proxy through the Internet at
www.voteproxy.com (by following the on-screen instructions) or
by telephone by calling toll-free 1-800-PROXIES from any
touch-tone telephone and following the instructions. You should
have your proxy card(s) available when you access the web page
or call. You may also wish to check the voting form used by the
firm that holds your shares to see if it offers telephone or
Internet voting.
If you sign your proxy and do not indicate how you want to vote,
your shares will be voted FOR the approval of the merger
agreement, FOR the adjournment of the special meeting, if
necessary to solicit additional proxies, and in accordance with
the recommendations of the Companys board of directors on
any other matters properly brought before the special meeting
for a vote.
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Revocation of Proxies (page 73)
You may
change your vote or revoke your proxy at any time before the
proxy is exercised. If you submitted your proxy card(s) by mail,
you must (1) file with the Secretary of the Company or
other designee of the Company, at or before the taking of the
vote at the special meeting, a written notice of revocation
bearing a later date than the proxy you previously submitted or
(2) duly execute a later dated proxy relating to the same
shares and deliver it to the Secretary of the Company or other
designee before the taking of the vote at the special meeting.
If you voted by proxy electronically through the Internet or by
telephone as described above, you may simply vote again at a
later date using the same procedures, in which case the later
submitted proxy will be recorded and the earlier vote revoked.
Attendance at the special meeting will not have the effect of
revoking a proxy
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unless you give written notice of revocation to the Secretary of
the Company before the proxy is exercised or you vote by written
ballot at the special meeting. If you hold your shares through a
broker, bank or other nominee in street name, you
will need to contact them or follow the instructions in the
voting instruction form used by the firm that holds your shares
to revoke your proxy.
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Structure
of the Transaction (page 18)
The proposed transaction is a merger of Merger Sub with and into
the Company, with the Company surviving the merger as a wholly
owned subsidiary of Parent.
The principal steps that will accomplish the transaction are as
follows:
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Debt Financing.
Under the merger agreement,
the merger is not subject to a financing contingency. However,
Parent is seeking debt financing in connection with the merger
and will require that financing in order to consummate the
merger and related transactions. Peoples United Bank
(Peoples United) and Key Bank, National
Association (Key Bank and, together with
Peoples United, the Lenders) have committed,
subject to specified terms and conditions, to provide Parent
with debt financing to fund the merger consideration and option
cash-out payments and transaction expenses, and for repayment of
certain existing indebtedness of Parent, the Company and its
subsidiaries and for future working capital and capital
expenditures of Parent, the Company and its subsidiaries.
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Contribution of Shares.
Prior to the merger,
the members of the Swenson Granite Group will contribute or
cause to be contributed to Parent some or all of the shares of
Company common stock beneficially owned by them in exchange for
additional shares of membership interest in Parent. This
exchange will occur in accordance with the terms of contribution
agreements entered into by and between Parent and each member of
the Swenson Granite Group. The form of the contribution
agreements is attached to this proxy statement as Annex C.
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The Merger.
Following the satisfaction or
waiver of all conditions to the merger, including the approval
of the Companys shareholders as described above, the
following will occur at the effective time of the merger:
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all shares of Company common stock that are held (1) in the
treasury of the Company, or (2) by Parent, Merger Sub or
any other direct or indirect wholly owned subsidiary of Parent
will be cancelled without any consideration being paid therefor;
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each other share of Class A and Class B common stock
of the Company outstanding immediately before the effective time
of the merger (other than any shares as to which a shareholder
has properly asserted dissenters rights under the Vermont
Business Corporation Act, or VBCA) will be converted
into the right to receive $5.25 in cash without interest (the
merger consideration), which merger consideration is
fixed and is not subject to adjustment based on market prices,
financial or operating results or other factors;
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all shares of the Class A and Class B common stock of
the Company, the holders of which have properly asserted
dissenters rights under the VBCA, including by delivering
notice, prior to the vote at the special meeting on approval of
the merger agreement, of their intention to demand payment for
their shares pursuant to the VBCA, will be cancelled and the
holders of such shares will be entitled to receive payment for
their shares in an amount determined in the manner prescribed by
the VBCA to be the fair value of such shares;
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the limited liability company interests of Merger Sub issued and
outstanding immediately prior to the merger will be converted
into and become one validly issued, fully paid and
non-assessable share of Class B common stock of the
Company; and
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each holder of a vested or unvested outstanding option to
purchase shares of our Class A common stock prior to the
effective time of the merger issued under the Companys
stock option plans, will have the right to receive cash in
respect of such stock option in an amount equal to the product
of (1) the excess, if any, of the merger consideration over
the per-share exercise price of such stock
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option, multiplied by (2) the number of Company shares
issuable under such stock option (which amount will be payable
without interest, net of any withholding tax). Options which
have an exercise price per share equal to or greater than the
merger consideration will be cancelled as of the effective time
of the merger without the payment of any consideration.
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Purpose
of the Merger (page 20)
Our purpose in undertaking the merger is to allow our
shareholders (other than the members of the Swenson Granite
Group to the extent they contribute their Company shares to
Parent pursuant to contribution agreements described above under
SUMMARY TERM SHEET Structure of the
Transaction Contribution of Shares) to realize
the value of their investment in Rock of Ages in cash at a price
that represents a 57% premium to the average closing market
price of our Class A common stock for the 30 trading days
prior to, and an 84% premium to the average closing price of our
Class A common stock for the twelve months prior to, the
May 7, 2010 public announcement of the initial proposal by
Parent to acquire 100% ownership of Rock of Ages.
For Parent, the purposes of the merger include, but are not
limited to, the following:
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to afford the Company greater operating flexibility as a
privately-held company, allowing management to concentrate on
long-term growth and to reduce its focus on the
quarter-to-quarter
performance often emphasized by the public markets;
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to enable the Company to use in its operations those resources
that would otherwise be expended in complying with requirements
applicable to public companies;
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to allow Parent and the Company to benefit from synergies of
operating in a number of segments in the market for granite
blocks and manufactured granite products and eliminating
duplicative administrative functions; and
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to allow Parent to benefit from any future earnings and growth
of the Company after its common stock ceases to be publicly
traded.
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Certain
Effects of the Merger (page 53)
Among other results of the merger, our shareholders (other than
those shareholders who are also members of Parent) will no
longer have any interest in, and will no longer be shareholders
of, the Company and will not participate in any of our future
earnings or growth; following the merger, Parent will own all of
the outstanding shares of the Company. Also, following the
merger, the Companys Class A common stock will no
longer be publicly traded, and the Company will no longer file
periodic reports with the Securities and Exchange Commission
(the SEC).
The
Companys Position as to the Fairness of the Merger;
Recommendations of the Special Committee and the Board of
Directors (page 34)
Because certain members of the Companys board of directors
have actual or potential conflicts of interest in evaluating the
merger, the board of directors appointed a special committee of
independent directors, consisting of James L. Fox, Pamela G.
Sheiffer and Frederick E. Webster, Jr., Ph.D., to
evaluate the merger and the Companys other strategic
alternatives and make recommendations to the board of directors
with respect thereto.
The special committee, after careful consideration of numerous
factors, unanimously determined that the merger is fair to and
in the best interests of the Companys shareholders (other
than the members of the Swenson Granite Group to the extent they
contribute their Company shares to Parent pursuant to
contribution agreements described above under SUMMARY TERM
SHEET Structure of the Transaction
Contribution of Shares), adopted the merger agreement and
recommends that the Companys shareholders vote in favor of
approval of the merger agreement. The special committee also
recommended that the board of directors adopt the merger
agreement and recommends that the Companys shareholders
vote in favor of approval of the merger agreement.
Based in part on the recommendation of the special committee,
the board of directors unanimously determined that the merger is
fair to and in the best interests of the Companys
shareholders (other than the members of the
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Swenson Granite Group to the extent they contribute their
Company shares to Parent pursuant to contribution agreements
described above under SUMMARY TERM SHEET
Structure of the Transaction Contribution of
Shares).
The board of directors, based in part on the
unanimous approval and recommendation of the special committee,
unanimously recommends that the Companys shareholders vote
FOR the approval of the merger agreement.
Opinion
of the Financial Advisor to the Special Committee
(page 44)
Covington Associates, LLC, the special committees
independent financial advisor (Covington), has
delivered a written opinion to the special committee and the
board of directors to the effect that, as of October 15,
2010, and based on and subject to the assumptions, limitations
and qualifications set forth in the opinion, the $5.25 per share
merger consideration to be received by the Companys
shareholders in the merger is fair, from a financial point of
view, to such shareholders. Covingtons opinion was
provided to the special committee and the board of directors in
connection with the special committees and the board of
directors evaluation of the merger consideration to be
paid in the merger, did not address any other aspect of the
merger and did not constitute a recommendation to any holder of
the Companys common stock as to how such holder should
vote or act with respect to any matters relating to the merger.
The full text of Covingtons written opinion is included in
this proxy statement as Annex D. You should read the
opinion carefully in its entirety.
In the special committees engagement letter with
Covington, the Company agreed to pay Covington $250,000 upon
rendering its written opinion, whether or not the opinion was
favorable. The Company has also agreed to pay Covington a
success fee upon completion of the merger, and to reimburse
Covington for its
out-of-pocket
expenses incurred in connection with its engagement as the
special committees financial advisor.
Position
of Parent, Merger Sub and the members of the Swenson Granite
Group as to the Fairness of the Merger (page 40)
Parent, Merger Sub and the members of the Swenson Granite Group
believe that the merger is substantively and procedurally fair
to the Companys shareholders to the extent their shares of
Company common stock are converted in the merger into the right
to receive the merger consideration. In arriving at their
position as to the fairness of the merger, Parent, Merger Sub
and the members of the Swenson Granite Group considered the
factors considered by the special committee and the board of
directors discussed in the section entitled SPECIAL
FACTORS Recommendations of the Special Committee and
the Board of Directors; Reasons for Recommending Approval of the
Merger Agreement to the Companys Shareholders, as
well as the other factors discussed in the section entitled
SPECIAL FACTORS Position of Parent, Merger Sub
and the members of the Swenson Granite Group as to the Fairness
of the Merger to the Companys Shareholders that are
Receiving the Merger Consideration.
Interests
of Certain Persons in the Merger (page 56)
In considering the recommendations of our board of directors,
you should be aware that certain of the Companys executive
officers and directors have interests in the transaction that
are different from, or are in addition to, the interests of the
Companys shareholders generally. The special committee and
the board of directors were aware of these potential or actual
conflicts of interest and considered them along with other
matters when they resolved to recommend that the Companys
shareholders vote in favor of approval of the merger agreement.
These interests, which are discussed in detail in the section
entitled SPECIAL FACTORS Interests of
Certain Persons in the Merger, include the following:
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as members of Parent, certain directors of the Company will be
the ultimate beneficial owners of the Company following
completion of the merger;
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prior to the merger, Kurt Swenson and Richard Kimball, two of
our directors, will contribute to Parent, respectively,
1,135,000 shares and 72,126 shares (including shares
of Company common stock held by Mr. Kimballs wife),
and, along with other members of the Swenson Granite Group, a
total of 258,326 shares of the Companys Class A
common stock and 2,449,793 shares of the Companys
Class B common stock, in exchange for additional shares of
membership interest in Parent, pursuant to
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the terms of contribution agreements entered into by and between
Parent and each such director and other member of the Swenson
Granite Group;
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as set forth in the initial Swenson Proposal (as
defined below under SPECIAL FACTORS
Background of the Merger) submitted to the companys
board of directors on May 6, 2010, if the merger is
consummated, Parent intends to offer Donald Labonte, the
Companys President and Chief Executive Officer and a
director of the Company the opportunity to purchase shares of
membership interest in Parent on similar terms as key officers
of Parent have purchased such shares, although Parent has no
agreement or understanding with Mr. Labonte regarding such
terms;
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the officers of the Company immediately prior to the effective
time of the merger will, from and after the effective time of
the merger, be the initial officers of the Company, as the
surviving corporation, in accordance with the articles of
incorporation and bylaws of the Company, until their successors
are duly elected or appointed and qualified or until their
earlier death, resignation or removal;
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like other Company option holders, each member of management and
the board of directors who holds a vested or unvested stock
option at the effective time of the merger granted under a
Company equity plan will have the right to receive cash in
respect of such stock option in an amount equal to the product
of (1) the excess, if any, of the merger consideration over
the per-share exercise price of such stock option, multiplied by
(2) the number of shares issuable upon exercise of such
option;
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the merger agreement provides that following the effective time
of the merger, the Company, as the surviving corporation, and
Parent as guarantor, will indemnify the present and former
officers and directors of the Company for acts and omissions in
such capacity prior to such effective time, to the fullest
extent permitted by the VBCA, and will provide director and
officer liability insurance coverage for them at least
comparable to that currently in effect, for six years after such
effective time; and
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the chairman of the special committee received $50,000 and each
other member of the special committee received $35,000, in
consideration of each members service on the special
committee, in each case in a single fixed fee and without regard
to whether the special committee recommended approval of the
merger agreement or any other transaction, or whether the merger
or any other transaction is consummated.
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Financing
of the Merger (page 59)
The merger is not subject to a financing contingency. However,
Parent is seeking debt financing in connection with the merger
and will require that financing in order to consummate the
merger and related transactions. Parent has received an amended
and restated commitment letter from the Lenders (the
commitment letter), pursuant to which the Lenders
have committed, subject to certain specified conditions
discussed elsewhere in this proxy statement, to enter into a
definitive financing agreement (in the form attached to the
commitment letter) to provide financing for the merger (the
Financing). The commitment letter will remain
outstanding through February 18, 2011 unless extended by
the Lenders. In the merger agreement, Parent has agreed to use
its best efforts to maintain in effect the commitment letter
and, prior to the effective time of the merger, execute the
definitive financing agreement attached to the commitment letter
and consummate the Financing. The Financing is expected to
consist of:
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a $20 million revolving credit line (the Revolving
Loan), to be used primarily to fund working capital,
finance accounts receivable and inventory and support the
issuance of letters of credit, and as necessary (subject to the
terms of the definitive financing agreement) to fund a portion
of the costs of acquisition of Rock of Ages and its
subsidiaries, including repayment of certain existing
indebtedness of Rock of Ages and its subsidiaries; and
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a $30 million acquisition and capital expenditures line
(the Term Loans), to be used to fund the acquisition
of Rock of Ages and its subsidiaries, including transaction
expenses, repayment of certain existing indebtedness of Parent,
Rock of Ages and its subsidiaries, and to finance capital
expenditures and other acquisitions.
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Under the terms of the Financing, interest on the Revolving Loan
is payable monthly, and principal is payable on a revolving
basis. All outstanding principal balances and any accrued
interest with respect to the Revolving Loan will be due at
maturity three years from the date of closing. Each Term Loan
will fully amortize over a ten-year term with installments of
principal and interest payable monthly. The Financing will be
subject to certain financial covenants and conditions, and will
be collateralized by a perfected first lien (including first
mortgages) on all real and personal property of Parent, Rock of
Ages (as the surviving corporation) and the United States
subsidiaries of Rock of Ages.
Other
Acquisition Proposals (page 90)
The merger agreement contains no prohibition on the Company
seeking
,
or entering into discussions or negotiations
concerning, other acquisition offers or proposals, and the
Company may provide material non-public information to a
potential competing acquirer. However, the Company is required
to give Parent notice of any Acquisition Proposal (as such term
is defined in the merger agreement and below, under the heading
THE MERGER AGREEMENT Acquisition
Proposals) or of the Companys decision to enter into
discussions or negotiations with any person regarding an
Acquisition Proposal.
Before the Companys shareholders approve the merger
agreement, the Company may withdraw or modify its recommended
approval of the merger agreement
and/or
terminate the merger agreement in order to enter into an
agreement that contemplates a Superior Proposal (as determined
under the terms of the merger agreement and defined below, under
the heading THE MERGER AGREEMENT Acquisition
Proposals), if the special committee or a majority of the
(but not less than two) qualified directors (as that
term is used in the VBCA), and the Companys board of
directors if required by applicable provisions of the VBCA or
the Companys bylaws, determines in good faith, after
consultation with its outside counsel and after taking into
account any changes to the terms and conditions of the merger
agreement that may be proposed by Parent, that the failure to
take such action would reasonably be expected to be inconsistent
with the fiduciary duties of the Companys directors under
applicable law. The Company must provide at least five business
days notice to Parent before changing its recommendation
in favor of the merger agreement or terminating the merger
agreement, which notice must indicate that the Company intends
to take such action and the reasons therefor including, if the
basis of the proposed action is receipt of a Superior Proposal,
the material terms and conditions of such Superior Proposal.
Conditions
to Completion of the Merger (page 95)
The obligations of Parent, Merger Sub
and/or
the
Company to complete the merger are subject to the satisfaction
or waiver of various conditions specified in the merger
agreement, including:
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the absence of any order or action enjoining or prohibiting the
consummation of the merger, or materially changing the terms or
conditions of the merger agreement;
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approval of the merger agreement by a majority of the
outstanding shares of the Companys Class A common
stock and Class B common stock, voting together as a single
voting group;
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the majority of the minority approval;
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the performance and certification by the parties of their
obligations under the merger agreement;
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the accuracy of the parties representations and warranties
under the merger agreement;
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the existence of no more than 20% of dissenting
shares (defined as shares of our common stock outstanding
immediately prior to the effective time, assuming for this
purpose the exercise of Company Class A common stock
options, that are not voted in favor of the merger and do not
consent thereto in writing and where the holders of such shares
have properly perfected their dissenters rights under the
VBCA); and
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the absence of a Material Adverse Effect (as that term is
defined in the merger agreement and below, under the heading
THE MERGER AGREEMENT Representations and
Warranties) occurring from the date of the merger
agreement through the closing of the merger.
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The parties do not have any present intention to waive any of
the conditions to the merger.
Termination
of the Merger Agreement (page 98)
The merger agreement may be terminated at any time prior to the
effective time of the merger by the mutual written consent of
the Company and Parent. Either the Company or Parent may also
generally terminate the merger agreement at any time prior to
the effective time of the merger in the event:
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of a failure to consummate the merger by May 18, 2011 (the
End Date), provided that a party may not so
terminate the merger agreement due to the occurrence of the End
Date if that partys breach of the merger agreement has
been the cause of, or resulted in the failure of the conditions
to closing to be satisfied on or prior to the End Date;
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any governmental entity enacts or issues any order or takes any
other action that is final and may not be appealed and has the
effect of preventing or prohibiting the consummation of the
merger; or
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the majority of the minority approval is not obtained.
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In addition, Parent may terminate the merger agreement at any
time prior to the effective time of the merger:
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upon a breach of any covenant or agreement on the part of the
Company, or if any of the Companys representations or
warranties are untrue, in any case such that certain closing
conditions to the merger would not be satisfied and the breach
is either incapable of being cured prior to the End Date or, if
the breach is capable of being cured prior to the End Date, is
not so cured on or prior to the End Date;
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if the Companys board of directors (or a committee
thereof) withdraws, modifies or changes its approval or
recommendation of the merger agreement in a manner adverse to
Parent or Merger Sub;
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if the Companys board of directors (or a committee
thereof) adopts or recommends an Acquisition Proposal other than
the merger; or
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if the Companys board of directors (or a committee
thereof) fails to recommend against the acceptance of a tender
offer or an exchange offer by the Companys shareholders
for any outstanding Company common stock within 10 business days
of the commencement of such tender or exchange offer.
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Further, the Company may terminate the merger agreement at any
time prior to the effective time of the merger:
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upon a breach of any covenant or agreement on the part of Parent
or Merger Sub, or if any of Parents or Merger Subs
representations or warranties are untrue, in any case such that
certain closing conditions to the merger would not be satisfied
and the breach is either incapable of being cured prior to the
End Date or, if the breach is capable of being cured prior to
the End Date, is not so cured on or prior to the End Date;
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upon the approval by the special committee or a majority of the
(but not less than two) qualified directors (with respect to
both the merger agreement and an Acquisition Proposal), and the
Companys board of directors (to the extent required), of a
Superior Proposal; or
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upon the failure to obtain the affirmative vote in favor of the
merger agreement by a majority of the outstanding shares of the
Companys Class A common stock and Class B common
stock, voting together as a single voting group.
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Expenses
and Termination Fees (page 98)
The Company must reimburse Parent for all of its reasonable and
documented
out-of-pocket
costs and expenses incurred in connection with the merger
agreement and the transactions contemplated by the merger
agreement if:
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Parent terminates the merger agreement upon a breach by the
Company of any of its covenants or agreements and the breach is
either not cured by the End Date or is not capable of being
cured by the End Date (in which event such expense reimbursement
is in addition to Parents other remedies for such
breach); or
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the Company terminates the merger agreement in order to enter
into an agreement that contemplates a Superior Proposal (in
which event such expense reimbursement is Parents sole
remedy).
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Parent must reimburse the Company for all of its reasonable and
documented
out-of-pocket
costs and expenses incurred in connection with the merger
agreement and the transactions contemplated by the merger
agreement if the Company terminates the merger agreement upon a
breach by Parent or Merger Sub of any of their covenants or
agreements and the breach is either not cured by the End Date or
is not capable of being cured by the End Date. Such expense
reimbursement is in addition to the Companys other
remedies for such breach.
Further, if the Company terminates the merger agreement, and as
of the date of termination (1) all of the conditions to the
closing of the merger have been satisfied or waived (other than
those conditions that, while they are capable of being satisfied
as of the date of termination, by their terms are to be
satisfied at the closing of the merger) and (2) the merger
shall not have been consummated on or prior to the End Date
because Parent has failed to obtain the proceeds of the
financing related to the merger, then Parent is required to pay
the Company a termination fee, which termination fee will equal
the greater of (x) the Companys reasonable and
documented
out-of-pocket
costs and expenses incurred in connection with the merger
agreement and the transactions contemplated by the merger
agreement or (y) $2,518,000. If the Company is entitled to
and receives the termination fee, then the termination fee will
be the Companys sole remedy and recourse against Parent,
Merger Sub and their respective representatives and affiliates
for any losses or liabilities relating to the merger agreement
or the failure of the merger to be consummated.
Regulatory
Approvals and Requirements (page 62)
In connection with the merger, the Company will be required to
make certain filings with, and comply with certain laws of,
various federal and state governmental agencies. It is currently
expected that no prior regulatory approvals, including under
antitrust laws and regulations, will be required in order to
complete the merger.
Voting
Agreements (page 99)
The members of the Swenson Granite Group have entered into
voting agreements with Parent. The voting agreements require
that each member of the Swenson Granite Group vote all of the
Companys common stock that is beneficially owned by such
member in favor of the merger agreement and against any
alternate Acquisition Proposal. Each member of the Swenson
Granite Group has also granted Parent an irrevocable proxy to
vote their shares in favor of the merger agreement. The form of
the voting agreements is attached to this proxy statement as
Annex B.
The members of the Swenson Granite Group collectively control
approximately 81% of the total voting power of our Class A
and Class B common stock. Accordingly, provided the terms
of the voting agreements are enforced, the statutorily required
shareholder approval (but not the majority of the minority
approval) is assured of being obtained.
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Contribution
Agreements (page 100)
The members of the Swenson Granite Group have entered into
contribution agreements with Parent pursuant to which, prior to
the effective time of the merger, those shareholders will
contribute or cause to be contributed to Parent some or all of
the shares of the Companys common stock beneficially owned
by them, in exchange for additional shares of membership
interest in Parent. Since those shares of Company common stock
will be held by Parent at the effective time of the merger, at
that time those shares will be cancelled and will not be
converted into the right to receive the $5.25 per share merger
consideration. The form of the contribution agreements is
attached to this proxy statement as Annex C.
Litigation
Related to the Merger (page 62)
A purported shareholder class action lawsuit was commenced
against the Company, all of the members of our board of
directors, certain of our officers and Parent in connection with
Parents initial proposal, submitted to the board of
directors on May 6, 2010, to acquire the Company at $4.38
per share of Company common stock. A second purported
shareholder class action lawsuit was also commenced against most
of the same defendants shortly after the merger was announced on
October 18, 2010. Each plaintiff seeks, among other things,
damages and injunctive relief against the consummation of such
transaction proposed by Parent. The Company believes each action
is without merit and is vigorously defending. Both actions are
currently before the Federal District Court of Vermont. See
SPECIAL FACTORS Litigation Related to the
Merger.
Federal
Income Tax Consequences (page 66)
The receipt of cash by a United States holder in exchange for
the Companys common stock will be a taxable transaction
for U.S. federal income tax purposes and may also be
taxable under applicable state, local, foreign or other tax
laws. In general, United States holders of the Companys
common stock who receive cash in exchange for their shares
pursuant to the merger (including any cash received in
connection with the exercise of dissenters rights) should
be deemed to have received cash from the Company pursuant to a
redemption of the shares held by such shareholder. If the deemed
redemption of the shares held by a particular United States
holder qualifies as an exchange under
section 302(b) of the Internal Revenue Code of 1986, as
amended, which is referred to as the Code in this
proxy statement, the United States holder will recognize gain or
loss for U.S. federal income tax purposes equal to the
difference, if any, between the holders adjusted tax basis
in the shares and the amount of cash received. If the United
States holder holds the Companys common stock as a capital
asset, any gain or loss should generally be a capital gain or
loss. If the United States holder has held the shares for more
than 1 year, any gain or loss should generally be a
long-term gain or loss. The deductibility of capital losses is
subject to limitations.
The contribution by members of the Swenson Granite Group of
Company common stock in exchange for additional shares of
membership interest in Parent will be treated as a
non-taxable
exchange under Section 721 of the Code. As a result, each
such person will recognize no gain or loss on the exchange
(except for cash in lieu of fractional shares, of membership
interest in Parent) and his or her basis in his or her
Company common stock will be carried over as basis in his
or her shares of membership interest in Parent received in such
exchange.
Tax matters are very complex, and the tax consequences of the
merger to you will depend on the facts of your own situation.
You should consult your tax advisor for a full understanding of
the tax consequences of the merger to you, including the
federal, state, local and foreign tax consequences of the
merger
. See SPECIAL FACTORS Certain
Material U.S. Federal Income Tax Consequences.
Certain
Risks in the Event of Bankruptcy (page 59)
If the Company is insolvent at the time of the merger or becomes
insolvent because of the merger, the funds paid to shareholders
upon completion of the merger may be deemed to be a
fraudulent conveyance under applicable law and
therefore may be subject to the claims of the Companys
creditors. If such claims are asserted by the Companys
creditors, there is a risk that persons who were shareholders at
the effective time of the merger would be ordered by a court to
return to the Companys trustee in bankruptcy all or a
portion of the funds received upon the completion of the merger.
The board of directors presently has no reason to
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believe that the Company and its subsidiaries, on a consolidated
basis, will be insolvent immediately after giving effect to the
merger.
In the merger agreement Parent has represented and warranted to
us that, assuming the accuracy of our representations and
warranties in the merger agreement and of our financial
statements included in our periodic reports filed with the SEC
since January 1, 2010, immediately after giving effect to
the debt financing in connection with the merger, the payment of
the $5.25 per share merger consideration, the cash-out of
in-the-money
Company options and the payment of related fees and expenses,
Parent, the Company, as the surviving corporation in the merger,
and their respective subsidiaries, taken as a whole, will be
solvent (as such term is defined in the merger agreement).
Dissenters
Rights (pages 69, 75, 85)
If you provide written notice to the Company, before the vote is
taken at the special meeting on approval of the merger
agreement, of your intent to demand payment for your shares of
our common stock, do not vote in favor of approval of the merger
agreement and fulfill other procedural requirements, the VBCA
entitles you to a judicial appraisal of the fair value of your
shares of our common stock. See SPECIAL
FACTORS Dissenters Rights.
11
QUESTIONS
AND ANSWERS ABOUT THE MERGER
The following questions and answers, presented for your
convenience only, briefly address some commonly asked questions
about the merger. You should still carefully read the entire
proxy statement, including the annexes, which constitute part of
this proxy statement
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Q:
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Why am I receiving these materials?
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A:
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Our board of directors is providing these proxy materials to
give you information for use in determining how to vote your
shares in connection with the special meeting.
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Q:
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When and where is the special meeting?
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A:
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The special meeting will be held
on ,
201 at 10:00 a.m., Eastern time, at our
Visitors Center, located adjacent to the Rock of
Ages Craftsman Center and main office at 558 Graniteville
Road, Graniteville, Vermont 05654.
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Q:
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What am I being asked to vote upon?
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A:
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You are being asked to consider and vote upon a proposal to
approve the merger agreement, pursuant to which Merger Sub will
merge with and into the Company, with the Company surviving the
merger as a wholly owned subsidiary of Parent.
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Q:
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Who can vote on the proposal to approve the merger
agreement?
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A:
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Holders of our Class A and Class B common stock at the
close of business
on ,
2010, the record date for the special meeting, may vote in
person or by proxy on the proposal to approve the merger
agreement at the special meeting.
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Q:
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What vote is required to approve the merger agreement?
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A:
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Shareholder approval of the merger agreement requires the
affirmative vote of:
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a majority of the votes represented by all
outstanding shares of the Companys Class A common
stock and Class B common stock, voting together as a single
voting group; and
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a majority of the outstanding shares of our Company
Class A common stock, not including (in the number of
outstanding shares of Company Class A common stock, or in
the number of shares of Company Class A common stock voted
in favor of the merger agreement) shares of Company Class A
common stock owned directly or through a broker or other nominee
by members of Parent (we refer to this vote requirement as the
majority of the minority approval).
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Q:
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What will happen in the merger?
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A:
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If the merger agreement is approved by the Companys
shareholders and the other conditions to the merger are
satisfied or waived, at the effective time of the merger, Merger
Sub will be merged with and into the Company, with the Company
continuing as the surviving corporation and a wholly owned
subsidiary of Parent. Merger Sub, which is wholly owned by
Parent, is a recently-formed Vermont limited liability company
established for the sole purpose of effecting the merger. Prior
to the merger, the members of the Swenson Granite Group will
contribute to Parent some or all of their shares of the
Companys common stock that they beneficially own in
exchange for additional shares of membership interest in Parent.
After the merger, the Company will become a privately-held
company owned by Parent.
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Q:
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What will I receive in the merger?
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A:
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You will receive the merger consideration, which is $5.25 in
cash for each share of common stock owned by you at the
effective time of the merger, unless either (1) you are a
member of the Swenson Granite Group, in which event you will not
receive the $5.25 per share merger consideration for shares of
Company common stock contributed by you to Parent prior to the
effective time of the merger pursuant to a contribution
agreement and you will instead receive in exchange for such
contribution additional shares of membership interest in Parent
based on an exchange ratio and otherwise on the terms specified
in your
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contribution agreement, or (2) you provide written notice
to the Company, before the vote is taken at the special meeting
on approval of the merger agreement, of your intent to demand
payment for your shares, do not vote in favor of approval of the
merger agreement and fulfill other procedural requirements to
properly assert your dissenters rights under
Chapter 13 of the VBCA.
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Q:
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What are the reasons for the merger?
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A:
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Our purpose in undertaking the merger is to allow our
shareholders (other than the members of the Swenson Granite
Group, to the extent they contribute their Company shares to
Parent prior to the merger pursuant to contribution agreements)
to receive the $5.25 per share merger consideration, to realize
the value of their investment in the Company in cash at a price
that represents a 57% premium, and an 84% premium, respectively,
to the average closing price of our Class A common stock
for the 30 trading days and over the twelve months prior to the
May 7, 2010 public announcement of the initial proposal by
Parent to acquire 100% ownership of Rock of Ages. For Parent,
Merger Sub and the members of the Swenson Granite Group, the
purposes of the merger are to afford the Company greater
operating flexibility as a privately-held company, allowing
management to concentrate on long-term growth and to reduce its
focus on the
quarter-to-quarter
performance often emphasized by the public markets, to enable
the Company to use in its operations those resources that would
otherwise be expended in complying with requirements applicable
to public companies and to allow Parent and its members,
including the members of the Swenson Granite Group, to benefit
from any future earnings and growth of the Company after its
common stock ceases to be publicly traded.
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Q:
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What was the role of the special committee?
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A:
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Because certain directors of Rock of Ages have actual or
potential conflicts of interest in evaluating the merger, the
board of directors appointed a special committee of independent
directors to review and evaluate the proposed merger and the
Companys other available strategic alternatives, and to
only recommend to the board of directors a transaction with
Parent if the special committee determines that such a
transaction is fair to and in the best interests of the
Companys shareholders, to the extent those
shareholders shares of our common stock are converted in
the merger into the right to receive merger consideration. The
special committee had no obligation to recommend the approval of
the proposed merger or any other transaction.
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Q:
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What is the recommendation of the special committee?
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A:
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The special committee has unanimously determined that the merger
is fair to and in the best interests of the Companys
shareholders, to the extent those shareholders shares of
our common stock are converted in the merger into the right to
receive the merger consideration. The special committee
unanimously adopted the merger agreement and unanimously
recommends that the Companys shareholders vote in favor of
approval of the merger agreement. The special committee also
unanimously recommended to our board of directors that the board
of directors determine that the merger is fair to and in the
best interests of the Companys shareholders, to the extent
those shareholders shares of our common stock are
converted in the merger into the right to receive the merger
consideration, and that the board of directors adopt the merger
agreement and recommend to the Companys shareholders that
they vote in favor of approval of the merger agreement.
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In arriving at its conclusion, the special committee considered
the opinion of Covington, the special committees
independent financial advisor, that, as of the date of such
opinion and based on and subject to the assumptions, limitations
and qualifications set forth in the opinion, the merger
consideration to be received by the Companys shareholders
in the merger is fair, from a financial point of view, to such
shareholders. See SPECIAL FACTORS
Recommendations of the Special Committee and the Board of
Directors; Reasons for Recommending Approval of the Merger
Agreement to the Companys Shareholders on
page 34.
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Q:
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What is the recommendation of the board of directors?
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A:
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The board of directors, based in part on the unanimous
recommendation of the special committee, unanimously determined
that the merger is fair to and in the best interests of the
Companys
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shareholders, to the extent those shareholders shares
of our common stock are converted into the right to receive the
merger consideration in the merger, and unanimously recommends
that the Companys shareholders vote FOR approval of the
merger agreement
. The board of directors of the Company
based its recommendation, in part, on the unanimous
recommendation of the special committee, but also carefully
considered numerous additional factors including the fairness
opinion of Covington described above which was also addressed to
the board of directors, See SPECIAL FACTORS
Recommendations of the Special Committee and the Board of
Directors; Reasons for Recommending Approval of the Merger
Agreement to the Companys Shareholders on
page 34.
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Q:
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What are the consequences of the merger to present members of
the Companys management and board of directors?
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A:
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The officers of the Company immediately prior to the effective
time of the merger will, from and after the effective time of
the merger, be the initial officers of the Company, as the
surviving corporation in the merger, in accordance with the
articles of incorporation and bylaws of the Company, until their
successors are duly elected or appointed and qualified or until
their earlier death, resignation or removal. The current
officers of the Company are Donald Labonte, President and Chief
Executive Officer, Laura Plude, Vice President of Finance and
Chief Financial Officer, Paul H. Hutchins, Vice
President/Administration, Peter Friberg, Vice
President-Wholesale Sales, and Robert Campo, Vice
President-Quarry Sales and Marketing.
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The managers of Merger Sub immediately prior to the effective
time of the merger will, from and after the effective time of
the merger, be the initial directors of the Company, as the
surviving corporation in the merger, in accordance with the
articles of incorporation and bylaws of the Company, as the
surviving corporation, until their successors are duly elected
or appointed and qualified or until their earlier death,
resignation or removal.
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Like other shareholders, members of management and the board of
directors will be entitled to receive the merger consideration
for each of their shares of the Companys common stock, to
the extent such shares have not been contributed to Parent under
contribution agreements Parent has entered into with each member
of the Swenson Granite Group.
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Like other Company option holders, each member of management and
the board of directors who holds a vested or unvested Company
stock option at the effective time of the merger issued under a
Company stock option plan will have the right to receive cash in
cancellation of such stock option in an amount equal to the
product of (1) the excess, if any, of the merger
consideration over the per-share exercise price of such stock
option, multiplied by (2) the number of shares subject to
such stock option (which amount will be payable without
interest, net of any withholding tax). Options which have an
exercise price per share equal to or greater than the merger
consideration will be cancelled as of the effective time of the
merger without the payment of any consideration.
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Prior to the merger, the members of the Swenson Granite Group
(including Kurt Swenson, our
non-executive
Chairman and Richard Kimball, one of our directors) will
contribute some or all of their shares of Class A and
Class B common stock to Parent in exchange for additional
shares of membership interest in Parent, pursuant to the terms
of the contribution agreements.
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For more information, see SPECIAL FACTORS
Interests of Certain Persons in the Merger on page 56.
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Q:
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Is the merger subject to the satisfaction or waiver of any
conditions?
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A:
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Yes. Before the merger can be consummated, a number of closing
conditions must be satisfied or waived. These conditions are
described in this proxy statement in the section entitled
THE MERGER AGREEMENT Conditions to Completion
of the Merger. These conditions include, among others:
(1) the absence of any court order or other governmental
action enjoining or prohibiting the consummation of the merger,
or materially changing the terms or conditions of the merger
agreement; (2) the approval of the merger agreement by the
Rock of Ages shareholders, including the majority of the
minority approval; (3) performance and certification by the
parties of their obligations under the merger agreement;
(4) the
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accuracy of the parties representations and warranties
under the merger agreement; (5) holders of no more than 20%
of the Companys outstanding shares shall have properly
exercised dissenters rights with respect to such shares
under the VBCA, including by delivering notice, prior to the
vote at the special meeting on approval of the merger agreement,
of their intention to demand payment for their shares pursuant
to the VBCA; and (6) the absence of a Material Adverse
Effect (as that term is defined in the merger agreement and
below, under the heading THE MERGER AGREEMENT
Representations and Warranties) occurring from the date of
the merger agreement through the closing of the merger.
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If these conditions are not satisfied or, if permissible,
waived, the merger will not be completed even if shareholders
vote to approve the merger agreement.
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Q:
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When do you expect the merger to be completed?
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A:
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We are working toward completing the merger as quickly as
possible after the special meeting. We hope to complete the
merger during the [ ] calendar quarter of
201 , although there can be no assurance that we will be
able to do so.
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Q:
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What are the U.S. federal income tax consequences of the
merger to holders of the Companys stock other than the
members of the Swenson Granite Group to the extent they have
contributed their Company common stock to Parent prior to the
merger pursuant to contribution agreements with Parent?
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A:
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The receipt of cash by a United States holder in exchange for
the Companys common stock will be a taxable transaction
for U.S. federal income tax purposes and may also be taxable
under applicable state, local, foreign or other tax laws. In
general, United States holders of the Companys common
stock who receive cash in exchange for their shares pursuant to
the merger (including any cash received in connection with the
exercise of dissenters rights) should be deemed to have
received cash from the Company pursuant to a redemption of the
shares held by such shareholder. If the deemed redemption of the
shares held by a particular United States holder qualifies as an
exchange under section 302(b) of the Code in
this proxy statement, the United States holder will recognize
gain or loss for U.S. federal income tax purposes equal to the
difference, if any, between the holders adjusted tax basis
in the shares and the amount of cash received. If the United
States holder holds the Companys common stock as a capital
asset, any gain or loss should generally be a capital gain or
loss. If the United States holder has held the shares for more
than 1 year, any gain or loss should generally be a
long-term gain or loss. The deductibility of capital losses is
subject to limitations.
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Tax matters are very complex, and the tax consequences of the
merger to you will depend on the facts of your own situation.
You should consult your tax advisor for a full understanding of
the tax consequences of the merger to you, including the
federal, state, local and foreign tax consequences of the
merger
. See SPECIAL FACTORS Certain
Material U.S. Federal Income Tax Consequences.
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Q:
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How do I vote my Company stock?
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A:
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You may vote by proxy by completing, signing, dating and
returning your proxy card(s) in the enclosed envelope. If your
shares are held in street name through a broker, you
must provide written instructions to your broker on how to vote
your shares in order for your broker to do so. To ensure that
your broker receives your instructions, you should promptly
complete, sign and send to your broker in the envelope enclosed
with this proxy statement the voting instruction form which is
also enclosed.
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You may also vote by proxy through the Internet at
www.voteproxy.com (by following the on-screen instructions) or
by telephone by calling toll-free 1-800-PROXIES from any
touch-tone telephone and following the instructions. You should
have your proxy card(s) available when you access the web page
or call. You may also wish to check the voting form used by the
firm that holds your shares to see if it offers telephone or
Internet voting.
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If you sign your proxy and do not indicate how you want to vote,
your shares will be voted FOR the approval of the merger
agreement, FOR the adjournment of the special meeting, if
necessary to solicit additional proxies, and in accordance with
the recommendations of the Companys board of directors on
any other matters properly brought before the special meeting
for a vote.
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For more information on how to vote your shares, see the section
entitled THE SPECIAL MEETING How Shares are
Voted; Proxies; Revocation of Proxies on page 73.
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Q:
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What happens if I do not return a proxy card?
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A:
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If you neither vote at the meeting nor grant your proxy as
described in this proxy statement, your shares will not be
voted, which will have the effect of voting against approval of
the merger agreement.
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Q:
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May I vote in person?
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A:
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Yes. You may attend the special meeting and vote your shares in
person whether or not you sign and return your proxy card(s). If
your shares are held of record in street name by a
broker, nominee, fiduciary or other custodian and you wish to
vote in person at the special meeting, you must obtain from the
record holder a proxy issued in your name.
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Q:
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May I change my vote after I have mailed my signed proxy
card(s)?
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A:
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You may change your vote or revoke your proxy at any time before
the proxy is exercised. If you submitted your proxy card(s) by
mail, you must: (1) file with the Secretary of the Company
or other designee of the Company, at or before the taking of the
vote at the special meeting, a written notice of revocation
bearing a later date than the proxy you previously submitted; or
(2) duly execute a later dated proxy relating to the same
shares and deliver it to the Secretary of the Company or other
designee before the taking of the vote at the special meeting.
If you voted by proxy electronically through the Internet or by
telephone as described above, you may simply vote again at a
later date using the same procedures, in which case the later
submitted proxy will be recorded and the earlier vote revoked.
Attendance at the special meeting will not have the effect of
revoking a proxy unless you give written notice of revocation to
the Secretary of the Company before the proxy is exercised or
you vote by written ballot at the special meeting. If you hold
your shares through a broker, bank or other nominee in
street name, you will need to contact them or follow
the instructions in the voting instruction form used by the firm
that holds your shares to revoke your proxy.
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Q:
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If my shares are held in street name by my
broker, will my broker vote my shares for me?
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A:
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Your broker will not be able to vote your shares without
instructions from you. You should instruct your broker to vote
your shares, following the procedures provided by your broker.
Failure to instruct your broker to vote your shares will have
the same effect as voting against approval of the merger
agreement.
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Q:
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What does it mean if I receive more than one set of
materials?
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A:
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You may receive more than one set of materials because you own
shares of Rock of Ages stock that are registered under different
names or you own shares of both Class A and Class B
common stock. For example, you may own some shares directly as a
shareholder of record and other shares through a broker; or you
may own shares through more than one broker. In these
situations, you will receive multiple sets of proxy materials.
You must complete, sign, date and return all of the proxy cards
or follow the instructions for any alternative voting procedure
on each of the proxy cards that you receive in order to vote all
of the shares you own. Each proxy card you receive comes with
its own prepaid return envelope; if you vote by mail, make sure
you return each proxy card in the return envelope that
accompanies that proxy card.
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Q:
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If the merger is completed, how will I receive the cash for
my shares?
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A:
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If the merger is completed, you will be contacted by American
Stock Transfer & Trust Company, the
Companys transfer agent which Parent has designated to act
as paying agent in connection with the merger. The paying agent
will provide instructions that will explain how to surrender
stock certificates. You will receive cash for your shares from
the paying agent after you comply with these instructions. If
your shares are held for you in street name by a
broker, nominee, custodian or other fiduciary, you will receive
instructions from the broker, nominee, custodian or other
fiduciary as to how to effect the surrender of your shares and
receive cash for those shares. See THE MERGER
AGREEMENT Payment for the Shares of Our Common
Stock.
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Q:
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Should I send in my stock certificates now?
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A:
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No. If the merger is completed, you will receive written
instructions for surrendering your Company stock certificates in
exchange for cash. See THE MERGER AGREEMENT
Payment for the Shares of Our Common Stock.
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Q:
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What if I have lost a stock certificate?
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A:
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If you have lost a stock certificate, or if it has been stolen
or destroyed, then before you will be entitled to receive the
merger consideration, you will have to make an affidavit of the
loss, theft or destruction. You will also be required to post a
bond in a customary amount and upon such terms as may be
reasonably required as indemnity against any claim that may be
made against Parent or the surviving corporation with respect to
such certificate. These procedures will be described in a letter
of transmittal that you will receive after the effective time of
the merger, which you should read carefully in its entirety. See
THE MERGER AGREEMENT Payment for the Shares of
Our Common Stock.
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Q:
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What rights do I have to seek appraisal of my shares?
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A:
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If you provide written notice to the Company, before the vote is
taken at the special meeting on approval of the merger
agreement, of your intent to demand payment for your shares and
you do not vote in favor of approval of the merger agreement,
you may seek a judicial appraisal of the fair value of your
shares by following the procedures governing dissenters
rights specified in Chapter 13 of the Vermont Business
Corporation Act, referred to in this proxy statement as the
VBCA. See SPECIAL FACTORS Dissenters
Rights. A copy of Chapter 13 of the VBCA is included
as Annex E to this proxy statement.
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Q:
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Who can help answer my questions?
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A:
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If you would like additional copies, without charge, of this
proxy statement or if you have questions about the merger
agreement or the merger, including the procedures for voting
your shares, you may contact The Proxy Advisory Group, LLC, our
proxy solicitor for the special meeting, by phone (toll-free) at
(888) 557-7699
or (888) 55PROXY, or in writing at The Proxy Advisory
Group, LLC, 18 East 41st Street, Suite 2000, New York, NY
10017.
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SPECIAL
FACTORS
Structure
of the Transaction
The proposed transaction is a merger of Merger Sub with and into
Rock of Ages, which will survive the merger as a wholly owned
subsidiary of Parent.
The principal steps that will accomplish the merger are as
follows:
Debt Financing.
The merger agreement is not
subject to a financing contingency. However, Parent is seeking
debt financing in connection with the merger and will require
that financing in order to consummate the merger and related
transactions. Parent has received a commitment letter from the
Lenders, pursuant to which the Lenders have committed, subject
to certain specified conditions discussed elsewhere in this
proxy statement, to enter into a definitive financing agreement
(in the form attached to the commitment letter) to provide the
Financing. The commitment letter will remain outstanding through
February 18, 2011 unless extended by the Lenders. In the
merger agreement, Parent has agreed to use its best efforts to
maintain in effect the commitment letter and, prior to the
effective time of the merger, execute the definitive financing
agreement attached to the commitment letter and consummate the
Financing. The Financing is expected to consist of:
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the $20 million Revolving Loan, to be used primarily to
fund working capital, finance accounts receivable and inventory
and support the issuance of letters of credit, and as necessary
(subject to the terms of the definitive financing agreement) to
fund a portion of the costs of acquisition of Rock of Ages and
its subsidiaries, including repayment of certain existing
indebtedness of Rock of Ages and its subsidiaries; and
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the $30 million Term Loans, to be used primarily to fund
the acquisition of Rock of Ages and its subsidiaries, including
transaction expenses, repayment of certain existing indebtedness
of Parent, Rock of Ages and its subsidiaries, and to finance
capital expenditures and other acquisitions.
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Under the terms of the Financing, interest on the Revolving Loan
is payable monthly, and principal is payable on a revolving
basis. All outstanding principal balances and any accrued
interest with respect to the Revolving Loan will be due at
maturity three years from the date of closing. Each Term Loan
will fully amortize over a ten-year term with installments of
principal and interest payable monthly. The Financing will be
subject to certain financial covenants and conditions, and will
be collateralized by a perfected first lien (including first
mortgages) on all real and personal property of Parent, Rock of
Ages (as the surviving corporation) and the United States
subsidiaries of Rock of Ages. For additional details regarding
the terms and structure of the debt financing see SPECIAL
FACTORS Financing of the Merger.
Contribution of Shares.
Prior to the merger,
the members of the Swenson Granite Group will contribute or
cause to be contributed to Parent an aggregate of
258,326 shares of Class A common stock and
2,449,793 shares of Class B common stock in exchange
for additional shares of membership interest in Parent. Such
contributions will take place subject to the terms of
contribution agreements by and between Parent and each such
member of the Swenson Granite Group.
For additional details regarding the terms of the contribution
agreements, see VOTING AND CONTRIBUTION
AGREEMENTS Contribution Agreements.
For additional details regarding the interests of the members of
the Swenson Granite Group in the transaction, see SPECIAL
FACTORS Interests of Certain Persons in the
Merger.
The Merger.
Following the satisfaction or
waiver of all conditions to the merger, including the approval
of the Companys shareholders as described elsewhere in
this proxy statement, the following will occur at the effective
time of the merger:
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all shares of Company common stock that are held (1) in the
treasury of the Company, or (2) by Parent, Merger Sub or
any other direct or indirect wholly owned subsidiary of Parent
will be cancelled and retired without any consideration payable
therefor;
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all other shares of Company common stock issued and outstanding
immediately before the effective time of the merger (other than
any shares as to which a shareholder has properly asserted
dissenters rights under the VBCA) will be converted into
the right to receive the $5.25 per share merger consideration;
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all shares of the Companys common stock, the holders of
which have properly asserted dissenters rights under the
VBCA, will be cancelled and the holders of such shares will be
entitled to receive payment of the fair value of such shares, in
an amount and in the manner as determined pursuant to the VBCA;
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the limited liability company interests of Merger Sub issued and
outstanding immediately prior to the merger will be converted
into and become one validly issued, fully paid and
non-assessable share of Class B common stock of the
Company; and
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each holder of a vested or unvested outstanding option to
purchase shares of Class A common stock prior to the
effective time of the merger issued under the Companys
stock option plans, will have the right to receive cash in
respect of such stock option in an amount equal to the product
of (1) the excess, if any, of the merger consideration over
the per-share exercise price of such stock option, multiplied by
(2) the number of Company shares issuable under such stock
option (which amount will be payable without interest, net of
any withholding tax). Options which have an exercise price per
share equal to or greater than the merger consideration will be
cancelled as of the effective time of the merger without the
payment of any consideration.
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For additional details regarding the terms and structure of the
merger, see THE MERGER AGREEMENT.
As a result of the merger:
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Parent will own all of the outstanding shares of Rock of Ages;
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the shareholders of Rock of Ages (other than those shareholders
that are members of Parent at the effective time of the merger)
will no longer have any interest in, and will no longer be
shareholders of, the Company and will not participate in any of
our future earnings or growth;
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shares of Rock of Ages Class A common stock will no
longer be listed on The NASDAQ Global Market, and price
quotations with respect to sales of our shares of common stock
in the public market will no longer be available; and
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the registration of Rock of Ages common stock under the
Securities Exchange Act of 1934, as amended (the Exchange
Act) will be terminated, and we will cease filing reports
with the SEC.
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Board of Directors of Rock of Ages.
The board
of directors of Rock of Ages after the effective time of the
merger will initially consist of the managers of Merger Sub at
the effective time of the merger. These members include Kurt
Swenson, Kevin Swenson and Robert Pope, each of whom will serve
until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal.
Officers of Rock of Ages.
The current officers
of the Company are Donald Labonte, President and Chief Executive
Officer, Laura Plude, Vice President of Finance and Chief
Financial Officer, Paul H. Hutchins, Vice
President/Administration, Peter Friberg, Vice
President-Wholesale Sales, and Robert Campo, Vice
President-Quarry Sales and Marketing. These officers will
continue as the officers of the Company after the effective time
of the merger, however Mr. Labontes title will be
President and Chief Operating Officer (rather than Chief
Executive Officer). At the effective time of the merger, Robert
Pope will become Chief Executive Officer of the Company and will
continue to serve as President and Chief Executive Officer of
Parent. These officers of the Company after the effective time
of the merger will serve until their successors have been duly
elected or appointed and qualified or until their earlier death,
resignation or removal.
19
Purpose
and Reasons for the Merger
Rock
of Ages Purpose and Reasons for the Merger
Our purpose in undertaking the merger is to allow our
shareholders (other than the members of the Swenson Granite
Group, to the extent they contribute their Company shares to
Parent prior to the merger pursuant to the contribution
agreements) to realize the value of their investment in the
Company in cash at a price that represents a 57% premium and an
84% premium, respectively, to the average closing price of our
Class A common stock for the 30 trading days and over the
twelve months prior to the May 7, 2010 public announcement
of the initial proposal by Parent to acquire 100% ownership of
Rock of Ages. The special committee and the board of directors
of Rock of Ages believe, based upon the reasons discussed under
SPECIAL FACTORS Recommendations of the Special
Committee and the Board of Directors; Reasons for Recommending
Approval of the Merger Agreement to the Companys
Shareholders, that the merger is fair to and in the best
interests of the Companys shareholders, to the extent such
shareholders shares are converted in the merger into the
right to receive the $5.25 per share merger consideration.
Additionally, for the Company, becoming a private company is
expected to reduce costs related to our being a public company,
including but not limited to legal costs, the costs of certain
accounting and auditing activities and internal controls, the
cost of annual and special meetings, the cost of preparing,
printing and mailing corporate reports and proxy statements, and
the expense of a transfer agent. Further, following the merger,
at such time as Rock of Ages is no longer subject to the
reporting requirements of the Exchange Act, we will be able to
eliminate a good portion of the time devoted by our management
and some of its other employees to matters that relate
exclusively to Rock of Ages being a public company. As a result,
Rock of Ages may be better able to focus its resources on its
business and operations as a private company, and the merger may
advance these objectives, as noted above.
Parents,
Merger Subs and Swenson Granite Groups Purpose and
Reasons for the Merger
Parent and Merger Sub intend to effect the merger and acquire
all of the outstanding shares of common stock of Rock of Ages
that Parent does not already own at the effective time of the
merger (in addition to the shares of Company acquired by Parent
from the members of the Swenson Granite Group, in exchange for
additional shares of membership interest in Parent) because
they, along with the members of the Swenson Granite Group,
believe that it is best for Rock of Ages to operate as a
privately-held entity. Parent, Merger Sub and the members of
Swenson Granite Group have determined to pursue the merger at
this time and believe that it is best for Rock of Ages to
operate as a privately-held entity for the following reasons:
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in light of the Companys small public float and the low
trading volume for the Companys shares of common stock,
the benefits to Rock of Ages of having publicly-traded
securities have not outweighed the expenses and other
requirements imposed on the Company as a public company;
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without the constraint of the public markets emphasis on
quarterly earnings (and especially quarterly earnings growth),
and the markets reaction to public events, the Company
will have greater operating flexibility to focus on enhancing
long-term value;
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an emphasis on long-term growth rather than short-term earnings
could eventually result in greater business opportunities than
would be available to the Company if it remained publicly held;
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as a privately-held entity, the Company will be able to make
decisions that may negatively affect quarterly earnings but that
may increase the value of Rock of Ages assets or earnings
over the long term; and
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as a privately-held entity, the general level of confidence (or
lack thereof) in the stock markets or the failure to meet or
exceed analysts short-term earnings expectations will no
longer affect Rock of Ages or its equity value.
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20
In addition to the foregoing factors, Parent, Merger Sub and the
members of the Swenson Granite Group considered, among others,
the following positive factors:
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Parent and the members of the Swenson Granite Group will benefit
from any future earnings and growth of Rock of Ages after it
ceases to be publicly traded; and
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information concerning Rock of Ages and its operations,
financial results and directors and officers will no longer be
available to competitors.
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Parent, Merger Sub and the members of Swenson Granite Group also
considered, among others, the following negative factors:
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as a result of the merger and the other related transactions
contemplated in the merger agreement, an investment in Rock of
Ages will represent an illiquid investment in the stock of a
private company;
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following the merger, Parent will bear the sole burden for any
future losses or decrease in enterprise value; and
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the Companys and Parents debt level and interest
expense will increase substantially due to the additional
financing necessary to complete the merger. See SPECIAL
FACTORS Financing of the Merger.
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Parent, Merger Sub and the members of Swenson Granite Group
ultimately concluded that the potential detriments of the merger
to it were outweighed by the potential benefits of the merger
to it.
Background
of the Merger
The corporate predecessor of Parent first acquired majority
control of Rock of Ages in February of 1984 and Rock of Ages
became a wholly-owned subsidiary of the corporate predecessor of
Parent in approximately 1986. Rock of Ages became a public
company in October 1997 when we completed an initial public
offering of our Class A common stock for the purpose of
embarking on a strategy of vertically integrating into the
retailing of memorials by acquiring or otherwise opening retail
outlets selling granite memorials. In connection with, and to
facilitate, our initial public offering, the corporate
predecessor of Parent distributed to its shareholders its
operating assets and liabilities through a pro rata distribution
of member interests in Parent. As a result of these
transactions, and since our initial public offering, Kurt
Swenson, the Companys former President and Chief Executive
Officer and now non-executive Chairman and the Chairman of
Parent, together with his brother, Kevin Swenson, Vice President
and a director of Parent, Robert Pope, President and Chief
Executive Officer and a director of Parent, and their respective
family members and related trusts, have continued to own a
substantial majority equity interest in Parent and, through
their ownership of Company Class B common stock,
substantial majority voting control of the Company.
In late 2007, following an extensive review of strategic and
business alternatives, our board of directors determined that,
given the continuing losses being incurred by the Companys
retail division, the Companys shareholders would be best
served by disposing of our retail operations, reducing debt and
operating expenses and returning our focus to our core quarrying
and manufacturing businesses, including our wholesale memorial
distribution system in North America. Accordingly, in January
2008, we sold our retail division.
In the spring of 2008, Kurt Swenson advised the board of
directors of his intention to retire as the Companys Chief
Executive Officer, and in late April 2008, the Company entered
into a retirement agreement with Mr. Swenson, providing for
his retirement as Chief Executive Officer, effective
June 30, 2008. Mr. Swenson remained the Chairman of
the Board in a non-executive capacity. Donald Labonte, then the
Companys President and Chief Operating Officer, succeeded
Mr. Swenson as Chief Executive Officer and was elected to
the board of directors.
During 2008 and 2009, the Company pursued its new operating
plan, significantly reducing operating expenses and debt. In
2009, while revenues decreased compared to 2008, the Company
returned to profitability, reporting net income from continuing
operations of approximately $800,000, or approximately $0.11 per
diluted share.
21
These results for 2009 and the continued lack of improvement in
the trading prices for our Class A common stock were
disappointing to Kurt and Kevin Swenson, as controlling
shareholders of the Company. Despite the successful reduction of
operating costs and debt implemented by the Companys
management, and the return to modest profitability, the
continuing costs associated with the Company operating as a
public company, including the time devoted by Company management
to compliance and other public company matters, appeared to them
to be impediments to significantly increasing and sustaining
profitability, and thus outweighed the benefits to Rock of Ages
of being a public company, especially given the historically
small public float and illiquidity of the Companys
Class A common stock.
In the past, various institutional investors had noted to Kurt
Swenson that the minimal public float and illiquidity of the
Class A common stock meant that, absent a liquidity event
transaction for all shareholders, investors in the
Companys Class A common stock effectively had little
ability to monetize significant holdings of such shares. One of
the Companys major institutional investors reiterated this
point to Mr. Swenson shortly after the Companys
public announcement in March 2010 of its 2009 results.
In light of these considerations, in April 2010, after
informally consulting with Kevin Swenson and Robert Pope and
receiving their preliminary indication of support, Kurt Swenson
began taking preliminary steps to determine the feasibility and
advisability of submitting to the Companys board of
directors, on behalf of Parent, a proposal to acquire the
Company in an all-cash transaction, with a view to providing the
Companys shareholders with a liquidity event at an
attractive price, either through an acquisition of the Company
by Parent or by another bidder that would be identified through
a process to explore strategic alternatives that
Mr. Swenson expected would be pursued following
Parents submission of an offer. These steps included
preliminary discussions by Kurt Swenson with Parents
existing lender, including a meeting with its representatives on
April 6, 2010 regarding the possibility of financing such
an acquisition. This lender, which had no lending relationship
with the Company, undertook to analyze the proposed transaction
on a preliminary basis. Following the analysis, the lender
expressed interest in exploring the possibility of funding a
transaction between Parent and the Company.
Mr. Swenson then contacted, and later in April
Mr. Swenson and Mr. Pope met with, a representative of
Sheehan Phinney Bass + Green PA (Sheehan Phinney), a
firm with which Mr. Swenson was familiar and which he
understood had never represented the Company, to discuss
retaining Sheehan Phinney as legal counsel to represent Parent
in connection with a possible proposal to acquire the Company.
Parent retained Sheehan Phinney, and Messrs. Swenson and
Pope, with Sheehan Phinneys assistance, began preparing an
acquisition proposal letter, with a view to submitting the
letter to the Companys board of directors at its next
regularly scheduled meeting on May 6, 2010.
At that regularly scheduled meeting of the board on May
6
th
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without prior notice to any other Company director other than
Mr. Labonte, who Mr. Swenson advised earlier in the
week of the possibility that Parent would submit an acquisition
proposal, Mr. Swenson submitted, on behalf of Parent, a
letter containing a proposal to acquire the Company (the
Swenson Proposal). The Swenson Proposal contemplated
the acquisition by Parent of all outstanding shares of Company
common stock, including shares underlying vested options, at a
price of $4.38 per share in cash. According to the proposal
letter, as part of the transaction, Kurt Swenson, Kevin Swenson
and Mr. Pope would exchange all of their shares of
Class B common stock for additional shares of membership
interest in Parent, and thus would not receive cash for those
shares. In order to facilitate the financing of the proposed
transaction, other holders of Class B common stock who also
owned shares of membership interest in Parent would also be
offered the opportunity to exchange their shares of Class B
common stock in lieu of receiving the $4.38 per share price. The
Swenson Proposal indicated that the proposed acquisition by
Parent was conditioned on, among other things, lender due
diligence, negotiation of a definitive structure and terms to be
set forth in a definitive acquisition agreement and Parent
obtaining financing for the transaction in an amount sufficient
to fund the purchase price and the ongoing operations of the two
companies. The proposal letter also stated that, [W]e
think that the company would be well-served by the board
conducting a process of exploring its strategic options for
maximizing shareholder value, including a consideration of our
offer. The proposal letter also indicated that Parent
intended to offer Mr. Labonte the opportunity to buy shares
of membership interest in Parent if Parent acquired the Company.
Finally, the proposal letter noted Parents desire, prior
to entering into a definite agreement, to ascertain whether the
22
proposed transaction would be viewed favorably by specified
institutional investors which have substantial holdings of
Class A common stock.
In response to the Swenson Proposal, at its May
6
th
meeting, the board of directors established a special committee
comprised of independent directors James L. Fox, Pamela G.
Sheiffer and Frederick E. Webster Jr., Ph.D., to consider
and evaluate the Swenson Proposal and determine how to proceed
in the best interests of the Companys shareholders.
On May 7, 2010, the Company issued a press release
announcing receipt of the Swenson Proposal and the formation of
the special committee. The release contained the full text of
the proposal letter from Parent.
On May 10, 2010, a telephonic meeting of the special
committee was held. All of the members of the special committee
were present. Mr. Fox was appointed Chairman, and the
special committee considered and discussed the retention of
independent legal counsel and financial advisors. At the
invitation of the special committee, a representative of
Skadden, Arps, Slate, Meagher & Flom LLP
(Skadden), which the special committee was
considering retaining, attended the meeting. He discussed
Skaddens expertise in mergers and acquisitions and
securities law and in representing special committees of boards
of directors of public companies in going-private transactions.
He also discussed Skaddens prior representation of the
Company as special outside counsel in the past, including
advising the board of directors during its consideration of
strategic and business alternatives which ultimately resulted in
the sale of the Companys retail division in 2008.
Skaddens representation of the Company after this had
diminished significantly, and the firm had performed no services
for the Company since March 2009. The Skadden representative
indicated that the special committee should consider whether, in
their view, such prior representation would in any way
compromise Skaddens vigorous representation of the special
committee.
The special committee also discussed the possible engagement of
Covington Associates LLC (Covington), an investment
banking firm, to serve as independent financial advisor to the
special committee. Covington had also previously advised the
Company during its earlier consideration of strategic and
business alternatives that culminated in the sale of the retail
division, and thus it was noted that both the potential benefits
and possible drawbacks associated with engaging Covington in
light of this prior involvement with the Company should be taken
into account in considering engaging Covington.
In addition to considering the retention of legal and financial
advisors, the special committee also considered and discussed
whether the Companys regular outside counsel, McLane,
Graf, Raulerson & Middleton PA (McLane),
should represent the Company in connection with the Swenson
Proposal and related matters. A representative of McLane was
present at the meeting and reviewed for the special committee
McLanes prior and ongoing representation of the Company in
matters unrelated to the Swenson Proposal, and its prior
representation of Kurt Swenson and Kevin Swenson in estate
planning matters and prior representation of Parent in one brief
and immaterial intellectual property matter.
The special committee then adjourned the meeting to consider
further the special committees possible engagement of
Skadden and McLanes possible continued representation of
the Company, or the engagement of other firms having no prior
background or relationship with the Company, and also to give
further consideration to the possible engagement of Covington or
another financial advisory firm.
On May 11, 2010, another telephonic meeting of the special
committee was convened. In addition to the members of the
special committee and at their invitation, representatives of
Skadden and McLane attended the meeting. At this meeting, the
special committee unanimously determined that McLane should
continue to represent the Company with respect to the Swenson
Proposal and related matters, and that Skadden and Covington
would be retained as the special committees independent
special counsel and independent financial advisor, respectively.
With respect to McLanes continued representation of the
Company, it was determined that McLanes estate planning
services for Mr. Swenson and his brother and its brief and
immaterial services for Parent on an intellectual property
matter were not disabling conflicts or otherwise relevant to
McLanes ability to effectively represent the Company with
respect to the Swenson Proposal and related matters. The special
committee considered McLanes in-depth knowledge of the
Companys operations, coupled with its excellent working
23
relationship with the Companys senior management, as
positive factors that would benefit the Company and its
stockholders in responding to the Swenson Proposal and in any
process that might be initiated to explore strategic
alternatives. The special committee also concluded that
Skaddens prior representation of the Company in various
matters prior to March 2009 would in no way compromise
Skaddens ability to provide independent, objective and
vigorous representation of the special committee. The
firms experience in representing special committees of
public companies, along with its knowledge of the Company and
the members of the special committee familiarity with and
confidence in the Skadden partner that would lead the
engagement, were also important factors in the special
committees unanimous decision to engage Skadden as its
legal advisor.
With respect to Covington, the special committee concluded that
its previous engagement by the Company meant that Covington
already had a detailed knowledge of the Companys business
and financial strategy, and thus it would be well positioned to
work efficiently. This fact, along with the excellent service
and advice provided by Covington to the Company during the
Companys earlier consideration of strategic and business
alternatives that resulted in the sale of the retail division,
were also important factors in the special committees
unanimous decision to select Covington as its independent
financial advisor. After reviewing Covingtons prior
representation of the Company, the special committee concluded
that Covington would be able to provide objective and
independent advice to the special committee in connection with
this engagement.
On May 14, 2010, another telephonic meeting of the special
committee was convened. In addition to the members of the
special committee, representatives of Skadden and McLane
attended the meeting. At this meeting, the special committee
reviewed and discussed draft protocols, rules and procedures
developed by Skadden, to be agreed to by Parent, on behalf of
itself and certain members of Parent identified in the Swenson
Proposal, including Kurt Swenson (together with Parent, the
Swenson Group), with respect to Parents
pursuit of its acquisition proposal, including interactions by
officers and representatives of Parent with the Company, Company
management and Company shareholders regarding due diligence,
employment matters, disclosure and other matters. These
protocols, rules and procedures outlined the special
committees understanding of how the Swenson Group would be
required to conduct themselves in pursuing the Swenson Proposal,
with the objective of, among other things, achieving an
evenhanded, orderly and efficient process for dealing with the
Swenson Proposal and, if applicable, other proposals that might
be considered by the special committee. Among other things,
these protocols, rules and procedures required the Swenson Group
to assure the confidentiality of Company information received by
it and provided by the Swenson Group to potential investors or
lenders, keep the special committee and its advisors apprised of
such information so provided, forward to the special committee
and its advisors any inquiries, offers, proposals,
solicitations, bids or other related communications from any
prospective third party acquirer or group received by any member
of the Swenson Group pertaining to the acquisition of the
Company or any of its securities or assets, and allow the
special committee to designate a representative to be present at
meetings involving any member of the Swenson Group and potential
lenders or investors at which Company information was expected
to be discussed. These protocols, rules and procedures also
prohibited the Swenson Group from discussing with members of the
Companys management any employment, retention or equity
incentive arrangements. The special committee also reviewed and
approved the engagement letters finalizing the engagements of
Skadden and Covington and discussed the next steps with respect
to the Swenson Proposal.
Following this meeting, after further discussions between
Skadden and Sheehan Phinney, a letter embodying the protocols,
rules and procedures described above was executed by Chairman
Fox, on behalf of the special committee, and Kurt Swenson, on
behalf of the Swenson Group, on May 18, 2010 with effect as
of May 14, 2010. A confidentiality agreement between Parent
and the Company, which was contemplated by this letter, was also
executed on and as of the same dates.
Also on May 14, 2010, Covington met with the Companys
senior management at the Companys headquarters in Barre,
Vermont to conduct an on site due diligence review
of the Companys operations.
On May 18, 2010, at the request of the special committee, a
special telephonic meeting of the board of directors was held to
more fully set forth the nature and scope of the special
committees authority with respect to the Swenson Proposal
and related matters. In addition to all of the directors,
representatives of
24
Skadden and McLane attended the meeting. At this meeting, the
board of directors unanimously authorized the special committee
to take any and all actions arising out of or relating to the
Swenson Proposal as the special committee deemed to be in the
best interest of the Company and its shareholders, including
shareholders who were not affiliated with Parent. Pursuant to
this authority the special committee was empowered to engage, in
its sole discretion, in a strategic alternatives exploration
process to solicit alternative transactions to the Swenson
Proposal for the acquisition of all or a majority of the
outstanding common stock of the Company or of all or a
significant portion of the Companys assets. The board of
directors also authorized the special committee to evaluate and
negotiate the terms of the Swenson Proposal or any alternative
proposal received as a result of the special committees
strategic alternatives exploration process, and to recommend to
the board of directors, what action, if any, should be taken
with respect to the Swenson Proposal or any such alternative
proposal, and also ratified and confirmed the special
committees actions to date, including the retention of
financial advisors and legal counsel. The board of directors
also resolved to not recommend or approve the Swenson Proposal
or any alternative proposal received as a result of any
strategic alternatives exploration process undertaken by the
special committee, without a prior favorable recommendation of
such proposal by the special committee.
In consideration of the substantial time and effort that would
be required of the members of the special committee generally,
and the chairman of the special committee in particular, the
board of directors also determined that the chairman of the
special committee would receive a one-time fixed fee of $50,000
and each other member of the special committee would receive a
one-time fixed fee of $35,000, as compensation for their service
on the special committee, irrespective of whether or not the
special committee approved the Swenson Proposal or any
alternative transaction. These fees were paid by the Company to
the special committee members on June 28, 2010. In
addition, the board of directors approved the reimbursement to
the members of the special committee of reasonable expenses
incurred by them in connection with their service on the special
committee.
On May 20, 2010, a telephonic meeting of the special
committee was convened. In addition to the members of the
special committee, representatives of Skadden and Covington
attended the meeting. Covington provided the special committee
with an overview of its initial analysis of the Company, and its
business and prospects, based on its May 14th visit to
the Company and discussions with the Companys management.
Covington also provided the special committee with its
preliminary analysis of the Swenson Proposal and the market for
possible strategic alternatives. After reviewing and considering
Covingtons overview of the Company and its preliminary
views regarding possible strategic alternatives to the Swenson
Proposal, the special committee concluded that it would be in
the best interests of the Company and shareholders who were not
affiliated with the Swenson Group, to explore strategic
alternatives to the Swenson Proposal. Accordingly, the special
committee unanimously resolved that, with the assistance of
Covington, it would commence a process to explore and consider
possible strategic alternatives for the Company while continuing
to consider the Swenson Proposal. At the
May 20th meeting, the special committee also discussed
engaging Dinse, Knapp & McAndrew, P.C.
(Dinse) of Burlington, Vermont to serve as the
special committees special Vermont counsel. Subject to
Skadden confirming that Dinse had no disabling conflicts of
interest in the matter, the members of the special committee
unanimously agreed to retain Dinse as special Vermont counsel to
the special committee. Dinse was formally engaged by the special
committee pursuant to an engagement letter dated May 24,
2010.
On May 20, 2010, the Company issued a press release
announcing the special committees decision to commence a
process to explore and consider possible strategic alternatives
to the Swenson Proposal and its engagement of Covington and
counsel.
Between May 20 and June 2, 2010, Covington continued its
due diligence review of the Company.
On May 25, 2010, the Company issued a press release
announcing that a purported class action shareholder suit had
been filed on May 19, 2010, in Vermont Superior Court,
Washington County. The complaint named as defendants the
Company, all the directors and certain officers of the Company,
and Parent. The plaintiff, Todd Semon, alleges in the complaint
that, among other things, the directors and named officer
defendants of the Company breached their fiduciary duties in
connection with the Swenson Proposal, that the
25
proposed consideration offered by Parent was inadequate, and
that the Swenson Group, which includes controlling shareholders
of the Company, would benefit from the proposed transaction to
the detriment of the Companys other shareholders. The
shareholder litigation is more fully described under the heading
SPECIAL FACTORS Litigation Related to the
Merger on page 62.
On June 2, 2010, a telephonic meeting of the special
committee was held. In addition to all the members of the
special committee, representatives of Skadden and Covington
attended the meeting. Covington reviewed with the special
committee previously distributed presentation materials
regarding Covingtons analysis of the Companys
operations and future profitability and the market for possible
strategic alternatives. Based on its due diligence, Covington
concluded that the best strategic alternative available to the
Company would be the sale of the Company to either a strategic
or financial buyer if a transaction could be developed which was
fair and in the best interests of the Company and its
shareholders, including shareholders unaffiliated with Parent.
After further considering Covingtons presentation and its
recommendation, the special committee directed Covington to
proceed with contacting various potential strategic and
financial buyers identified in its presentation materials to
inquire about their interest, if any, in pursuing a possible
transaction with the Company.
On June 10, 2010, Parent was provided access to an on-line
data room set up by the Company, and continued its ongoing
financial and operational due diligence.
On June 16, 2010, Covington participated in a due diligence
meeting requested by Parent in Barre, Vermont. Kurt Swenson and
Robert Pope participated in this meeting on behalf of Parent,
and Donald Labonte and Laura Plude, the Companys Chief
Financial Officer, participated on behalf of the Company.
Commencing in July, and continuing through August 19, 2010,
Parent held a series of telephone conferences and face to face
meetings with four prospective lenders to discuss and explore
the terms and structure of possible financing for the Swenson
Proposal. The prospective lenders included the Companys
two existing lenders. During this period, these prospective
lenders also engaged in preliminary due diligence of Parent and
the Company.
On July 1, 2010, following a series of letters and emails
between Skadden and plaintiff Todd Semons counsel, Wolf
Popper LLP (Wolf Popper), Skadden and Covington
received valuation analyses and other materials from Wolf
Popper, purporting to show that the Swenson Proposals
$4.38 per share price substantially undervalued the Company.
This correspondence, these valuation analyses, and
Covingtons and the special committees review and
conclusions regarding these valuation analyses, are described in
detail under SPECIAL FACTORS Litigation
Related to the Merger.
On July 8, 2010, another telephonic meeting of the special
committee was convened. In addition to all of the members of the
special committee, Skadden and Covington attended this meeting.
At this meeting, Covington reviewed with the special committee
the solicitation process it had undertaken in which it had
contacted 64 potentially interested parties, including Parent,
since June 2nd, and the responses of the contacted parties. Of
these 64 parties, comprised of 54 financial and
10 strategic parties, 35 parties had declined the
opportunity, 11 parties had failed to respond after being
contacted numerous times and 18 parties continued to express
some level of interest. As next steps, Covington recommended,
and the special committee approved, Covingtons continuing
to work the potentially interested parties list, soliciting
potentially interested parties to schedule management meetings
and calls within the ensuing two weeks, and sending a letter
during the week of July
12
th
to
remaining interested parties inviting them to submit non-binding
indications of interest by July
29
th
.
At the special committee meeting on July 8, 2010, Covington
also reviewed with the special committee its analysis of the
valuation analyses provided by Wolf Popper, which valuation
analyses were distributed to the special committee members in
advance of the meeting. Covington noted certain key, and, what
it considered, unjustified, assumptions in the valuations
provided by Wolf Popper that resulted in per share value ranges
for the Company common stock that were well above the value
ranges arrived at by Covington when it conducted similar
analyses. For a more complete description of Covingtons
analysis, and the special
26
committees conclusions, regarding the valuations provided
by Wolf Popper, see SPECIAL FACTORS Litigation
Related to the Merger.
On July 14, 2010, Covington distributed an indication of
interest procedures letter to eight parties, including Parent,
which, because ten additional parties had withdrawn from the
process between the July
8
th
special committee meeting and July
14
th
,
were all of the parties who remained interested in acquiring the
Company as of that date. Of these eight parties three, including
Parent, were strategic parties and five were financial parties.
The letters invited the submission of nonbinding indications of
interest by July 29, 2010.
On July 22, 2010, Sheehan Phinney obtained access to the
on-line data room and continued its legal diligence on behalf of
Parent.
On July 27, 2010, Covington had a teleconference with Kurt
Swenson and Robert Pope to discuss Parents possible
submission of an indication of interest (IOI) in
response to Covingtons invitation. Messrs. Swenson
and Pope advised Covington that Parent anticipated submitting an
IOI at the same $4.38 per share price as in the original Swenson
Proposal, and requested that Covington include Parent in any
further round of bidding. Covington indicated that it was unable
to predict what IOIs would be submitted by the July
29
th
deadline and at what value levels, and that after reviewing the
submissions, it would meet with the special committee and
determine how to proceed with a view to maximizing value for the
Companys shareholders.
By July 29, 2010, the deadline to submit nonbinding
indications of interest, Covington had received only two IOIs.
One IOI was submitted by Parent at the same $4.38 per share
price as the Swenson Proposal submitted in May 2010 (the
Parent IOI). The other IOI was submitted by a
private equity firm that proposed to acquire only the
Companys manufacturing business at a price range of
$7-9 million.
On August 3, 2010, Covington, Kurt Swenson and
Mr. Pope had a teleconference during which Covington sought
to clarify certain aspects of the Parent IOI. During this
discussion, Mr. Swenson and Mr. Pope reaffirmed the
$4.38 per share price set forth in the Parent IOI, but indicated
that, depending on the circumstances as the process unfolded, it
was possible that Parent might have some price flexibility.
Mr. Swenson and Mr. Pope also indicated that if Parent
and the Company were able to reach agreement on price and other
terms for a transaction, it would be important to seek to obtain
the support of the Companys most significant institutional
investors. Mr. Swenson and Mr. Pope also confirmed
that Parent was making progress with respect to obtaining
financing to fund the proposed transaction, stating that Parent
hoped to have firm commitments from lenders by the end of the
month.
On August 4, 2010, the special committee held another
telephonic meeting. In addition to all of the members of the
special committee, representatives of Skadden and Covington
attended this meeting. At this meeting, Covington again reviewed
the solicitation process it had undertaken, including
Covingtons discussions with potentially interested
parties, as well as the fact that Covington had encouraged such
parties to make a bid for less than the entire company, if they
so desired. Covington then reviewed with the special committee
the Parent IOI and the other IOI it had received. In
Covingtons view, the IOI from the private equity firm that
proposed to acquire only the Companys manufacturing
business was a non-viable proposal as compared to Parents
IOI or to the Company continuing as a public company. Covington
noted that the offer price for the manufacturing division was
not competitive with the value for that division implied by the
$4.38 per share offer price in Parents IOI, and disposing
of manufacturing would result in the Company continuing to have
the burdens and expense of being a public reporting company with
the same, or worse, strategic and operational issues and risks,
and the same, or worse, illiquidity of its stock, as it then
faced. Skadden also reviewed with the special committee the
various terms and conditions included in the Parent IOI that the
Swenson Group expected would be included in a definitive merger
agreement between the parties. In light of the fact that only
one viable IOI had been received, Skadden reiterated to the
special committee that they were under no affirmative obligation
to approve or recommend the proposed transaction with Parent,
and the special committee considered that fact.
After further considering the advice and information provided by
Covington and Skadden, at its meeting on August 4, 2010,
the members of the special committee decided not to pursue at
that time the IOI submitted by the private equity firm to
acquire only the Companys manufacturing division, noting
that moving forward with the Parent IOI by no means foreclosed
any alternative that might be or become available to the
Company,
27
including continuing to operate as a public company. At this
meeting, the special committee instructed its advisors to
contact Parent and its counsel to further discuss the terms of
the Parent IOI and, in particular, to determine the status and
likelihood of success of Parents efforts to secure
financing for the transaction, and to confirm that Parent
understood that the special committee would likely require an
increase in the per share price reflected in Parents IOI
and minimal conditions to Parents obligation to close,
with a view to determining whether to proceed to try to
negotiate a definitive transaction agreement with Parent. The
advisors were instructed to report to Chairman Fox the results
of their discussions with Parent and its counsel, who would then
determine, on behalf of the special committee and after
consultation with the other members of the special committee,
whether to engage further with Parent and its counsel based on
Parents IOI.
During this August 4th meeting of the special committee,
Covington also reviewed with the special committee certain
presentation materials regarding the aforementioned valuation
analyses provided by Wolf Popper. These presentation materials
essentially summarized the oral presentation Covington had
provided to the special committee on this same topic at its
July 8, 2010 meeting and confirmed the deficiencies and
lack of credibility of these valuations. In addition, Covington
addressed a purported valuation of Rock of Ages set forth in a
letter dated July 23, 2010 to the special committee from a
shareholder of the Company who indicated in the letter that he
owned 156,000 shares of the Company. Covington noted that this
purported valuation, which yielded a value range of
$13.74-$17.74 per share of Company common stock, was based on
assumptions and valuation methodologies that were both
inaccurate and unclear. In particular, Covington highlighted
that the purported valuation utilized a price/earnings multiple
of ten without support or explanation, and applied that to
estimated earnings of $.55 per share to arrive at an estimated
price for the common stock of $5.50 per share. Also, in this
purported valuation, again without support or explanation and
resulting in double counting wholly inconsistent
with accepted valuation methodologies, the shareholder
separately added to this $5.50 per share his estimate of a range
of $6.00 to $10.00 per share for the value of the Companys
quarries and, again applying a price/earnings multiple of ten,
$2.24 per share reflecting approximately $11.6 million
($1.16 million annually) in interest savings resulting from
assumed and unexplained future debt repayment and
$5 million ($500,000 annually) in cost savings from ceasing
to be a public company. Based on Covingtons analysis, the
special committee concluded that this purported valuation was
not credible and did not rely on it in any manner.
On August 5, 2010, in accordance with the special
committees instructions, Covington had a teleconference
with Kurt Swenson and Robert Pope. They discussed the status of
Parents financing efforts, and Messrs. Swenson and
Pope indicated that Parent expected to receive by
August 15, 2010 a term sheet from Peoples United
setting forth the terms of financing for the proposed
transaction. Mr. Swenson also indicated that, while he
could not agree or make any commitment at this time, he
anticipated that if an acceptable definitive acquisition
agreement could be negotiated and financing secured, and further
assuming that the Company continued to perform at or better than
plan levels and that the number of Company shares which
Parents members elected to contribute to Parent in
exchange for additional shares of membership interest in Parent
was substantially as expected, he anticipated that Parent would
likely have some measure of flexibility regarding an increase in
its proposed acquisition price.
On August 9, 2010, representatives of Skadden contacted
Sheehan Phinney and discussed various terms, most importantly,
the closing conditions, included in Parents IOI. They
emphasized that in order for the special committee to approve a
definitive agreement with Parent, in addition to a fair price
being obtained and the transaction being approved by a majority
of the outstanding shares of Class A common stock held by
shareholders who were not affiliated with Parent, the Company
and its shareholders would need to have a high degree of
certainty that the transaction would be consummated. Sheehan
Phinney indicated that Parent would agree to requiring a
majority vote of the outstanding shares of Class A common
stock held by shareholders who were not affiliated with Parent
to approve the transaction and understood the special
committees need for substantial certainty regarding
closing.
Based on the favorable report of these discussions from
Covington and Skadden, Chairman Fox, after consultation with the
other members of the special committee, directed Skadden to
prepare a draft merger agreement for distribution to Parent and
its counsel.
28
On August 20, 2010, Covington received via email a letter
from Kurt Swenson summarizing Parents progress to date in
procuring financing for the proposed transaction. The letter
noted that after approaching several lenders all of whom were
interested in providing financing to Parent for the proposed
transaction, Parent had chosen to pursue a credit facility with
Peoples United as its lead lender based on a non-binding
proposal from Peoples United dated August 19, 2010
that contemplated a $50 million loan facility to fund the
proposed acquisition and pay transaction expenses, as well as to
fund working capital, capital expenditures and other operational
needs of the combined companies going forward.
On August 27, 2010, Covington had a teleconference with
Kurt Swenson and Robert Pope to discuss the status of
Parents financing efforts, and the likely timing for
Parent to receive a binding commitment letter from Peoples
United and to negotiate definitive forms of loan agreements.
On August 30, 2010, Peoples United provided Parent
with a lender due diligence letter. On
September 1, 2010, the letter was provided to Covington and
Skadden for distribution to the special committee. The letter
confirmed that Parent had accepted the non-binding
August 19, 2010 proposal provided by Peoples United.
The letter also outlined the conditions to closing the
acquisition financing and confirmed Peoples United view
that there was a high probability that financing for
the acquisition of the Company would be made available to Parent
on the terms previously provided to Parent.
From the end of August 2010 through September 2010,
Peoples United conducted a due diligence review of the
Company and Parent. During this time, through the evening of
October 17, 2010, Sheehan Phinney, on behalf of Parent,
negotiated with lenders counsel, Blank Rome LLP
(Blank Rome), the terms and conditions of a
commitment letter and the form of definitive loan agreements for
the proposed credit facility.
On September 1, 2010, Skadden provided Sheehan Phinney with
a draft of a merger agreement for the proposed transaction.
On September 8, 2010, another telephonic meeting of the
special committee was convened. In addition to all of the
members of the special committee, representatives of Skadden and
Covington attended this meeting. Covington gave an overview of
Parents progress toward obtaining financing, including
Parents selection of Peoples United as the lead bank
and Peoples Uniteds selection of Key Bank, as the
second lender, and reviewed with the special committee the
August 30, 2010 lender due diligence letter
provided by Peoples United to Parent. Skadden then updated
the special committee on the status of the draft merger
agreement sent to Sheehan Phinney on September 1, 2010.
Skadden also discussed with the special committee the main
issues that were likely to arise out of Sheehan Phinneys
review of the draft merger agreement, including, most
importantly, the minimal conditions to closing included in the
draft. After further considering the information provided by
Covington and Skadden on the status of the proposed transaction,
the special committee reiterated its view that there would need
to be a significant increase in the proposed acquisition price
in order for the special committee to approve and recommend the
proposed transaction with Parent to the Companys board of
directors and shareholders.
On September 10, 2010, Parent received a letter from
Peoples United regarding its offer to finance the proposed
acquisition of the Company. This interim commitment
letter contained the key terms of the proposed $50 million
credit facility.
On September 14, 2010, Parent sent a letter to
Peoples United responding to the interim
commitment letter. In the September 14 response letter, Parent
reiterated that in order for a merger agreement to be entered
into with the Company, Parent would need to have an updated
commitment letter, with definitive financing agreements attached
as exhibits, in place with Peoples United at or prior to
the time of signing the merger agreement.
Also on September 14, 2010, Parent provided the
interim commitment letter and its September
14
th
response letter to Covington. On September 17, 2010,
Covington reviewed the terms of the proposed credit facility
with the Companys Chief Financial Officer.
On September 15, 2010, Sheehan Phinney provided Skadden
with its comments to the draft merger agreement.
29
On September 20, 2010, a telephonic meeting of the special
committee was convened. In addition to all of the members of the
special committee, representatives of Skadden and Covington
attended this meeting. Covington reviewed with the special
committee the terms of the proposed credit facility, as outlined
in the interim commitment letter from Peoples
United, a copy of which, together with Parents September
14
th
response letter, had been distributed to the members of the
special committee prior to the meeting. Covington noted that
based on its initial review and its discussion with the
Companys Chief Financial Officer, the terms of the
proposed credit facility appeared to be comparable to or more
favorable than the terms of the Companys current credit
facility. Skadden then reviewed with the special committee the
comments received from Sheehan Phinney on the draft merger
agreement. Skadden noted that there were a number of material
issues that needed to be resolved, including pricing for the
deal, conditions to closing and expense reimbursement and other
remedies upon termination of the merger agreement under various
circumstances. Skadden noted that a call to attempt to resolve
these outstanding issues was scheduled for the next day.
On September 21, 2010, representatives of Skadden, on
behalf of the special committee, discussed and negotiated the
draft merger agreement with Sheehan Phinney by telephone. Based
on the parties discussion, and after consultation with
Chairman Fox, Skadden circulated a revised draft of the merger
agreement to Sheehan Phinney later that day.
On September 28, 2010, Sheehan Phinney provided Skadden
with a markup of the draft merger agreement that Skadden had
provided to them a week earlier. A telephonic meeting was held
later that day between Skadden and Sheehan Phinney to further
negotiate the terms of the agreement. Kurt Swenson,
Mr. Pope, Chairman Fox and a representative of Covington
also attended this meeting. This discussion focused on, among
other terms, conditions to closing and expense reimbursement and
other remedies upon termination of the merger agreement under
various circumstances. Later that day, Skadden discussed by
telephone various provisions of the draft merger agreement with
Peoples Uniteds counsel, Blank Rome.
On September 29, 2010, the special committee held another
telephonic meeting. In addition to all of the members of the
special committee, Skadden and Covington attended this meeting.
Covington provided the special committee with an update on
Parents progress to date toward obtaining financing. Based
on information provided earlier to Covington by Parent, several
preliminary conditions precedent to the closing of the
acquisition financing had been met. Skadden then discussed with
the special committee the status of the draft merger agreement,
including the comments received from Sheehan Phinney on
September 28, 2010. Skadden acknowledged that the
parties negotiations on the various representations,
warranties and conditions in the draft merger agreement would
continue to evolve alongside Parents negotiations with
Peoples United on the terms and conditions of the draft
financing agreements. After further considering the progress
made to date, the special committee reviewed with its advisors
next steps to continue forward with a possible transaction with
Parent.
After the special committees meeting on September 29,
2010, Skadden and Sheehan Phinney held another telephonic
meeting to discuss and further negotiate outstanding issues in
the merger agreement. Based on the outcome of these
negotiations, on September 30, 2010, Skadden circulated a
revised draft of the merger agreement to Sheehan Phinney.
Between September 30, 2010, and October 15, 2010,
Skadden and Sheehan Phinney continued to discuss and negotiate
the draft merger agreement.
During the week of October 4, 2010, Skadden had discussions
with Chairman Fox and Covington, and with Sheehan Phinney,
regarding possible timing for a special committee and board of
directors meeting to approve a transaction, if agreement could
be reached on price and other remaining open issues, and if the
bank commitment letter and the form of definitive credit
agreement to be attached thereto could be finalized. There was
preliminary concurrence on a target date of October 15,
2010 for these meetings. During that week, Sheehan Phinney
continued negotiations with Blank Rome with respect to the bank
commitment letter and related loan agreement.
On Monday, October 11, 2010, Covington met with Kurt
Swenson and Mr. Pope at Parents offices in Concord,
New Hampshire. Covington reviewed with them various balance
sheet and operating results assumptions on which Parent had
based its $4.38 per share offer, as set forth in the original
Swenson Proposal and the Swenson IOI, noting that the
Companys actual 2010 nine-month results and expected
2010 year end
30
results and financial position were more favorable than
Parents assumptions and supported a price greater than
$4.38 per share. Covington did not, however, have a balance
sheet for the period ending September 30, 2010 which
Mr. Pope and Mr. Swenson said was critical for their
analysis of funds that could be available to support a possible
price improvement. Covington also pointed out that, since under
the merger agreement the majority of the minority approval would
need to be obtained to consummate the merger, in their view a
meaningful increase to their $4.38 per share offer
in all likelihood significantly into the $5.00 per share
range could well be necessary to be reasonably
confident that that vote requirement would be met. No agreement
on price was reached at this meeting. However, Mr. Swenson
indicated that, in light of Covingtons discussion, and
once he had the September 30 balance sheet of the Company and a
more complete understanding of the total number of shares of
Company common stock that members of Swenson Granite intended to
contribute to Parent in exchange for additional shares of
membership interest in Parent, and thus could re-evaluate
Parents overall cash requirements and borrowing capacity
under the proposed loan facility with Peoples United and
Key Bank, he believed Parent might be able to revise its offer
to at least $5.00 per share. He noted that, of course,
definitive loan agreements needed to be finalized and a
definitive commitment letter executed by the lending banks.
Mr. Swenson also indicated that, especially in light of the
majority of the minority vote that would be required for the
transaction to be consummated, it would be important for Parent,
prior to entering into a definitive agreement, to have an
indication as to whether a transaction at a particular price or
within a range of prices would be viewed favorably by the
Companys most significant institutional investor.
Covington indicated that this was also important to the special
committee as a matter of obtaining reasonable certainty as to
shareholder approval and thus as to closing, and the special
committee had planned that Covington would seek to have a
meeting and confidential discussion with representatives of that
institutional investor for this purpose later in the week.
This same day, Covington reported the results of its meeting
with Mr. Swenson and Mr. Pope to Chairman Fox and
Skadden. Based on this, Chairman Fox instructed Skadden to
advise the other members of the special committee to plan for
convening a special committee meeting on Friday afternoon,
October 15, 2010, to consider a transaction with Parent,
and to advise McLane that, assuming the special committee
approved a transaction, a meeting of the board of directors
would be convened immediately following the special committee
meeting to consider the transaction. Chairman Fox noted his
expectation that, prior to the special committee meeting,
further negotiations with Mr. Swenson could achieve a price
significantly into the $5.00 per share range.
For the remainder of that week Skadden worked with Sheehan
Phinney to finalize the merger agreement and its exhibits. In
addition, materials for the special committee and board meeting
were prepared and distributed to the directors.
On October 14, 2010, Parent received a revised draft of a
definitive commitment letter and credit agreement from
Peoples United. Copies of these drafts were provided to
Skadden later that day, and forwarded to the Companys
directors as part of the information and materials for the
scheduled special committee and board meetings the following
afternoon. On that same day, as instructed by the special
committee and on its behalf, a representative of Covington met
with representatives of the affiliated institutional investors
which hold a substantial number and percentage of the
outstanding shares of Class A common stock, and had a
confidential discussion regarding their willingness to support
an acquisition of the Company by Parent at price ranges above
the $4.38 per share price initially proposed by Parent and which
had not yet been revised. The representatives of these investors
indicated to the representative of Covington that they would
contact him after considering and discussing the matter amongst
themselves. In the evening on that same day, the representative
of Covington received a telephone call from one of the
representatives of the affiliated institutional investors,
indicating that, if a price into the $5.00 per share range could
be negotiated, he anticipated that he could be supportive of the
transaction.
In the morning of October 15, 2010 at approximately
10:00 a.m., a meeting of the members of Parent was convened
at Parents offices in Concord, New Hampshire. At this
meeting, Parents proposed acquisition of the Company
pursuant to the merger agreement was approved by Parents
members. Also at this meeting, Parent finalized with its members
the number of shares of Company common stock that each member
had elected to contribute to Parent in exchange for additional
shares of membership interest in Parent, and the
31
contribution agreements reflecting these elections, as well as
the voting agreements, were entered into, to become effective
upon the execution and delivery of the merger agreement.
Shortly after noon on this same day, a representative of
Covington, after consultation with Chairman Fox, telephoned Kurt
Swenson and advised him that he believed the special committee
would approve the proposed transaction and recommend its
approval by the board if the proposed merger consideration were
increased to $5.50 per share. The Covington representative also
advised Mr. Swenson that he believed the Companys
most significant institutional shareholder would support the
transaction at that price.
Shortly after this call with Covington, Mr. Swenson
participated with Sheehan Phinney on a conference call with
Skadden in order to resolve the other remaining open matters on
the merger agreement and the related disclosure schedule,
including the appraisal rights condition to closing
and the Companys estimate of transaction expenses. At the
outset of this call, Mr. Swenson informed the
representative of Skadden that Parent could not agree to $5.50
per share, and that Parents maximum offer was $5.07 per
share. During the remainder of this call, the remaining items on
the merger agreement and the disclosure schedule intended to be
addressed on the call were resolved, other than the appraisal
rights condition, as to which it was agreed that it would be
settled later if an agreement on price could be reached.
Shortly after this call, the Skadden representatives met with
Chairman Fox who had arrived at Skaddens Boston office
early for the scheduled special committee meeting. They
discussed Mr. Swensons revised offer price, and
placed calls to the representative of Covington who had spoken
with Mr. Swenson earlier, and who was then traveling by air
from New York to Boston, to obtain his input and recommendation
as to how to respond to Mr. Swenson. Pending his
availability, Chairman Fox requested that the meeting of the
special committee be convened in order to cover those aspects of
the transaction that could properly be reviewed and considered
while a final price was still being negotiated. Accordingly, at
approximately 3:45 p.m. on October 15, 2010, a meeting
of the special committee was convened at the offices of Skadden
in Boston, Massachusetts. Chairman Fox and Ms. Sheiffer
were present in person for the meeting, with Dr. Webster
participating by telephone. A representative from Dinse was
present for the preliminary portion of the meeting while Skadden
was present for the duration of the meeting. Covington joined
the meeting later in the early evening after the parties reached
a final agreement as to the merger consideration.
During this initial part of the meeting, Skadden provided the
special committee with an overview of the terms of the proposed
merger agreement. With the exception of the merger
consideration, the parties had tentatively agreed to these terms
for the proposed transaction. Dinse also provided the special
committee with a presentation on the special committee
members fiduciary duties under Vermont law for the
proposed acquisition.
During this part of the meeting, the Covington representative
arrived at Covingtons office in Boston, Massachusetts and
the special committee and Skadden had several conference calls
with Covington to discuss the possible rationales for
Mr. Swensons statement that $5.07 per share was the
maximum Parent could pay.
After further phone discussions between Covington and
Mr. Swenson, who was then traveling by car from
Parents office to Skaddens office for the Board
meeting scheduled at 4:00 p.m., Covington called into the
special committee meeting and reported that, after additional
discussion and review of Parents cash needs to accomplish
the transaction and borrowing capability under the Peoples
United loan facility, Mr. Swenson had agreed, as his best
and final offer, to increase the merger consideration to $5.20
per share. Mr. Swenson indicated to Covington that the
holders of Company shares who were part of the Swenson Group had
elected to receive cash, instead of contributing their Company
shares to Parent in exchange for additional shares of membership
interest in Parent, in an amount greater than previously
expected. As a result, a greater amount of the acquisition
financing than he had anticipated would need to be devoted to
the cash merger consideration.
After discussion with Covington and Skadden, the special
committee members agreed that Mr. Fox should meet with Kurt
Swenson to attempt to negotiate a final price of at least $5.25
per share. The special committee took a break at this point in
time to allow Chairman Fox to meet with Kurt Swenson, who had
arrived at Skaddens offices in order to attend the board
meeting that had been tentatively scheduled for 4:00 p.m.
Chairman Fox met alone with Kurt Swenson in a private office at
Skadden at approximately 5:30 pm. Mr. Fox
32
advised Mr. Swenson that the special committee would not
support a transaction unless the price was raised to at least
$5.25 per share. Mr. Swenson advised Mr. Fox that the
required cash to fund the acquisition had increased
significantly due to fewer Company shares being contributed to
Parent in exchange for additional shares of membership interest
in Parent interests than expected, as well as the increase up to
the $5.20 per share price he had already made. He advised
Mr. Fox that if he were to increase the price to $5.25, it
would be the final offer and he needed reasonable assurance that
(1) it was the last increase that would be requested by the
special committee and (2) that to the best of
Mr. Foxs knowledge based on discussions with
Covington, the $5.25 price and the merger transaction would be
supported by the Companys most significant institutional
investor. Mr. Fox responded that he would recommend that
the other members of the special committee vote to approve the
transaction at the $5.25 price, and that, based on his
discussions with Covington, the institutional shareholder
support for the transaction at that price would be forthcoming.
Mr. Swenson, on behalf of Parent, agreed to the merger
consideration of $5.25 per share as Parents final offer.
The special committee reconvened at approximately
6:45 p.m., after Chairman Fox returned from his
negotiations with Mr. Swenson and the representatives of
Covington arrived at the offices of Skadden. Covington gave a
presentation with respect to the financial aspects of the
proposed transaction and delivered its opinion, that as of that
date, the proposed merger consideration to be received by the
Companys shareholders in the merger was fair, from a
financial point of view, to such holders. After further
considering the proposed price of $5.25 per share, the terms of
the merger agreement, the various presentations of Covington,
Skadden and Dinse, and such other factors, considerations,
documents, information and advice as the special committee
deemed necessary or appropriate, the special committee
unanimously determined that the merger was fair to and in the
best interest of the Companys shareholders to the extent
such shareholders shares of common stock are converted in
the merger into the right to receive the merger consideration.
Contingent upon a definitive commitment letter being executed by
Parent and Peoples United and a copy thereof being
provided to the Company, the special committee also unanimously
adopted the merger agreement and recommended that shareholders
of the Company vote in favor of approval of the merger agreement
at a special meeting of the Companys shareholders. Subject
to receipt of a copy of the executed definitive commitment
letter, the special committee also unanimously recommended to
the board of directors that it adopt the merger agreement and
that it recommend to the Companys shareholders that they
vote in favor of approval of the merger agreement.
The October 15, 2010 meeting of the special committee was
followed immediately by a special meeting of the Companys
board of directors which was called to order at approximately
7:45 p.m. All members of the board were present for the
meeting, including Dr. Webster, who again participated by
telephone. At the invitation of the board, representatives from
Skadden, McLane and Covington were also present. At this
meeting, McLane discussed the directors fiduciary duties
under Vermont law in connection with the proposed transaction.
Skadden provided the board with an overview of the terms of the
final draft merger agreement. Chairman Fox presented the special
committees recommendations to the board of directors with
respect to the merger agreement. Covington then provided the
board of directors with a presentation regarding the financial
aspects of the proposed transaction and reiterated its opinion
previously given to the special committee regarding the fairness
of the proposed merger consideration. After considering the
special committees recommendations, the terms of the
proposed merger agreement, the presentations by McLane, Skadden
and Covington, and such other factors, considerations,
documents, information and advice as the board of directors
deemed necessary or appropriate, the board of directors
unanimously determined that the merger was fair to and in the
best interests of the Companys shareholders to the extent
such shareholders shares of common stock are converted in
the merger into the right to receive the merger consideration.
Contingent upon a definitive commitment letter being executed by
Parent, Peoples United and Key Bank and a copy thereof
being provided to the Company, the board of directors also
unanimously adopted the merger agreement and recommended to
shareholders that they vote in favor of approval of the merger
agreement at a special meeting of the Companys
shareholders.
The board of directors then adjourned its meeting at
approximately 10:00 p.m.
Following further negotiations between Parent and Peoples
United on October 16th and 17th, in the evening on October
17th, Parent, Peoples United and Key Bank executed a
definitive commitment letter, a
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copy of the letter was provided to the Company and to Skadden on
behalf of the special committee, and the signature pages to the
merger agreement were released to effect the execution of the
merger agreement.
On October 18, 2010, prior to the opening of trading on The
NASDAQ Global Market, Rock of Ages issued a press release
announcing that it had entered into the merger agreement.
Recommendations
of the Special Committee and the Board of Directors; Reasons for
Recommending Approval of the Merger Agreement to the
Companys Shareholders
The special committee of the board of directors of Rock of Ages
has unanimously determined that the merger is fair to and in the
best interests of the Companys shareholders, to the extent
such shareholders shares of common stock are converted in
the merger into the right to receive the $5.25 per share merger
consideration.
Additionally, the special committee unanimously adopted the
merger agreement, recommends that the Companys
shareholders approve the merger agreement and recommended that
the board of directors:
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determine that the merger is fair to and in the best interests
of the Companys shareholders (other than the members of
the Swenson Granite Group, to the extent they contribute their
Company shares to Parent prior to the merger pursuant to
contribution agreements);
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adopt the merger agreement; and
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recommend to the Companys shareholders that they vote in
favor of approval of the merger agreement.
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After considering the unanimous recommendations of the special
committee and also considering various additional factors,
including Covingtons fairness opinion (as described below,
under SPECIAL FACTORS Opinion of the Financial
Advisor to the Special Committee), the board of directors,
based in part on the recommendation of the special committee:
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determined that the merger is fair to and in the best interests
of the Companys shareholders (other than the members of
the Swenson Granite Group, to the extent they contribute their
Company shares to Parent prior to the merger pursuant to
contribution agreements);
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adopted the merger agreement; and
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recommends that the Companys shareholders vote in favor of
approval of the merger agreement.
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Reasons
for the Special Committee Adopting the Merger Agreement,
Recommending that the Companys Shareholders Approve the
Merger Agreement, and Recommending that the Board of Directors
Adopt the Merger Agreement and Recommend Approval of the Merger
Agreement by the Companys Shareholders
In reaching its conclusions and making its recommendations to
the board of directors, the special committee considered factors
including, but not limited to, the following:
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the fairness opinion of Covington, the special committees
financial advisor, that, as of the date of such opinion and
based on and subject to the assumptions, limitations and
qualifications set forth in the opinion, the $5.25 per share
merger consideration to be received by the Companys
shareholders in the merger is fair, from a financial point of
view, to such shareholders;
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the various financial analyses and presentations provided by
Covington to the special committee, which are generally
described below under SPECIAL FACTORS Opinion
of the Financial Advisor to the Special Committee;
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the advice of the special committees independent legal
counsel, Skadden, regarding the terms and legal aspects of the
merger agreement, and of its special Vermont counsel, Dinse,
regarding directors fiduciary duties under applicable
Vermont law;
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the value of the merger consideration as compared to the market
prices at which the Companys Class A common stock has
historically traded, including the fact that the $5.25 per share
merger consideration
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to be received by the Companys shareholders represented,
at the time of the special committees adoption of the
merger agreement, a 57% premium to the 30-trading day average
closing price and an 84% premium to the
12-month
average closing price of the Companys Class A common
stock for the respective periods ended May 7, 2010 (the day
of the last trading session prior to the announcement of
Parents initial proposal to acquire 100% ownership of Rock
of Ages);
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the terms of the merger agreement, including the parties
representations, warranties and covenants, the conditions to
closing and the consequences and remedies upon termination of
the merger agreement under various circumstances;
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the rules and procedures adopted by the special committee and
agreed to by Parent with respect to Parents pursuit of its
acquisition proposal and its interactions with the Company and
Company management, with the objective of achieving an
even-handed, orderly and efficient process, directed and
monitored by the special committee, for considering
Parents proposal and other acquisition proposals that
might be submitted to the Company;
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the fact that more than five months elapsed between the public
announcement on May 7, 2010 of the initial Swenson Proposal
to acquire the Company at a price of $4.38 per share and the
public announcement on October 18, 2010 of the execution of
the merger agreement without a firm alternative proposal to
acquire the Company being submitted, despite the active efforts
by Covington, on behalf of the special committee, to solicit
alternative proposals;
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the prospects for the Company, and the likely trading market for
its shares, if it remained, and risks associated with the
Company remaining, an independent entity;
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the value to the Companys shareholders that might be
achieved if the Companys quarrying and manufacturing
divisions were sold separately, the feasibility of such
transactions and risks associated therewith, and the fact that
in the strategic exploration process only one IOI was submitted
to acquire a single division of the Company at a price for the
manufacturing division below that implied by the $4.38 per share
offer price in Parents original proposal letter and its
IOI;
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whether it might be possible to achieve higher value for
shareholders through an orderly liquidation of the
Companys assets, including Covingtons advice that
the likely values that third parties would offer for individual
quarries, or for the Companys manufacturing assets, would
be based solely on the potential earnings before interest,
taxes, depreciation and amortization (EBITDA) of
each such quarry and of such assets and would likely result in
value to shareholders significantly below the $5.25 merger
consideration, as well as the special committees belief
that such an orderly liquidation would be time consuming, entail
significant cost and expense and subject the Companys
shareholders to transaction risk with respect to each asset
being sold and substantial delay and uncertainty in receiving
the proceeds of such sales as liquidating distributions;
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the fact that the merger agreement provides that the
consummation of the merger is conditioned upon both (1) the
affirmative vote in favor of approving the merger agreement of a
majority of the votes represented by all outstanding shares of
Class A and Class B common stock, voting together as a
single group and (2) the majority of the minority approval;
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the risk of non-consummation of the merger due to the failure to
obtain the majority of the minority approval;
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the special committees belief that the principal advantage
of Rock of Ages continuing as a public company would be to allow
public shareholders to continue to participate in any growth in
the value of the Companys equity, but that, under all of
the relevant circumstances and in view of the historical results
of operations, financial condition, assets, liabilities,
business strategy and prospects of the Company, the nature of
the industry in which the Company competes, and trading
characteristics of companies with market capitalization similar
in size to that of Rock of Ages, and in light of the proposed
merger consideration, the value to shareholders that would be
achieved by continuing as a public company was not likely to be
as great as the merger consideration;
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the special committees belief that the economic interests
of each member of the special committee with respect to the
merger are aligned with those of the Companys shareholders
whose shares of common stock will be converted in the merger
into the right to receive the merger consideration because the
members of the special committee own, in aggregate,
15,000 shares of the Companys Class A common
stock;
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the active and direct role of the chairman of the special
committee and the special committees representatives in
the negotiations with respect to the merger agreement, and the
consideration by the special committee at numerous special
committee meetings of the status and key issues being discussed
in such negotiations;
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the negotiations that took place between the special committee
and its representatives, on the one hand, and Parent and
representatives of Parent, on the other hand, with respect to
the increase in the merger consideration from the initial offer
of $4.38 per share to $5.25 per share, and the belief of the
members of the special committee that $5.25 per share was the
highest price that Parent would agree to pay to the
Companys shareholders;
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the merger agreement was the result of negotiations in which the
special committees advisors, with the direct involvement
of the chairman of the special committee and his regular
consultation with the other members of the special committee,
vigorously negotiated with Parents advisors and Parent the
terms and conditions of the merger, including, without
limitation, the representations and warranties, the conditions
to closing and the termination and expense reimbursement
provisions (see SPECIAL FACTORS Background of
the Merger);
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the merger consideration in relation to the then-current value
of Rock of Ages in a freely negotiated transaction and the
future value of Rock of Ages as an independent entity;
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the special committees belief that Parent would likely be
able to consummate an acquisition of Rock of Ages at a higher
per share price than potential competing bidders due to the
equity position of certain Company shareholders (including Kurt
Swenson, the Companys non-executive Chairman, and his
brother, Kevin Swenson), especially if they were unwilling to
sell their controlling interest in the Company in connection
with any alternative transaction involving the acquisition of
Rock of Ages;
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the fact that the merger agreement permits Rock of Ages and the
special committee to explore an Acquisition Proposal (as defined
under the terms of the merger agreement and described below,
under the heading THE MERGER AGREEMENT
Acquisition Proposals), provide material non-public
information to a potential competing aquiror and, prior to the
Companys shareholders approval of the merger
agreement, if the special committee determines that an
Acquisition Proposal is a Superior Proposal (as determined under
the terms of the merger agreement and defined below, under the
heading THE MERGER AGREEMENT Acquisition
Proposals), permit the special committee and the board of
directors to modify or withdraw its recommendation of the merger
agreement, adopt or recommend, and terminate the merger
agreement in order to accept, the Superior Proposal if the
special committee or a majority of the (but not less than two)
qualified directors, and the Companys board of directors,
if required by applicable provisions of the VBCA or the
Companys bylaws, determines in good faith, after
consultation with its outside counsel and after taking into
account any changes to the terms and conditions of the merger
agreement that may be proposed by Parent, that the failure to
take such action would reasonably be expected to be inconsistent
with the fiduciary duties of the Companys directors under
applicable law;
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the merger agreement does not provide for the payment of a
separate breakup or similar fee to Parent under any
circumstances; however, under certain circumstances, if the
merger agreement is terminated, the Company must reimburse
Parent for all of Parents reasonable and documented
out-of-pocket
costs and expenses incurred in connection with the merger
agreement and the transactions contemplated by the merger
agreement (see THE MERGER AGREEMENT
Termination Fees and Expenses);
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the Companys right to receive from Parent the greater of
its expenses or $2,518,000 in the event that all the conditions
to the merger are satisfied or waived, but Parent is unable to
secure the Financing and the merger is therefore not consummated;
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the representation of Parent and Merger Sub in the merger
agreement that, subject to the accuracy of the information
provided by the Company, upon the completion of the transactions
contemplated by the merger agreement and at the effective time
of the merger, Parent, Rock of Ages (as the surviving
corporation) and their respective subsidiaries, taken together,
will be solvent;
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the status and conditions of the Financing, which the special
committee believes should provide sufficient funds to finance
the merger and related expenses and to provide for the ongoing
working capital of the Company;
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the terms and conditions of the voting agreements whereby the
members of the Swenson Granite Group have agreed to vote in
favor of approval of the merger agreement;
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the special committees belief, based on a confidential
discussion between the special committees financial
advisor and a substantial institutional holder of shares of
Class A common stock, that, at an acquisition price of
$5.25 per share, the majority of the minority approval was
likely to be obtained;
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the special committees belief that Parents and its
principals history of operating in the granite industry,
their knowledge of the Company, and that fact that they are well
known to the Companys employees, management, suppliers,
union representatives and local community representatives,
should help assure stability and normal operations pending the
closing, and thereby increase the likelihood of a prompt closing
and the prompt receipt by shareholders of the merger
consideration.
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the availability to shareholders who do not vote in favor of
approval of the merger agreement of dissenters rights
under the VBCA, which provide shareholders who dispute the
fairness of the merger consideration an opportunity to have a
court determine the fair value of their shares; and
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such other factors, considerations, documents, information and
advice as the special committee has deemed necessary or
appropriate in order to reach a fully informed conclusion
regarding whether to adopt the merger agreement and recommend
that the Companys board of directors adopt and recommend
to the Companys shareholders that they vote in favor of
approval of the merger agreement.
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The special committee believes that each of these factors
supported its determination that the merger is fair to and in
the best interests of the Companys shareholders (other
than the members of the Swenson Granite Group, to the extent
they contribute their Company shares to Parent prior to the
merger pursuant to the contribution agreements), and to adopt
the merger agreement and recommend to the Companys
shareholders that they vote in favor of approval of the merger
agreement, as well as its recommendation to the board of
directors that it determine that the merger is fair to and in
the best interests of the Companys shareholders (other
than the members of the Swenson Granite Group, to the extent
they contribute their Company shares to Parent prior to the
merger pursuant to the contribution agreements), adopt the
merger agreement and recommend to the Companys
shareholders that they vote in favor of approval of the merger
agreement.
In evaluating the fairness of the merger, the special committee
did not consider:
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the net book value of Rock of Ages, because it believes that net
book value is not a material indicator of the value of Rock of
Ages common stock, but rather is an accounting concept
indicative of historical asset costs; or
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the liquidation value of Rock of Ages, because, as described
above starting on page 34 under Reasons for the Special
Committee Adopting the Merger Agreement, Recommending that the
Companys Shareholders Approve the Merger Agreement, and
Recommend Approval of the Merger Agreement by the Companys
Shareholders, based on the advice of Covington at meetings
of the special committee, it concluded that a liquidation of the
Company was unlikely to yield value to the Companys
shareholders higher than the $5.25 per share merger
consideration.
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In addition, the special committee did not establish, and did
not consider, a pre-merger going concern value for the equity of
Rock of Ages and does not believe there is a single method of
determining going concern value, although the special committee
believes the analyses of Covington in their totality may, to
some degree, be generally reflective of going concern value.
The special committee also considered a variety of risks and
other potentially negative factors concerning the merger
agreement and the transactions contemplated by it, including the
merger. These factors included, but were not limited to, the
following:
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the fact that, following the merger, the Companys
shareholders (other than those shareholders that are members of
Parent at the effective time of the merger), will no longer
participate in any future earnings of the Company or benefit
from any increases in the Companys value, if any;
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the fact that certain parties, including members of the
Companys board of directors who are not members of the
special committee, may have interests that are different from
those of the Companys shareholders, as described under
SPECIAL FACTORS Interests of Certain Persons
in the Merger;
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the possibility that the Company could be required, under
certain circumstances, to reimburse Parents
out-of-pocket
costs and expenses in the event that the merger is not
consummated;
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the fact that, although the special committee expects the merger
will be consummated, there can be no assurances that all
conditions to the parties obligations to complete the
merger will be satisfied, and as a result, the merger may not be
consummated;
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the fact that the controlling interest of certain Company
shareholders (including Kurt Swenson, the Companys
non-executive Chairman and Chairman of Parent, and his brother,
Kevin Swenson, Vice President of Parent) may have made a
competing third party offer at a value in excess of the $5.25
per share offered by Parent less likely than if such controlling
interest did not exist;
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the fact that the restrictions on the Companys business
prior to the consummation of the merger require the Company to
conduct its business in the ordinary course, which may delay or
prevent the Company from pursuing opportunities that may arise
pending completion of the merger;
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the fact that the obligation of the Lenders to provide the
Financing may be subject to conditions outside of the
Companys control;
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the risk of a potential fraudulent conveyance challenge to the
merger, as described under SPECIAL FACTORS
Certain Risks in the Event of Bankruptcy; and
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the fact that, for U.S. federal income tax purposes, the
merger consideration could be taxable to the Companys
shareholders who are receiving the merger consideration.
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This discussion of the information and factors considered by the
special committee in reaching its conclusions and
recommendations includes all of the material factors considered
by the special committee, but is not intended to be exhaustive.
In view of the wide variety of factors considered by the special
committee in evaluating the merger agreement and the
transactions contemplated by it, including the merger, and the
complexity of these matters, the special committee did not find
it practicable, and did not attempt, to quantify, rank or
otherwise assign relative weight to those factors. In addition,
different members of the special committee may have given
different weight to different factors.
The special committee believes that sufficient procedural
safeguards were and are present to ensure the fairness of the
merger to the Companys shareholders who are not affiliates
of the Company and to permit the special committee to
effectively represent the interests of such shareholders. These
procedural safeguards include the following:
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the special committee is comprised of three directors who are
not affiliated with Parent and are not now and have never been
employees of the Company, Parent or any of their respective
subsidiaries;
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the vigorous negotiations with Parents advisors and Parent
conducted by the special committees advisors, with the
direct involvement of the chairman of the special committee and
his regular
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consultation with the other members of the special committee,
regarding the merger consideration and the other terms of the
merger and the merger agreement;
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the fact that the members of the special committee do not have a
financial interest in the merger different from those of the
Companys other shareholders (other than members of the
Swenson Granite Group) other than (1) receipt of board of
directors and special committee fees (which were not contingent
upon the consummation of the merger or upon the special
committee adopting or recommending that the board of directors
adopt the merger agreement), and (2) indemnification and
director liability insurance rights under the merger agreement;
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the special committee retained and received the advice and
assistance of Covington as its financial advisor, and requested
and received from Covington a written opinion dated
October 15, 2010, that, as of that date and based upon and
subject to the assumptions, factors, limitations and
qualifications set forth therein, the $5.25 per share merger
consideration to be received by the Companys shareholders
in the merger, is fair, from a financial point of view, to such
holders;
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the special committee retained Skadden as independent legal
counsel to advise it in connection with exploring strategic
alternatives and to negotiate the terms of any transaction,
including the merger, on behalf of the Companys
shareholders unaffiliated with Parent;
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The special committee retained Dinse as its special Vermont
counsel to advise it as to matters of Vermont law, including
directors duties under the VBCA;
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the recognition by the special committee that it had no
obligation to recommend approval of Parents initial or
revised merger proposal or any other transaction;
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The requirement in the merger agreement that consummation of the
merger is subject to the majority of the minority approval being
obtained;
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the recognition by the special committee that the merger
agreement can be terminated to allow the Company to enter into
an alternative agreement that contemplates a Superior Proposal,
subject to paying Parents reasonable transaction costs and
expenses as Parents sole remedy in such
circumstances; and
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the availability of dissenters rights under the VBCA for
those Company shareholders who oppose the merger.
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In light of the procedural safeguards described above, the
special committee did not consider it necessary to retain an
unaffiliated representative to act solely on behalf of those
Company shareholders not affiliated with Parent for purposes of
negotiating the terms of the merger agreement or preparing a
report concerning the fairness of the merger agreement and the
merger.
Reasons
for the Board of Directors Adopting the Merger Agreement and
Recommending that the Companys Shareholders Approve the
Merger Agreement
In reaching its determination that the merger is fair to and in
the best interests of the Companys shareholders, to the
extent such shareholders shares of common stock are
converted in the merger into the right to receive the $5.25 per
share merger consideration, and its determination to adopt the
merger agreement and recommend approval of the merger agreement
by the Companys shareholders, the board of directors
determined that the analysis of the special committee was
reasonable, adopted the determination of the special committee
as to the substantive and procedural fairness of the merger to
the Companys shareholders, to the extent such
shareholders shares of common stock are converted in the
merger into the right to receive the merger consideration, and
the special committees reasons for such determination, as
described above under SPECIAL FACTORS
Recommendations of the Special Committee and the Board of
Directors; Reasons for Recommending Approval of the Merger
Agreement to the Companys Shareholders. Accordingly,
the board of directors believes the merger is fair to the
Companys shareholders who are not affiliates of the
Company. In determining the reasonableness of and adopting the
special committees determination and the reasons therefor,
the board of directors carefully evaluated and considered such
factors, including the
39
potentially negative factors, considered by the special
committee. In addition, the board of directors considered the
advice of the Companys regular outside counsel, McLane, as
to directors duties under the VBCA.
In evaluating the merger, the board of directors did not
consider the Companys net book value, liquidation value or
the pre-merger going concern value for the equity of the
Company, for the same reasons that the special committee did not
consider such factors, as described above on page 34 under
SPECIAL FACTORS Recommendations of the Special
Committee and the Board of Directors; Reasons for Recommending
Approval of the Merger Agreement to the Companys
Shareholders.
In light of the procedural protections described above starting
on page 34 under SPECIAL FACTORS
Recommendations of the Special Committee and the Board of
Directors; Reasons for Recommending Approval of the Merger
Agreement to the Companys Shareholders, the board of
directors did not consider it necessary to retain an
unaffiliated representative to act solely on behalf of those
Company shareholders not affiliated with Parent for purposes of
negotiating the terms of the merger agreement or preparing a
report concerning the fairness of the merger agreement and the
merger.
In view of the wide variety of factors considered by the board
of directors in evaluating the merger and the complexity of
these matters, the board of directors did not find it
practicable, and did not attempt, to quantify, rank or otherwise
assign relative weight to those factors. In addition, different
members of the board of directors may have given different
weight to different factors.
Based in part upon the recommendation of the special
committee, the board of directors unanimously determined that
the merger is fair to and in the best interest of the
Companys shareholders (other than the members of the
Swenson Granite Group, to the extent they contribute their
Company shares to Parent prior to the merger pursuant to the
contribution agreements), adopted the merger agreement and
recommends that you vote FOR approval of the merger
agreement
. This recommendation of the board of directors was
made after consideration of all the material factors, both
positive and negative, as described above. Our board of
directors also recommends that you vote FOR the proposal to
adjourn the special meeting, if necessary, to permit further
solicitation of proxies in the event there are not sufficient
votes of shares of Class A common stock at the time of the
special meeting to satisfy the condition in the merger agreement
that the majority of the minority approval be obtained (whereby
the merger agreement must be approved by a majority of the
outstanding shares of our Class A common stock not owned by
members of Parent). This recommendation of the board of
directors was made after consideration of all the material
factors, both positive and negative, as described above.
If the merger is consummated, the members of the Companys
board of directors, other than Kurt Swenson and Richard Kimball
(who, as members of the Swenson Granite Group, will contribute
all of their Company common stock to Parent prior to the
effective time of the merger), will be entitled to receive an
aggregate of approximately $317,200 based on their ownership of
shares of Rock of Ages common stock and options. $78,750 of this
amount would be received by members of the special committee.
See SPECIAL FACTORS Interests of Certain
Persons in the Merger.
Position
of Parent, Merger Sub and the members of the Swenson Granite
Group as to the Fairness of the Merger to the Companys
Shareholders that are Receiving the Merger
Consideration
Parent, Merger Sub and the members of the Swenson Granite Group
did not undertake any independent evaluation of the fairness of
the proposed merger to those Company shareholders whose shares
of common stock are converted in the merger into the right to
receive the merger consideration or engage a financial advisor
specifically for such purposes. Parent, Merger Sub and the
members of the Swenson Granite Group did not participate in the
deliberations of the special committee regarding, and did not
receive advice from the special committees legal or
financial advisors as to, the fairness of the merger.
Nevertheless, Parent, Merger Sub and the members of the Swenson
Granite Group found persuasive, and have adopted, the
determination of the special committee as to the substantive and
procedural fairness of the merger to the Companys
shareholders, to the extent such shareholders shares of
common stock are converted in the merger into the right to
receive the merger consideration, and the special
committees reasons for such determination, as described
above under SPECIAL FACTORS Recommendations of
the Special Committee and the Board
40
of Directors; Reasons for Recommending Approval of the Merger
Agreement to the Companys Shareholders. Accordingly,
Parent, Merger Sub and the members of the Swenson Granite Group
believe the merger is fair to the Companys shareholders
who are not affiliates of the Company. This belief is also based
on the following additional factors considered by Parent, Merger
Sub and the members of the Swenson Granite Group:
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the merger consideration will be provided entirely in cash to
those Company shareholders whose shares of common stock are
converted in the merger into the right to receive the merger
consideration, thus eliminating any uncertainty in valuing the
merger consideration and allowing them to pursue other
investment alternatives;
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there has historically been a small public float of the
Companys common stock, resulting in a lack of liquidity as
evidenced by relatively low trading volumes; and
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the merger will provide liquidity, without the brokerage and
other costs typically associated with market sales, for the
Companys public shareholders whose ability, absent the
merger, to sell their shares of the Companys common stock
is adversely affected by the limited trading volume and
relatively low public float of the shares;
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The foregoing discussion of the information and factors
considered by Parent, Merger Sub and the members of the Swenson
Granite Group in connection with the fairness of the merger is
not intended to be exhaustive. Because of the variety of factors
considered, Parent, Merger Sub and the members of the Swenson
Granite Group did not find it practicable to and did not attempt
to, make specific assessments of, quantify, rank or otherwise
assign relative weights to, the specific factors considered in
reaching their determination. Parent, Merger Sub and the members
of the Swenson Granite Group felt that there was no need to
retain any additional unaffiliated representatives to act on
behalf of those Company shareholders that are not affiliated
with Parent, Merger Sub or are members of the Swenson Granite
Group, because the independence of the members of the special
committee and the retention by the special committee of its own
legal counsel and financial advisor permitted the special
committee to effectively represent the interests of such
shareholders and because the merger agreement explicitly
requires obtaining the majority of the minority approval as a
condition to the consummation of the merger.
Parent, Merger Sub and the members of the Swenson Granite Group
did not consider net book value in evaluating the fairness of
the merger to the Companys shareholders to the extent
their shares of Company common stock are converted in the merger
into the right to receive the merger consideration, because they
believe that net book value is not a material indicator of the
value of the Companys common stock, but rather an
accounting concept indicative of historical asset costs.
Similarly, Parent, Merger Sub and the members of the Swenson
Granite Group did not consider liquidation value in evaluating
the fairness of the merger to the Companys shareholders to
the extent their shares of common stock are converted in the
merger into the right to receive the merger consideration
because they believe, based on Parents extensive knowledge
of the Companys quarries and manufacturing assets, that a
liquidation of such quarries and assets would likely result in
value to shareholders significantly below the $5.25 merger
consideration, as well as their belief that a liquidation would
be time consuming, entail significant cost and expense and
subject the Companys shareholders to transaction risk with
respect to each asset being sold and substantial delay and
uncertainty in receiving the proceeds of such sales as
liquidating distributions.
In addition, in evaluating the fairness of the merger to the
Companys shareholders to the extent their shares of common
stock are converted in the merger into the right to receive the
merger consideration, Parent, Merger Sub and the members of the
Swenson Granite Group did not establish or consider a particular
pre-merger going concern value for the equity of the Company and
do not believe there is a single method of determining going
concern value. However, they do believe that the valuation
analyses and methodologies normally employed by investment
bankers such as Covington may, to some degree, be generally
reflective of going concern value.
41
Financial
Projections
In connection with Parents and Merger Subs review of
Rock of Ages and in the course of the negotiations between the
special committee and Parent and Merger Sub as described in
SPECIAL FACTORS Background of the
Merger, Rock of Ages provided Parent and Merger Sub with
non-public business and financial information. The non-public
information included projections of the Companys future
operating performance. Such projections also were provided to
Covington in its capacity as financial advisor to the special
committee. The information set forth below has been excerpted
from the materials provided to Parent, Merger Sub and Covington,
and does not give effect to the transactions contemplated by the
merger agreement, including the merger, or the Financing. These
projections, as summarized below, have been provided to give
Rock of Ages stockholders access to certain nonpublic
information that was provided to Parent and Covington for the
purpose of considering and evaluating the merger.
Rock of Ages does not, as a matter of course, publicly disclose
projections of future revenues or earnings. However, as
requested, our management did provide financial forecasts to
Parent and Covington.
The projections were not prepared with a view to public
disclosure and are included in this proxy statement only because
such information was made available to Parent in connection with
its due diligence investigation of Rock of Ages and to
Covington. The projections were not prepared with a view to
compliance with the published guidelines of the SEC regarding
projections, nor were they prepared in accordance with the
guidelines established by the American Institute of Certified
Public Accountants for preparation and presentation of financial
projections.
The projections in this proxy statement have been prepared by,
and are the responsibility of our management. Grant Thornton
LLP, the Companys independent registered public accounting
firm, has neither examined nor compiled the projections, and
accordingly, Grant Thornton LLP does not express an opinion or
any other form of assurance with respect to the projections. The
audit report related to the Companys historical financial
information, included in the Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009 which is
included as Annex F of this proxy statement, does not
extend to the projections and should not be read to do so.
In compiling the projections, our management took into account
historical performance, combined with projections regarding
development activities. The projections were developed in a
manner consistent with managements historical development
of budgets and long-range operating projections and were not
developed for public disclosure. Although the projections were
presented with numerical specificity, the projections reflect
numerous assumptions and estimates as to future events made by
our management that our management believed were reasonable at
the time the projections were prepared. Failure to achieve any
such assumptions would impact the accuracy of the projections.
In addition, factors such as industry performance and general
business, economic, regulatory, market and financial conditions,
all of which are difficult to predict and beyond the control of
our management, may cause the projections or the underlying
assumptions to be inaccurate. Accordingly, there can be no
assurance that the projections will be realized, and actual
results may be materially greater or less than those contained
in the projections. Because the projections cover multiple
years, such information by its nature becomes less predictive
with each successive year. None of Rock of Ages or Parent or any
of their affiliates, advisors or representatives has made or
makes any representation to any stockholder regarding our
ultimate performance compared to the information contained in
these projections. See FORWARD-LOOKING STATEMENTS on
page 70.
Rock of Ages does not intend to update or otherwise revise the
projections to reflect circumstances existing after the date
when made or to reflect the occurrence of future events, even if
any or all of the assumptions underlying the projections are
shown to be in error.
42
The projections Rock of Ages provided to Parent and Covington
included estimates for fiscal years 2010, 2011, 2012, 2013, 2014
and 2015 revenues, gross profit, operating income and net
income. The most recent such estimates by Rock of Ages to Parent
and Covington are set forth in the table below:
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2010 FY
|
|
|
2011 FY
|
|
|
2012 FY
|
|
|
2013 FY
|
|
|
2014 FY
|
|
|
2015 FY
|
|
|
|
Forecast
|
|
|
Forecast
|
|
|
Forecast
|
|
|
Forecast
|
|
|
Forecast
|
|
|
Forecast
|
|
|
|
(All figures in $ thousands)
|
|
|
Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
$
|
26,039
|
|
|
$
|
27,341
|
|
|
$
|
28,708
|
|
|
$
|
30,143
|
|
|
$
|
31,651
|
|
|
$
|
33,233
|
|
Manufacturing
|
|
|
26,667
|
|
|
|
28,000
|
|
|
|
29,400
|
|
|
|
30,870
|
|
|
|
32,414
|
|
|
|
34,035
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
52,706
|
|
|
|
55,341
|
|
|
|
58,108
|
|
|
|
61,014
|
|
|
|
64,064
|
|
|
|
67,268
|
|
Gross Profit
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
7,865
|
|
|
|
8,258
|
|
|
|
8,671
|
|
|
|
9,105
|
|
|
|
9,560
|
|
|
|
10,038
|
|
Manufacturing
|
|
|
7,677
|
|
|
|
7,560
|
|
|
|
7,938
|
|
|
|
8,335
|
|
|
|
8,752
|
|
|
|
9,189
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
15,542
|
|
|
|
15,818
|
|
|
|
16,609
|
|
|
|
17,440
|
|
|
|
18,312
|
|
|
|
19,227
|
|
SG&A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
2,260
|
|
|
|
2,339
|
|
|
|
2,421
|
|
|
|
2,506
|
|
|
|
2,593
|
|
|
|
2,684
|
|
Manufacturing
|
|
|
4,247
|
|
|
|
4,396
|
|
|
|
4,549
|
|
|
|
4,709
|
|
|
|
4,874
|
|
|
|
5,044
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
6,507
|
|
|
|
6,735
|
|
|
|
6,970
|
|
|
|
7,214
|
|
|
|
7,467
|
|
|
|
7,728
|
|
Operating Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
5,605
|
|
|
|
5,919
|
|
|
|
6,250
|
|
|
|
6,599
|
|
|
|
6,967
|
|
|
|
7,354
|
|
Manufacturing
|
|
|
3,430
|
|
|
|
3,164
|
|
|
|
3,389
|
|
|
|
3,626
|
|
|
|
3,878
|
|
|
|
4,145
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
9,035
|
|
|
|
9,084
|
|
|
|
9,639
|
|
|
|
10,225
|
|
|
|
10,845
|
|
|
|
11,499
|
|
Corporate O/H less other income
|
|
|
3,033
|
|
|
|
3,124
|
|
|
|
3,218
|
|
|
|
3,314
|
|
|
|
3,414
|
|
|
|
3,516
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EBIT
|
|
|
6,002
|
|
|
|
5,960
|
|
|
|
6,421
|
|
|
|
6,911
|
|
|
|
7,431
|
|
|
|
7,983
|
|
Interest Expense
|
|
|
981
|
|
|
|
460
|
|
|
|
223
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
Taxes
|
|
|
431
|
|
|
|
550
|
|
|
|
600
|
|
|
|
650
|
|
|
|
650
|
|
|
|
650
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Income
|
|
|
4,590
|
|
|
|
4,950
|
|
|
|
5,598
|
|
|
|
6,261
|
|
|
|
6,781
|
|
|
|
7,333
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings Per Share
|
|
$
|
0.62
|
|
|
$
|
0.67
|
|
|
$
|
0.75
|
|
|
$
|
0.84
|
|
|
$
|
0.91
|
|
|
$
|
0.99
|
|
Gross Margin %
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
30.20
|
%
|
|
|
30.20
|
%
|
|
|
30.20
|
%
|
|
|
30.20
|
%
|
|
|
30.20
|
%
|
|
|
30.20
|
%
|
Manufacturing
|
|
|
28.79
|
%
|
|
|
27.00
|
%
|
|
|
27.00
|
%
|
|
|
27.00
|
%
|
|
|
27.00
|
%
|
|
|
27.00
|
%
|
The table above reflects projections prepared by the Company
that were provided to Parent shortly before Parents
meeting with Covington on October 11, 2010 as described
under SPECIAL FACTORS Background of the
Merger, and which Covington used and relied upon in the
preparation and delivery of its opinion as to the fairness, from
a financial point of view, of the $5.25 per share merger
consideration to be received by Company shareholders. These
projections were prepared by the Company by updating, to reflect
the Companys actual performance for the first three
quarters of 2010, earlier projections prepared by the Company
which were reviewed by the Companys board of directors at
a regular meeting in February, 2010 and were made available to
Covington at the outset of its engagement. The Companys
actual performance through the third quarter of 2010 varied from
the estimates reflected in such earlier projections, and as a
result, the projections in the table above vary from those
earlier projections. The earlier projections forecast, for the
years 2010, 2011, 2012, 2013, 2014 and 2015, revenues of
$50.9 million, $53.4 million, $56.1 million,
$58.9 million, $61.9 million, and $65.0 million,
respectively, EBIT of $5.8 million, $6.0 million,
$6.5 million, $7.0 million, $7.5 million, and
$8.0 million, respectively, and net income of
$4.5 million, $5.0 million, $5.6 million,
$6.3 million, $6.8 million, $7.4 million,
respectively. In June 2010, updated projections for 2010 only
were made available to Covington and Parent and to various other
parties which had indicated an interest
43
in possibly submitting an acquisition proposal as part of the
strategic alternatives exploration process undertaken by
Covington at the direction of the special committee. These
updated 2010 projections forecast revenues of
$50.4 million, EBIT of $5.7 million and net income of
$4.4 million.
Opinion
of the Financial Advisor to the Special Committee
The special committee retained Covington to act as its financial
advisor in connection with the exploration of one or more
strategic alternatives for the Company and to render an opinion
as to the fairness, from a financial point of view, of the $5.25
per share merger consideration to be received by the
Companys shareholders in the merger. On October 15,
2010, Covington delivered to the Companys special
committee and board of directors its oral opinion, confirmed by
its written opinion of the same date, that, as of that date and
based upon and subject to the assumptions, limitations,
qualifications, and other conditions set forth in its written
opinion, the $5.25 per share merger consideration to be received
by the Companys shareholders is fair, from a financial
point of view, to such shareholders.
Covingtons opinion was only one of many factors taken into
consideration by our special committee and our board of
directors in making their determinations to adopt the merger
agreement and recommend that the Companys shareholders
vote in favor of approval of the merger agreement. The terms of
the merger agreement, however, including the $5.25 per share
merger consideration were determined through negotiations
between our special committee, Parent and Merger Sub, and were
ultimately approved by the special committee and our board of
directors. Covington also did not recommend any specific form of
consideration to the Companys special committee or board
of directors or state that any specific form of consideration
constituted the only appropriate consideration with respect to
the merger agreement and the transactions contemplated thereby,
including the merger.
The full text of Covingtons written opinion, dated
October 15, 2010, is attached as Annex D to this proxy
statement and is incorporated herein by reference. We urge you
to read the full text of the opinion. Covington has consented to
the inclusion in this proxy statement of the full text of its
opinion, and to the inclusion as exhibits to the
Schedule 13E-3
Transaction Statement, as amended (the Schedule
13E-3), filed by the Company, Parent, Merger Sub and the
members of the Swenson Granite Group in connection with the
proposed merger, of various presentations made by Covington to
the special committee.
Covingtons opinion was addressed to, and for the use and
benefit of, the Companys special committee and its board
of directors, and is limited only to the fairness of the cash
merger consideration, from a financial point of view, to the
Company shareholders that are to receive the $5.25 per share
cash merger consideration. The opinion does not address the
relative merits of the other transactions contemplated by the
merger agreement or the other business strategies that the board
of directors has considered, nor does it address the decisions
of the special committee and the board of directors to proceed
with the merger. The opinion does not address the fairness of
the merger, or any consideration received in connection
therewith, to the holders of any other class of the
Companys securities, to the Companys creditors or to
other constituencies of the Company. The opinion also does not
address the fairness of the merger to the members of the Swenson
Granite Group who have agreed to, prior to the effective time of
the merger, contribute some or all of their shares of our common
stock in exchange for additional shares of membership interest
in Parent. As a result, Covingtons opinion does not
express a view as to the fairness of the $5.25 cash merger
consideration relative to the additional shares of membership
interest in Parent to be received by the members of the Swenson
Granite Group in exchange for the Company shares they contribute
to Parent. The opinion also does not address the fairness of the
contemplated benefits of the merger. Covington expresses no
opinion as to the merits of the underlying decision by the
Company to engage in the merger or how any holder of shares of
the Company common stock should vote, or take any action, with
respect to the merger, the approval of the merger agreement or
any other matter. Furthermore, Covington does not express any
view or opinion as to the fairness, financial or otherwise, of
the amount or nature of any compensation payable to or to be
received by any of the Companys officers, directors, or
employees, or any class of such persons, in connection with the
merger, whether relative to the cash merger consideration
pursuant to the merger agreement or otherwise. Covington does
not express any opinion as to the price at which shares of the
Companys common stock
44
would trade at any time. For purposes of the opinion, Covington
has assumed that the cash merger consideration that is paid for
each share of the Companys common stock outstanding
immediately prior to the closing of the merger will be equal to
$5.25 per share.
In arriving at its opinion, Covington, among other things:
|
|
|
|
|
reviewed the draft of the merger agreement received from the
Company on October 15, 2010;
|
|
|
|
reviewed certain publicly available business and financial
information relating to the Company deemed to be relevant;
|
|
|
|
reviewed certain information relating to the historical, current
and future operations, financial condition and prospects of the
Company made available by the Company, including
(a) financial projections (and adjustments thereto)
prepared by the management of the Company relating to the
Company for the fiscal years ending December 31, 2010
through December 31, 2015 (the Financial
Projections);
|
|
|
|
spoke with certain members of the Companys management
regarding the Companys business, operations, financial
condition and prospects, the merger and other related matters;
|
|
|
|
compared the financial and operating performance of the Company
with that of other public companies that Covington deemed to be
relevant;
|
|
|
|
considered the publicly available financial terms of certain
transactions that Covington deemed to be relevant;
|
|
|
|
reviewed the current and historical market prices and trading
volume for the Companys common stock, and the historical
market prices and certain financial data of the publicly traded
securities of certain other companies that Covington deemed to
be relevant; and
|
|
|
|
conducted such other financial studies, analyses, and inquiries,
including a discounted cash flow analysis, and considered such
other information and factors as Covington deemed appropriate.
|
Covington relied upon and assumed, without independent
verification, the accuracy and completeness of all data,
material and other information furnished, or otherwise made
available, to it, discussed with or reviewed by it, or publicly
available, and Covington does not assume any responsibility with
respect to such data, material and other information. In
addition, the Companys management advised Covington, and
Covington has assumed, that the Financial Projections reviewed
by it have been reasonably prepared in good faith on bases
reflecting the best currently available estimates and judgments
of such management as to the future financial results and
condition of the Company, and Covington expresses no opinion
with respect to such projections or the assumptions on which
they are based. Covington has relied upon and assumed, without
independent verification, that the historical financial
statements of the Company provided to it have been prepared in
accordance with United States generally accepted accounting
principles, and that, to the knowledge of Company management,
there has been no change in the business, assets, liabilities,
financial condition, results of operations, cash flows or
prospects of the Company since the date of the most recent
financial statements provided to it that would be material to
its analyses or opinion, and that there is no information or any
facts that would make any of the information reviewed by it
incomplete or misleading.
Furthermore, in connection with the opinion, Covington has not
been requested to make, and has not made, any physical
inspection or independent appraisal or evaluation of any of the
assets, properties or liabilities (fixed, contingent,
derivative, off-balance-sheet or otherwise) of the Company or
any other party, nor was it provided with any such appraisal or
evaluation. Covington did not estimate, and expresses no opinion
regarding, the liquidation value of any entity or business.
Covington has undertaken no independent analysis of any
potential or actual litigation, regulatory action, possible
unasserted claims or other contingent liabilities, to which the
Company is or may be a party or is or may be subject, or of any
governmental investigation of any possible unasserted claims or
other contingent liabilities to which the Company is or may be a
party or is or may be subject.
Covingtons opinion is necessarily based on financial,
economic, market and other conditions existing on, and the
information made available to Covington as of, the date of the
opinion. Covington has not undertaken,
45
and is under no obligation, to update, revise, reaffirm or
withdraw the opinion, or otherwise comment on or consider events
occurring or coming to its attention after the date hereof.
In connection with rendering its opinion, Covington performed
certain financial, comparative and other analyses as summarized
below. The following summary does not purport to be an
exhaustive description of the analyses performed by Covington,
nor does the order of analyses described represent relative
importance or weight given to those analyses by Covington.
In arriving at its opinion, Covington did not attribute any
particular weight to any analysis, methodology, or factor
considered by it, and the fact that any specific analysis has
been referred to in the summary below is not meant to indicate
that such analysis was given greater weight than any other
analysis. Rather, Covington made qualitative judgments as to the
significance and relevance of each analysis and factor relative
to all other analyses and factors performed and considered by it
and in the context of the circumstances of the particular
transaction. Accordingly, Covington believes that its analyses
must be considered as a whole and that selecting portions of its
analyses or the factors it considered, without considering all
analyses and factors, could create a misleading or incomplete
view of the process underlying its analyses and opinion. Certain
financial analyses summarized below include information
presented in tabular format. In order to fully understand the
financial analyses used by Covington, the tables must be read
together with the text of each summary, as the tables alone do
not constitute a complete description of the financial analyses.
Covington believes that each analysis performed by it is a
common methodology utilized in determining valuations in similar
circumstances. Although other valuation techniques may exist,
Covington believes that the analyses described below, when taken
as a whole, provide the most appropriate analyses for Covington
to arrive at the opinion.
Comparable
Public Company Analysis
Comparable public company analysis is a method of valuing an
entity relative to publicly traded companies that service
similar customers, offer similar products or services or have
similar operating or financial characteristics. Using publicly
available information, Covington reviewed and compared selected
Rock of Ages financial data with similar data for fourteen
publicly-traded companies deemed by Covington to be comparable
to the Company. In selecting these fourteen companies, Covington
reviewed publicly available information to identify building
materials, quarrying, and death care companies that serve
similar customers, offer similar products and services or have
similar operating or financial characteristics as those of Rock
of Ages. These criteria were consistently applied in this
review, and no companies which met some or all of these criteria
were deliberately excluded from the scope of this review or from
being selected. Covington selected the following companies,
because, among other reasons, they are publicly traded companies
with operations that for purposes of analysis may be considered
similar to certain aspects of the Companys operations:
Arbor Memorial Services Inc., Boral LTD, Carriage Services Inc.,
Granitifiandre s.p.a., HeidelbergCement AG, InvoCare LTD,
Lafarge SA, Martin Marietta Materials Inc., Matthews
International Corporation, Rocamat, Service Corp. International,
Stewart Enterprises Inc., Stonemor Partners LP, and Vulcan
Materials Company.
No company utilized in the comparable public company analysis is
identical to the Company. Covington made judgments and
assumptions with regard to industry performance, general
business, economic, market, and financial conditions, and other
matters, many of which are beyond the control of the Company.
Mathematical analysis of comparable public companies (such as
determining means and medians) in isolation from other analyses
is, in the opinion of Covington, not an effective method of
evaluating transactions.
For each of the comparable companies, Covington calculated that
companys total enterprise value as that companys
equity market value, plus total debt, less cash. For purposes of
this calculation, equity market values were calculated as of the
close of market trading on October 13, 2010, and cash and
debt values were calculated based on reported levels as of
June 30, 2010 (for Boral LTD, Carriage Services Inc.,
Granitifiandre s.p.a., HeidelbergCement AG, InvoCare LTD,
Lafarge SA, Martin Marietta Materials Inc., Matthews
International Corporation, Rocamat, Service Corp. International,
Stonemor Partners LP, and Vulcan Materials Company; as of
July 25, 2010 (for Arbor Memorial Services Inc.); and as of
July 31, 2010 (for Stewart Enterprises Inc.) Covington then
calculated the multiple implied by the relation between the
total enterprise
46
value of each of these companies and (1) each comparable
companys revenue for the twelve-month period ended
June 30, 2010 (for Boral LTD, Carriage Services Inc.,
Granitifiandre s.p.a., HeidelbergCement AG, InvoCare LTD,
Lafarge SA, Martin Marietta Materials Inc., Matthews
International Corporation, Rocamat, Service Corp. International,
Stonemor Partners LP, and Vulcan Materials Company), the
twelve-month period ended July 25, 2010 (for Arbor Memorial
Services Inc.) or for the twelve-month period ended
July 31, 2010 (for Stewart Enterprises Inc.), as reflected
in periodic reports filed with the SEC; (2) each comparable
companys estimated revenue for the year ending
December 31, 2010, as indicated in consensus Wall Street
analyst estimate reports where available; (3) each
comparable companys EBITDA for the twelve-month period
ended June 30, 2010 (for Boral LTD, Carriage Services Inc.,
Granitifiandre s.p.a., HeidelbergCement AG, InvoCare LTD,
Lafarge SA, Martin Marietta Materials Inc., Matthews
International Corporation, Rocamat, Service Corp. International,
Stonemor Partners LP, and Vulcan Materials Company), for the
twelve-month period ended July 25, 2010 (for Arbor Memorial
Services Inc.) or for the twelve-month period ended
July 31, 2010 (for Stewart Enterprises Inc.), as reflected
in periodic reports filed with the SEC; and (4) each
comparable companys estimated EBITDA for the year ending
December 31, 2010, as indicated in consensus Wall Street
analyst estimate reports where available. Covington then
calculated the median and mean multiples for each revenue and
EBITDA figure.
Covington next calculated, for reference purposes only, the
Companys total enterprise and equity values based on the
Companys share price as of the close of market trading on
October 13, 2010, as well as the corresponding multiples
(as described above), using (1) the Companys net debt
position as of July 3, 2010, as reflected in its quarterly
10-Q
report
filed with the SEC, (2) the Companys revenue and
EBITDA for the twelve-month period ended July 3, 2010, as
reflected in its quarterly
10-Q
report
filed with the SEC; and (3) managements financial
projections for revenues and EBITDA for the Company for the year
ending December 31, 2010.
47
The resulting multiples are set forth in the table below
(categorized by industry groupings):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
Enterprise
|
|
|
Total
|
|
|
Enterprise
|
|
|
Total
|
|
|
|
Value/Last
|
|
|
Enterprise
|
|
|
Value/Last
|
|
|
Enterprise
|
|
|
|
Twelve
|
|
|
Value/
|
|
|
Twelve
|
|
|
Value/
|
|
|
|
Month
|
|
|
Projected
|
|
|
Month
|
|
|
Projected
|
|
|
|
Period
|
|
|
2010
|
|
|
Period
|
|
|
2010
|
|
Comparable Companies
|
|
Revenue
|
|
|
Revenue
|
|
|
EBITDA
|
|
|
EBITDA
|
|
|
Building Materials/Quarrying
|
Boral LTD
|
|
|
1.0x
|
|
|
|
NA
|
|
|
|
8.9x
|
|
|
|
NA
|
|
Granitifiandre s.p.a.
|
|
|
0.9x
|
|
|
|
1.0x
|
|
|
|
8.0x
|
|
|
|
6.8x
|
|
HeidelbergCement AG
|
|
|
1.5x
|
|
|
|
NA
|
|
|
|
8.3x
|
|
|
|
NA
|
|
Lafarge SA
|
|
|
1.8x
|
|
|
|
NA
|
|
|
|
8.1x
|
|
|
|
NA
|
|
Martin Marietta Materials Inc.
|
|
|
2.7x
|
|
|
|
2.6x
|
|
|
|
12.3x
|
|
|
|
11.7x
|
|
Rocamat
|
|
|
0.8x
|
|
|
|
NA
|
|
|
|
28.0x
|
|
|
|
NA
|
|
Vulcan Materials Company
|
|
|
2.8x
|
|
|
|
2.8x
|
|
|
|
18.3x
|
|
|
|
16.9x
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Median
|
|
|
1.5x
|
|
|
|
2.6x
|
|
|
|
8.9x
|
|
|
|
11.7x
|
|
Mean
|
|
|
1.6x
|
|
|
|
2.1x
|
|
|
|
13.1x
|
|
|
|
11.8x
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rock of Ages
|
|
|
1.2x
|
|
|
|
1.1x
|
|
|
|
10.6x
|
|
|
|
7.0x
|
|
Death Care
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Arbor Memorial Services Inc.
|
|
|
1.0x
|
|
|
|
NA
|
|
|
|
6.4x
|
|
|
|
NA
|
|
Carriage Services Inc.
|
|
|
1.8x
|
|
|
|
1.7x
|
|
|
|
7.9x
|
|
|
|
7.4x
|
|
InvoCare LTD
|
|
|
3.1x
|
|
|
|
NA
|
|
|
|
11.9x
|
|
|
|
NA
|
|
Matthews International Corporation
|
|
|
1.6x
|
|
|
|
1.5x
|
|
|
|
9.4x
|
|
|
|
8.8x
|
|
Service Corp. International
|
|
|
1.8x
|
|
|
|
1.8x
|
|
|
|
7.6x
|
|
|
|
7.8x
|
|
Stewart Enterprises Inc.
|
|
|
1.5x
|
|
|
|
1.5x
|
|
|
|
8.3x
|
|
|
|
7.7x
|
|
Stonemor Partners LP
|
|
|
3.8x
|
|
|
|
3.6x
|
|
|
|
28.8x
|
|
|
|
10.1x
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Median
|
|
|
1.8x
|
|
|
|
1.7x
|
|
|
|
8.3x
|
|
|
|
7.8x
|
|
Mean
|
|
|
2.1x
|
|
|
|
2.0x
|
|
|
|
11.5x
|
|
|
|
8.4x
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rock of Ages
|
|
|
1.2x
|
|
|
|
1.1x
|
|
|
|
10.6x
|
|
|
|
7.0x
|
|
Based on the results of the comparable company analysis, the
relevant metrics of which are described above, Covington
determined that the consideration to be paid in the merger
reflected trading multiples that compared favorably with the
trading multiples of the comparable companies.
Benchmarking
Analysis
Benchmarking analysis is a method of ranking a company against
its peers according to specific financial metrics. Covington
benchmarked the Company against the set of publicly listed
comparable companies (as listed above), ranking the Company
based on size, growth, and operational margins. The benchmarking
analysis is summarized in the tables below, categorized by
industry grouping:
Building
Materials/Quarrying
Size (in
$US millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Market Capitalization
|
|
|
LTM Revenue
|
|
|
LTM EBITDA
|
|
|
Lafarge
|
|
$
|
16,222
|
|
|
Lafarge
|
|
$
|
21,805
|
|
|
Lafarge
|
|
$
|
4,948
|
|
HeidelbergCement
|
|
$
|
9,474
|
|
|
HeidelbergCement
|
|
$
|
15,696
|
|
|
HeidelbergCement
|
|
$
|
2,767
|
|
Vulcan Materials
|
|
$
|
4,683
|
|
|
Boral
|
|
$
|
4,457
|
|
|
Boral
|
|
$
|
477
|
|
Martin Marietta Materials
|
|
$
|
3,568
|
|
|
Vulcan Materials
|
|
$
|
2,598
|
|
|
Vulcan Materials
|
|
$
|
404
|
|
Boral
|
|
$
|
3,087
|
|
|
Martin Marietta Materials
|
|
$
|
1,708
|
|
|
Martin Marietta Materials
|
|
$
|
376
|
|
Granitifiandre
|
|
$
|
176
|
|
|
Granitifiandre
|
|
$
|
274
|
|
|
Granitifiandre
|
|
$
|
29
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rock of Ages
|
|
$
|
30
|
|
|
Rocamat
|
|
$
|
111
|
|
|
Rock of Ages
|
|
$
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rocamat
|
|
$
|
15
|
|
|
Rock of Ages
|
|
$
|
47
|
|
|
Rocamat
|
|
$
|
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
48
Margins
& Growth:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LTM Gross Margin
|
|
|
LTM EBITDA Margin
|
|
|
3 Year Revenue CAGR
|
|
|
Rocamat
|
|
|
87
|
%
|
|
Lafarge
|
|
|
23
|
%
|
|
HeidelbergCement
|
|
|
10
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
HeidelbergCement
|
|
|
60
|
%
|
|
Martin Marietta Materials
|
|
|
22
|
%
|
|
Rock of Ages
|
|
|
8
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granitifiandre
|
|
|
42
|
%
|
|
HeidelbergCement
|
|
|
18
|
%
|
|
Rocamat
|
|
|
(1
|
)%
|
Boral
|
|
|
32
|
%
|
|
Vulcan Materials
|
|
|
16
|
%
|
|
Boral
|
|
|
(3
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lafarge
|
|
|
26
|
%
|
|
Rock of Ages
|
|
|
12
|
%
|
|
Lafarge
|
|
|
(3
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rock of Ages
|
|
|
26
|
%
|
|
Boral
|
|
|
11
|
%
|
|
Granitifiandre
|
|
|
(4
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Martin Marietta Materials
|
|
|
18
|
%
|
|
Granitifiandre
|
|
|
11
|
%
|
|
Martin Marietta Materials
|
|
|
(8
|
)%
|
Vulcan Materials
|
|
|
13
|
%
|
|
Rocamat
|
|
|
3
|
%
|
|
Vulcan Materials
|
|
|
(8
|
)%
|
Death
Care
Size (in
$US millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Market Capitalization
|
|
|
LTM Revenue
|
|
|
LTM EBITDA
|
|
|
Service Corp. International
|
|
$
|
2,160
|
|
|
Service Corp. International
|
|
$
|
2,115
|
|
|
Service Corp. International
|
|
$
|
509
|
|
Matthews International
|
|
$
|
1,051
|
|
|
Matthews International
|
|
$
|
807
|
|
|
Matthews International
|
|
$
|
135
|
|
InvoCare
|
|
$
|
665
|
|
|
Stewart Enterprises
|
|
$
|
500
|
|
|
Stewart Enterprises
|
|
$
|
93
|
|
Stewart Enterprises
|
|
$
|
522
|
|
|
Arbor Memorial Services
|
|
$
|
276
|
|
|
InvoCare
|
|
$
|
69
|
|
Stonemor Partners
|
|
$
|
452
|
|
|
InvoCare
|
|
$
|
266
|
|
|
Arbor Memorial Services
|
|
$
|
45
|
|
Arbor Memorial Services
|
|
$
|
267
|
|
|
Stonemor Partners
|
|
$
|
180
|
|
|
Carriage Services
|
|
$
|
41
|
|
Carriage Services
|
|
$
|
92
|
|
|
Carriage Services
|
|
$
|
179
|
|
|
Stonemor Partners
|
|
$
|
24
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rock of Ages
|
|
$
|
30
|
|
|
Rock of Ages
|
|
$
|
47
|
|
|
Rock of Ages
|
|
$
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Margins
& Growth:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LTM Gross Margin
|
|
|
LTM EBITDA Margin
|
|
|
|
|
3 Year Revenue CAGR
|
|
|
Stonemor Partners
|
|
|
58
|
%
|
|
InvoCare
|
|
|
26
|
%
|
|
Stonemor Partners
|
|
|
11
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
InvoCare
|
|
|
42
|
%
|
|
Service Corp. International
|
|
|
24
|
%
|
|
Rock of Ages
|
|
|
8
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matthews International
|
|
|
39
|
%
|
|
Carriage Services
|
|
|
23
|
%
|
|
Arbor Memorial Services
|
|
|
7
|
%
|
Carriage Services
|
|
|
31
|
%
|
|
Stewart Enterprises
|
|
|
19
|
%
|
|
InvoCare
|
|
|
6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rock of Ages
|
|
|
26
|
%
|
|
Matthews International
|
|
|
17
|
%
|
|
Carriage Services
|
|
|
5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service Corp. International
|
|
|
21
|
%
|
|
Arbor Memorial Services
|
|
|
16
|
%
|
|
Matthews International
|
|
|
3
|
%
|
Stewart Enterprises
|
|
|
18
|
%
|
|
Stonemor Partners
|
|
|
13
|
%
|
|
Service Corp. International
|
|
|
1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Arbor Memorial Services
|
|
|
18
|
%
|
|
Rock of Ages
|
|
|
12
|
%
|
|
Stewart Enterprises
|
|
|
(2
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Market capitalization figures are as of October 13, 2010.
Operating figures for the comparable companies have been
calculated using data from the twelve-month period ended
June 30, 2010 (for Boral LTD, Carriage Services Inc.,
Granitifiandre s.p.a., HeidelbergCement AG, InvoCare LTD,
Lafarge SA, Martin Marietta Materials Inc., Matthews
International Corporation, Rocamat, Service Corp. International,
Stonemor Partners LP, and Vulcan Materials Company),
July 25, 2010 (for Arbor Memorial Services Inc.) or
July 31, 2010 (for Stewart Enterprises Inc.), as reflected
in these companies periodic reports filed with the SEC.
Based on the results of the benchmarking analysis described
above, Covington determined that overall, Rock of Ages
consistently ranked towards the bottom of its peer group in
terms of size and margins. Covington noted that, although the
Company ranked towards the top of its peer group in terms of
revenue
49
growth, management considered its industry a low growth industry
and was projecting lower growth in future years. Covington
determined that these findings confirmed that the consideration
to be paid in the merger reflected multiples that were favorable
and thus supported its opinion.
Comparable
Transaction Analysis
Covington also reviewed publicly available information to
identify transactions involving building materials, quarrying,
and death care companies similar to the Company in that they
serve similar customers, offer similar products and services, or
have similar operating or financial characteristics. These
criteria were consistently applied in this review, and no
transactions involving companies which met some or all of these
criteria were deliberately excluded from the scope of this
review or from being selected. This review targeted transactions
during approximately the three year period prior to the
announcement on May 7, 2010 of Parents initial
acquisition proposal, based on Covingtons view that older
transactions could be considered stale or irrelevant. Covington
selected, and analyzed publicly available financial information
for, the following twelve merger and acquisition transactions
completed no earlier than May 2007, involving building
materials, quarrying, and death care companies (the transactions
are categorized by the industry grouping of each target company):
Building
Materials/Quarrying
|
|
|
|
|
Date
|
|
|
|
|
Announced
|
|
Acquiror
|
|
Target
|
|
Jul-10
|
|
Private Assets bought by individuals
|
|
CEMEX, Non-Core Aggregates and Concrete Block Assets
|
Jun-09
|
|
Holcim
|
|
CEMEX Australia
|
Jun-09
|
|
Martin Marietta Materials
|
|
Cemex
|
Jul-08
|
|
Adelaide Brighton
|
|
Hanson Building Products
|
Apr-08
|
|
Granitifiandre
|
|
Giulio Tanini Spa
|
Apr-08
|
|
Martin Marietta Materials
|
|
Vulcan Materials
|
Apr-08
|
|
Guinness Peat Group
|
|
Gosford Quarry Holdings
|
May-07
|
|
Rocamat
|
|
Polycor
|
Death
Care
|
|
|
|
|
Date
|
|
|
|
|
Announced
|
|
Acquiror
|
|
Target
|
|
Apr-10
|
|
Matthews International
|
|
Reynoldsville Casket
|
Dec-09
|
|
Matthews International
|
|
United Memorial Products
|
Oct-09
|
|
Service Corp. International
|
|
Keystone North America
|
Oct-08
|
|
InvoCare
|
|
Southern Cross Funerals
|
Covington considered certain financial data relating to each
merger or acquisition transaction, including the target
companys actual revenue and EBITDA for the most recent
fiscal trailing twelve-month period prior to the announcement of
each transaction as well as each target companys total
enterprise value. As noted above, total enterprise value is
defined as the market price paid for a companys equity,
plus total assumed debt, less cash, where such data was
available. For each comparable transaction, Covington then
calculated total enterprise value as a multiple of that target
companys revenue and EBITDA for the most recent fiscal
trailing twelve-month period prior to the announcement of the
transaction, where such data was available. Covington then
calculated the median and mean figures for each case.
50
The resulting multiples are set forth in the table below,
categorized by the target companys industry grouping:
Building
Materials/Quarrying
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
Total
|
|
|
Enterprise
|
|
Enterprise
|
|
|
Value/
|
|
Value/
|
|
|
Trailing
|
|
Trailing
|
|
|
Twelve
|
|
Twelve
|
|
|
Month Period
|
|
Month Period
|
Comparable Transactions
|
|
Revenue
|
|
EBITDA
|
|
Median
|
|
|
1.1x
|
|
|
|
6.9x
|
|
Mean
|
|
|
1.1x
|
|
|
|
8.5x
|
|
Death
Care
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
Total
|
|
|
|
Enterprise
|
|
|
Enterprise
|
|
|
|
Value/Last
|
|
|
Value/Last
|
|
|
|
Twelve
|
|
|
Twelve
|
|
|
|
Month Period
|
|
|
Month Period
|
|
Comparable Transactions
|
|
Revenue
|
|
|
EBITDA
|
|
|
Median
|
|
|
1.4x
|
|
|
|
8.9x
|
|
Mean
|
|
|
1.6x
|
|
|
|
8.9x
|
|
Based on the results of the comparable transaction analysis
described above, Covington determined that the consideration to
be paid in the merger reflected multiples that were consistent
with multiples paid for similar companies over the three year
period prior to the announcement on May 7, 2010 of
Parents initial acquisition proposal.
The transactions utilized in the comparable transaction analysis
are not identical to the proposed merger. In evaluating the
transactions, Covington made judgments and assumptions with
regard to industry performance, general business, economic,
market, and financial conditions and other matters, many of
which are beyond the control of the Company. Covington believes
that mathematical analysis of comparable transactions (such as
determining means and medians) in isolation from other analyses
is not an effective method of evaluating transactions.
Discounted
Cash Flow Analysis
Covington performed a discounted cash flow analysis of the
Companys estimated after-tax free cash flows for the
fiscal years 2010 to 2014 based on both the Companys
management projections and its historical operations. The
management projections utilized in the discounted cash flow
analysis are set forth in this proxy statement under
SPECIAL FACTORS Financial Projections,
beginning at page 42. The discounted cash flow analysis was
performed to establish a range for the potential equity value of
the Company by determining a range for the net present value of
the Companys projected future cash flows. Covington
arrived at its
2010-2014
after-tax free cash flow estimates by adjusting after-tax
operating earnings reflected in the management projections for
certain non-cash expenses and uses of cash not reflected in the
Companys income statement, including: adjustments for
depreciation and amortization, changes in net working capital,
and capital expenditures. The resulting
2010-2014
free cash flow estimates were $4.8 million,
$5.3 million, $5.7 million, $6.1 million, and
$6.6 million, respectively.
Covington calculated indications of net present value of the
Companys projected, after-tax free cash flows through
December 31, 2014 using discount rates ranging from 13% to
15%. The range of discount rates was calculated using a weighted
average cost of capital analysis which took into account the
comparable companies discussed above. Covington utilized these
comparable companies in order to determine the optimal capital
structure of the Company. Covington then utilized the average
debt/total capital and equity/total capital ratios of these
companies, as well as Company-specific estimates of cost of debt
and equity, to determine a
51
weighted average cost of capital. Based on this calculation,
Covington determined that a range of discount rates of 13%-15%
was appropriate.
As described above, after-tax free cash flows were calculated as
the after-tax operating earnings of the Company adjusted to add
back non-cash expenses and to deduct uses of cash not reflected
in the income statement. Covington then added to the present
value of the after-tax free cash flows the terminal value of the
Company at December 31, 2014, discounted back to the
present using the same discount rates. The terminal value was
computed by applying an EBITDA exit multiple of 6.0x
8.0x. Covington determined that this range of exit multiples was
appropriate based on a review of the trading multiples of the
smaller capitalization companies included in the group of twelve
comparable companies discussed above. Covington considered these
to be reasonable multiples that it would expect the Company to
sell for in the future, based on Covingtons analyses and
experience. Covington then subtracted the Companys net
debt calculated as total debt less cash. This analysis resulted
in an illustrative range of equity values of the Company ranging
from $24.259 million to $39.229 million, based on a
discounted cash flow analysis using the Companys
projections. Covington determined that this range supported its
opinion as to fairness, as the high end of the illustrative
equity range was less than consideration to be paid for the
equity of the Company in the merger. The terminal value of the
Company was also computed by discounting the projected,
after-tax free cash flows through perpetuity, assuming perpetual
growth rates ranging from 2.0% to 4.0% per year and using
discount rates of 13% to 15%. Based on the fact that the Company
operates in a low to no growth industry and that the
Companys management projected 5% growth in the near
future, Covington determined that a range of perpetual growth
rates from 2%-4% was appropriate. This analysis resulted in an
illustrative range of equity values of the Company ranging from
$18.823 million to $34.384 million based on a
discounted cash flow analysis of the Companys projections.
Covington determined that this range supported its opinion, as
the high end of the illustrative equity range was less than
consideration to be paid for the equity of the Company in the
merger.
Trading
Price Premium Analysis
Covington also reviewed closing price trading averages for the
Companys shares of Class A common stock. Covington
considered the five trading day, 30 trading day, three-month,
six-month, and
12-month
average closing prices for each respective trading period ending
on May 7, 2010, the day of the last trading session prior
to the public announcement of Parents initial proposal to
acquire 100% ownership of Rock of Ages. The average closing
prices for these time periods were $3.43, $3.35, $3.24, $3.14,
and $2.85 respectively. Covington considered the fact that the
$5.25 price per share offered by Parent represented 53%, 57%,
62%, 67%, and 84% premiums respectively, to the respective
average closing price over these time periods and determined
that these premiums supported its opinion.
Conclusion
Based on the foregoing analyses, on October 15, 2010,
Covington delivered to the Companys special committee and
board of directors Covingtons oral opinion, subsequently
confirmed in writing, that, as of the date of its opinion, based
upon and subject to the assumptions, limitations,
qualifications, and factors contained in its opinion, the $5.25
per share merger consideration to be received by the
Companys shareholders in the merger is fair, from a
financial point of view, to such shareholders.
In performing its analyses, Covington made numerous judgments
and assumptions with respect to industry performance, general
business, economic, market and financial conditions and other
matters, many of which are beyond the control of the Company.
Any estimates contained in or underlying these analyses,
including estimates of the Companys future performance,
are not necessarily indicative of actual values or predictive of
future results or values, which may be significantly more or
less favorable than those estimates. Additionally, analyses
relating to the values of businesses or assets do not purport to
be appraisals or necessarily reflect the prices at which
businesses or assets may actually be sold or the prices at which
any securities have traded or may trade at any time in the
future. Accordingly, these analyses and estimates are inherently
subject to substantial uncertainty.
52
The foregoing description of Covingtons analyses in
connection with the rendering of its opinion is a summary only.
You should be aware that the preparation of a fairness opinion
is a complex analytical process involving various determinations
as to the most appropriate and relevant quantitative and
qualitative methods of financial analyses and the application of
those methods to the particular circumstances.
Covington was retained to act as the financial advisor to the
Companys special committee, based on Covingtons
familiarity with the Company and experience in transactions
similar to the merger. Pursuant to the engagement letter with
Covington, as compensation for its services in connection with
the proposed transaction, the Company will pay Covington a fee
in an amount equal to 1.5% of the Purchase Consideration (as
defined in the Covington engagement letter), which amount is
estimated to be approximately
$[ ] and
payment of which is contingent upon consummation of the merger.
In the Covington engagement letter, the Company also agreed to
pay Covington $250,000 upon rendering its written opinion,
whether or not the opinion was favorable. The Company has also
agreed to reimburse Covington for its
out-of-pocket
expenses incurred in connection with its engagement as the
special committees financial advisor, including the fees
and disbursements of counsel, and to indemnify Covington and
related persons against certain liabilities relating to or
arising out of services performed by Covington as financial
advisor to the Company.
Covington has, from time to time, provided certain investment
banking and other financial services to the Company or its
affiliates and has received compensation for such services. In
the ordinary course of its business, Covington may trade in the
securities and other instruments and obligations of the Company
for its own account and for the accounts of its customers and,
accordingly, may at any time hold a long or short position in
such securities, instruments and obligations.
Alternatives
to the Merger
Parent and the members of the Swenson Granite Group chose the
merger structure because it was the most efficient means to
acquire the entire equity interest in the Company and provide
cash to the Companys shareholders to the extent such
shareholders shares are converted in the merger into the
right to receive the $5.25 per share merger consideration. The
merger transaction described in this proxy statement was
selected in part because it required only one step instead of
two steps, without the necessity of acquiring enough shares to
execute a back-end, short-form merger as would have been
required if a tender offer were employed, and could be
coordinated with the timing of the proposed Financing for the
merger.
Because the members of the Swenson Granite Group did not
envision a transaction that would have allowed any of the
Companys shareholders not affiliated with Parent to retain
a direct or indirect ownership interest in Rock of Ages or that
would have resulted in Rock of Ages having publicly-traded
securities if Parents offer to acquire the Company was
accepted and recommended by the special committee and approved
by the Companys board of directors, they concluded that
bank financing without any public equity financing component was
the only feasible financing strategy for the merger.
In light of the fact that over the course of a lengthy process
to solicit parties interested in acquiring the Company conducted
by the special committee with Covingtons assistance, no
alternative proposal to acquire the Company was submitted, the
Companys most likely alternative to the merger described
herein would be to continue to operate as a public company. See
SPECIAL FACTORS Plans for Rock of Ages if the
Merger is Not Completed.
Certain
Effects of the Merger
Conversion
of Outstanding Rock of Ages Common Stock and Cash-Out of
Stock Options
If the merger agreement is approved by the Companys
shareholders and the other conditions to the closing of the
merger are either satisfied or waived, Merger Sub will be merged
with and into the Company, with the Company surviving the merger
as a wholly owned subsidiary of Parent.
53
When the merger is completed, (1) all shares of the
Companys common stock that are held in the Companys
treasury, or by Parent, Merger Sub or by any wholly owned
subsidiary of Parent, will be cancelled and retired and will
cease to exist without any consideration payable therefor;
(2) each other share of the Companys common stock
issued and outstanding immediately prior to the effective time
of the merger (other than any share as to which a dissenting
shareholder has properly asserted dissenters rights under
the VBCA) will be converted into the right to receive the merger
consideration in cash without interest and subject to any
withholding taxes required by applicable tax law; and
(3) the limited liability company interests of Merger Sub
issued and outstanding immediately prior to the effective time
of the merger shall be converted into and become one validly
issued, fully paid and non-assessable share of the
Companys Class B common stock.
From and after the effective time of the merger, each holder of
shares of our common stock will cease to have any rights with
respect to the shares other than the right to receive the merger
consideration or to receive payment of the appraised value of
the shares if the holder of such shares has properly asserted
his or her dissenters rights and demanded payment under
Section 13.21 of the VBCA.
Prior to the effective time of the merger, the Company will
cause each outstanding option to purchase shares of the
Companys Class A common stock issued under any
Company equity plan to become fully vested and exercisable. At
the effective time of the merger, each such option outstanding
as of immediately prior to the effective time of the merger will
be cancelled and the holder of such option will be entitled to
receive with respect to each such option only a cash payment
from the Company, as the surviving corporation, equal to the
product of (1) the excess, if any, of the merger
consideration over the per-share exercise price of such stock
option, multiplied by (2) the number of Company shares
issuable under such stock option (which amount will be payable
without interest, net of any withholding tax). Options to
purchase shares of the Companys Class A common stock
which have an exercise price per share equal to or greater than
the merger consideration will be cancelled as of the effective
time of the merger without the payment of any consideration.
Parent and the Company, as the surviving corporation, will
cause, and will make appropriate arrangements as may be
necessary to allow, the lump sum cash payments required to be
paid with respect to the outstanding options to be paid within
five business days of the effective time of the merger.
See THE MERGER AGREEMENT for a more detailed
description of the effects of the merger.
Effect
on Ownership Structure of Rock of Ages
At the effective time of the merger, the Companys current
shareholders (other than those shareholders who are members of
Parent at the effective time of the merger) will cease to have
ownership interests in the Company or rights as Rock of Ages
shareholders. Therefore, current shareholders of the Company
that are not members of Parent at the effective time of the
merger will not participate in any earnings or growth of Rock of
Ages following the effective time of the merger and will not
benefit from any increase in the value of Rock of Ages following
the effective time of the merger.
Effect
on Listing, Registration and Status of the Companys Common
Stock
The Companys Class A common stock is currently
registered under the Exchange Act and is quoted on The NASDAQ
Global Market under the symbol ROAC. As a result of
the merger, the Company will be a privately-held, wholly owned
subsidiary of Parent, and there will be no public market for its
common stock. After the merger, the Companys Class A
common stock will cease to be quoted on The NASDAQ Global
Market, and price quotations with respect to sales of shares of
the Companys Class A common stock in the public
market will no longer be available. In addition, registration of
the Class A common stock under the Exchange Act will be
terminated. This termination will make certain provisions of the
Exchange Act, such as the requirement of furnishing a proxy or
information statement in connection with shareholders
meetings, no longer applicable to the Company. After the
effective time of the merger, Rock of Ages will also no longer
be required to file periodic reports with the SEC.
54
Effect
on Organization and Management of Rock of Ages
The articles of incorporation and bylaws of the Company, in each
case as in effect immediately prior to the effective time of the
merger, will be the articles of incorporation and bylaws of the
Company, as the surviving corporation. The managers of Merger
Sub and the officers of the Company immediately prior to the
effective time of the merger will, from and after the effective
time of the merger, be the initial directors and officers,
respectively, of the Company, as the surviving corporation,
until their successors are duly elected or appointed and
qualified or until their earlier death, resignation or removal.
The officers and directors of Rock of Ages, as the surviving
corporation, will hold office in accordance with the articles of
incorporation and bylaws of the Company, as the surviving
corporation.
It is expected that, upon consummation of the merger, the
operations of Rock of Ages will be conducted substantially as
they currently are being conducted; however, Rock of Ages will
not be subject to the obligations and constraints, and the
related direct and indirect costs and personnel requirements,
associated with being a public company. The management of Parent
has advised the Company that it does not have any present plans
or proposals that relate to, or would result in, an
extraordinary corporate transaction following completion of the
merger involving the Companys corporate structure,
business or management, such as a merger, reorganization,
liquidation, relocation of any operations or sale or transfer of
a material amount of assets. It is expected, however, that
following the merger, the Companys management will
continuously evaluate and review the Companys business and
operations and may develop new plans and proposals that they
consider appropriate to maximize the value of the Company.
Parent reserves the right to make any changes deemed appropriate
in light of its evaluation and review or in light of future
developments.
Beneficial
and Detrimental Effects
The benefits of the merger to the Companys shareholders
whose shares are converted into the right to receive the $5.25
per share merger consideration are the right to receive such
merger consideration for their shares of our common stock,
representing a substantial premium to historical trading prices
for the Class A common stock, and the elimination of the
risk of continuing their investment in Rock of Ages. The
detriments of the merger to such shareholders (other than
shareholders who are members of Parent as of the effective time
of the merger) are that they will cease to participate in our
future earnings and growth, if any, and that the receipt of the
payment for their shares in the merger could be a taxable event
for federal income tax purposes. See SPECIAL
FACTORS Certain Material U.S. Federal Income Tax
Consequences.
A benefit of the merger to the Companys shareholders who
are also members of Parent is that, as members of Parent, they
will continue to indirectly participate in the Companys
future earnings and growth, while our shareholders who are not
members of Parent will no longer be able to participate in the
Companys future earnings and growth, if any. Benefits of
the merger to Parent include the fact that Parent will own 100%
of the outstanding capital stock of the Company and accordingly,
will benefit directly from the Companys future earnings
and growth.
Detriments of the merger to Parent and its members include the
lack of liquidity for the Companys common stock following
the merger, the risk that the Company will decrease in value
following the merger, the incurrence of debt to finance the
merger, the payment by the Company of approximately
$[ ] million in transaction costs and
estimated fees and the expenses related to the merger and
financing transactions. See SPECIAL FACTORS
Financing of the Merger and SPECIAL
FACTORS Estimated Fees and Expenses of the
Merger.
Effect
on the Swenson Granite Groups Interest in Net Book Value
and Net Earnings
After consummation of the merger, Parent will own all of the
outstanding common stock of the surviving corporation and will
benefit from any future earnings or growth of Rock of Ages. From
and after the effective time of the merger, the Swenson Granite
Group members indirect interest in the net book value and
net earnings of Rock of Ages will be 91.22%, based on their
holdings of Parents outstanding capital stock. The
Companys public shareholders, to the extent such
shareholders shares are converted in the merger into the
55
right to receive the $5.25 per share merger consideration, will
no longer hold any direct or indirect equity interest in Rock of
Ages and therefore will no longer own any interest in its net
book value or net earnings.
Immediately after the merger, based on the Companys
audited financial statements for the fiscal year ended
December 31, 2009, the members of the Swenson Granite Group
would have an interest equal to approximately $24,178,053 in the
Companys net book value and $731,915 in the surviving
corporations net earnings. The members of the Swenson
Granite Group would also have an interest equal to approximately
$25,990,444 in the Companys net book value as of
October 2, 2010. The following table sets forth the effect
of the merger on the interest of each member of the Swenson
Granite Group in the net book value and net earnings of Rock of
Ages, based on each Swenson Granite Group members holdings
of Parents outstanding capital stock immediately after the
effective time of the merger. The amounts set forth in this
paragraph and in the following table do not give effect to the
indebtedness that Parent and the Company, as the surviving
company in the merger, will incur in connection with the merger.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Book Value
|
|
Earnings/(Loss)
|
|
|
December 31, 2009
|
|
Oct. 2, 2010
|
|
December 31, 2009
|
|
|
Dollar
|
|
%
|
|
Dollar
|
|
%
|
|
Dollar
|
|
%
|
|
|
Increase
|
|
Increase
|
|
Increase
|
|
Increase
|
|
Increase
|
|
Increase
|
|
Kurt M. Swenson,
as the sole trustee of the Kurt M. Swenson Revocable Trust of
2000
|
|
$
|
4,971,375
|
|
|
|
122.6
|
%
|
|
$
|
5,344,030
|
|
|
|
122.6
|
%
|
|
$
|
150,493
|
|
|
|
122.6
|
%
|
Kevin C. Swenson,
as the sole trustee of the Kevin C. Swenson Revocable Trust of
1994
|
|
$
|
5,075,717
|
|
|
|
138.8
|
%
|
|
$
|
5,456,194
|
|
|
|
138.8
|
%
|
|
$
|
153,652
|
|
|
|
138.8
|
%
|
Robert L. Pope and Nancy Pope
|
|
$
|
1,670,878
|
|
|
|
282.9
|
%
|
|
$
|
1,796,127
|
|
|
|
282.9
|
%
|
|
$
|
50,581
|
|
|
|
282.9
|
%
|
Richard C. Kimball and Christina W. Kimball, individually,
jointly and as trustee of the Christina W. Kimball Revocable
Trust 2/21/2001
|
|
$
|
91,573
|
|
|
|
35.5
|
%
|
|
$
|
98,437
|
|
|
|
35.5
|
%
|
|
$
|
2,772
|
|
|
|
35.5
|
%
|
Charles M. Waite
|
|
$
|
114,972
|
|
|
|
71.5
|
%
|
|
$
|
123,590
|
|
|
|
71.5
|
%
|
|
$
|
3,480
|
|
|
|
71.5
|
%
|
Karen Swenson
|
|
$
|
224,946
|
|
|
|
180.8
|
%
|
|
$
|
241,808
|
|
|
|
180.8
|
%
|
|
$
|
6,810
|
|
|
|
180.8
|
%
|
Lois S. Moore Revocable Trust
|
|
$
|
768,854
|
|
|
|
140.9
|
%
|
|
$
|
826,487
|
|
|
|
140.9
|
%
|
|
$
|
23,275
|
|
|
|
140.9
|
%
|
Peter B. Moore
|
|
$
|
196,586
|
|
|
|
169.5
|
%
|
|
$
|
211,322
|
|
|
|
169.5
|
%
|
|
$
|
5,951
|
|
|
|
169.5
|
%
|
Peter A. Friberg
|
|
$
|
454,554
|
|
|
|
81.7
|
%
|
|
$
|
488,627
|
|
|
|
81.7
|
%
|
|
$
|
13,760
|
|
|
|
81.7
|
%
|
Guy A. Swenson, III
|
|
$
|
253,442
|
|
|
|
428.6
|
%
|
|
$
|
272,440
|
|
|
|
428.6
|
%
|
|
$
|
7,672
|
|
|
|
428.6
|
%
|
Jon M. Gregory
|
|
$
|
139,318
|
|
|
|
153.9
|
%
|
|
$
|
149,761
|
|
|
|
153.9
|
%
|
|
$
|
4,217
|
|
|
|
153.9
|
%
|
Interests
of Certain Persons in the Merger
In considering the recommendations of the board of directors,
you should be aware that certain of the Companys executive
officers and directors have interests in the transaction that
are different from, or are in addition to, the interests of the
Companys shareholders generally. The special committee and
the board of directors were aware of these potential or actual
conflicts of interest and considered them along with other
matters when they determined to recommend the merger. See
SPECIAL FACTORS Background of the Merger.
Ownership
of Parent and the Members of the Swenson Granite Group in the
Surviving Corporation Following the Merger.
Kurt Swenson, the Chairman of Parent and non-executive Chairman
of Rock of Ages, together with his brother, Kevin Swenson, Vice
President and a director of Parent, and Robert Pope, President
and Chief Executive Officer and a director of Parent, own
approximately 71% of Parent and approximately 31% of all
outstanding shares of common stock of Rock of Ages.
56
Prior to the merger, they, together with the other members of
the Swenson Granite Group, will contribute to Parent a total of
258,326 Class A shares and 2,449,793 Class B shares of
Rock of Ages in exchange for additional shares of membership
interest in Parent in accordance with the terms of the
contribution agreements each member of the Swenson Granite Group
has entered into with Parent, and will not receive the merger
consideration for those Rock of Ages shares contributed to
Parent. See VOTING AND CONTRIBUTION AGREEMENTS
Contribution Agreements.
As members of Parent, Kurt Swenson, Kevin Swenson, Robert Pope
and all other members of the Swenson Granite Group, as well as
all other shareholders of the Company who are also members of
Parent, will continue to indirectly benefit from the
Companys future earnings and growth. Further, as
controlling members of Parent after the effective time of the
merger, Kurt Swenson, Kevin Swenson and Robert Pope will
effectively control the Company.
Interests
of Rock of Ages Officers and Directors
As shareholders in the Company, the directors and executive
officers of the Company, other than Kurt Swenson, our
non-executive Chairman, and Richard Kimball, one of our
directors, will be entitled to receive the merger consideration
upon surrendering the shares of Rock of Ages common stock held
by them at the effective time of the merger. As noted above,
Kurt Swenson and Richard Kimball, as members of the Swenson
Granite Group, will not receive the merger consideration with
respect to any shares they contribute to Parent prior to the
merger in exchange for shares of membership interest in Parent
under the contribution agreements. Under the terms of a
contribution agreement, Kurt Swenson will contribute 130,000
Class A and 1,005,000 Class B shares of our common
stock in exchange for additional shares of membership interest
in Parent and Richard Kimball, together with his wife, will
contribute 72,126 Class A shares of our common stock in
exchange for additional shares of membership interest in Parent.
In addition to enjoying the benefits of the merger as
shareholders of the Company generally, Rock of Ages
officers and directors will also benefit from the acceleration
of their stock options in connection with the merger. In
connection with the merger, prior to the effective time of the
merger, the Company will cause each outstanding option to
purchase shares of the Companys Class A common stock
under any Company equity plan to become fully vested and
exercisable. At the effective time of the merger, each such
option outstanding as of immediately prior to the effective time
of the merger will be cancelled and the holder of such option
will be entitled to receive with respect to each such option
only a cash payment from the Company, as the surviving
corporation, equal to the product of (1) the excess, if
any, of the merger consideration over the exercise price per
share of such option multiplied by (2) the number of shares
of the Companys Class A common stock issuable upon
exercise of such option. Options to purchase shares of the
Companys Class A common stock which have an exercise
price per share equal to or greater than the merger
consideration will be cancelled as of the effective time of the
merger without the payment of any consideration. See THE
MERGER AGREEMENT Treatment of Stock Options.
In addition, it is expected that upon consummation of the
merger, Donald Labonte, the Companys President and Chief
Executive Officer and a director of the Company, will become the
Chief Operating Officer of the Company, reporting to Robert
Pope, the President and Chief Executive Officer of Parent. In
that capacity, as set forth in the initial Swenson Proposal
submitted to the Companys board of directors on
May 6, 2010, Mr. Labonte will be offered the
opportunity to purchase shares of membership interest in Parent
on similar terms as key officers of Parent have purchased such
shares. Parent has no agreement or understanding with
Mr. Labonte as to the terms of such offer or whether he
will accept such offer.
57
The following table reflects the total amount of cash that each
director and named executive officer (as defined in
Item 402(a)(3) of
Regulation S-K)
will receive as merger consideration, based on their holdings as
of October 29, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Shares
|
|
|
Number of
|
|
|
|
|
|
|
|
|
Beneficially Owned
|
|
|
Options to be
|
|
|
Total Merger
|
|
Name
|
|
Position
|
|
to be Settled
|
|
|
Settled
|
|
|
Consideration
|
|
|
Kurt M. Swenson
|
|
Chairman
|
|
|
|
|
|
|
|
|
|
|
|
|
Frederick E. Webster Jr.
|
|
Director
|
|
|
5,000
|
|
|
|
|
|
|
$
|
26,250
|
|
Pamela G. Sheiffer
|
|
Director
|
|
|
5,000
|
|
|
|
|
|
|
$
|
26,250
|
|
Donald M. Labonte
|
|
Director, President and CEO
|
|
|
3,000
|
|
|
|
85,000
|
|
|
$
|
238,450
|
|
Richard C. Kimball
|
|
Director and Vice Chairman
|
|
|
|
|
|
|
|
|
|
|
|
|
James L. Fox
|
|
Director
|
|
|
5,000
|
|
|
|
|
|
|
$
|
26,250
|
|
Paul H. Hutchins
|
|
Vice President Administration
|
|
|
12,200
|
|
|
|
10,000
|
|
|
$
|
90,250
|
|
Laura A. Plude
|
|
CFO, Vice President Finance
|
|
|
3,000
|
|
|
|
10,000
|
|
|
$
|
41,950
|
|
Employment
with the Surviving Corporation
It is expected that the executive and other officers of the
Company immediately prior to the effective time of the merger
will remain executive and other officers of the surviving
corporation and, except as described immediately below with
respect to Mr. Labonte, will continue their employment on the
terms in effect immediately prior to the effective time. It is
expected that, at the effective time of the merger, Donald
Labonte, currently the Companys President and Chief
Executive Officer, will remain as President of the Company and
will also have the title of Chief Operating Officer (rather than
Chief Executive Officer, which title will be assumed by Robert
Pope who will also continue as the Chief Executive Officer of
Parent) and will report to Mr. Pope. Except for this change of
title and reporting responsibility, it is expected that,
following the effective time of the merger, Mr. Labontes
employment with the Company will continue under the terms of his
existing five-year employment agreement with the Company dated
as of July 1, 2008.
Directors
of the Surviving Corporation Post Transaction
Upon consummation of the merger, the managers of Merger Sub
immediately prior to the effective time of the merger will, from
and after the effective time of the merger, be the directors of
the Company, as the surviving corporation, until their
successors are duly elected and qualified or until their earlier
resignation or removal. Kurt Swenson, our non-executive Chairman
and the Chairman of Parent, Kevin Swenson, Vice President and a
director of Parent, and Robert Pope, the President and Chief
Executive Officer and a director of Parent, are the managers of
Merger Sub.
Indemnification
and Insurance
Pursuant to the merger agreement, the Company, as the surviving
corporation in the merger, will indemnify, and advance
reasonable expenses to, the current and former directors and
officers of the Company and its subsidiaries (referred to herein
as the indemnified parties) against all claims,
losses, liabilities, damages, judgments, inquiries, fines,
amounts paid in settlement and reasonable fees, costs and
expenses, including reasonable attorneys fees and
disbursements, incurred in connection with any proceeding,
whether civil, criminal, administrative or investigative,
arising out of, pertaining to or in connection with the fact
that the indemnified party is or was an officer, director,
employee, fiduciary or agent of the Company, or of another
entity if the indemnified partys service was at the
request of or for the benefit of the Company, whether asserted
or claimed prior to, at or after the effective time of the
merger. All rights to indemnification and exculpation from
liability existing in favor of any indemnified parties as
provided under applicable laws and the articles of incorporation
and bylaws of the Company and its subsidiaries as of the date of
the merger agreement are to survive the merger with respect to
events occurring up to and including the time of the merger.
58
For a period of six years following the merger, Parent is
required to maintain in effect the current policies of
directors and officers liability insurance and
fiduciary liability insurance maintained by the Company and its
subsidiaries for the indemnified parties and any other
employees, agents or other individuals otherwise covered by
those insurance policies prior to the effective time of the
merger with respect to matters occurring at or prior to the
effective time of the merger (including the merger and the other
transactions contemplated by the merger agreement). See
THE MERGER AGREEMENT Indemnification and
Directors and Officers Insurance.
Compensation
of the Special Committee
In consideration of the expected time and other commitments that
would be required of special committee members generally and the
chairman of the special committee in particular, the board of
directors determined that the chairman of the special committee
would receive a fixed amount of $50,000 and each other member of
the special committee would receive a fixed amount of $35,000 as
compensation for their service on the special committee, in each
case without regard to whether the special committee were to
recommend approval of the merger or any other transaction or
whether the merger or any other transaction were consummated.
Accordingly, Mr. Fox, chairman of the special committee,
received $50,000, and Ms. Sheiffer and Dr. Webster,
the other members of the special committee, each received
$35,000 as compensation for their services on the special
committee. These payments were all made on June 28, 2010.
In addition, the members of the special committee are entitled
to receive reimbursement for the expenses incurred in connection
with their service on the special committee.
Certain
Risks in the Event of Bankruptcy
If the Company is insolvent at the effective time of the merger
or becomes insolvent as a result of the merger, the transfer of
funds representing the $5.25 per share merger consideration
payable to shareholders upon completion of the merger may be
deemed to be a fraudulent conveyance under
applicable law and therefore may be subject to claims of
creditors of the Company. If such a claim is asserted by the
creditors of the Company following the merger, there is a risk
that persons who were shareholders at the effective time of the
merger will be ordered by a court to return to Rock of
Ages trustee in bankruptcy all or a portion of the merger
consideration they received upon the completion of the merger.
Based upon the projected capitalization of Rock of Ages at the
time of the merger and projected results of operations and cash
flow following the merger, the board of directors of Rock of
Ages has no reason to believe that Rock of Ages and its
subsidiaries, on a consolidated basis, will be insolvent
immediately after giving effect to the merger. Parent and Merger
Sub have also made certain representations and warranties in the
merger agreement that, subject to the accuracy of the
information provided by Company, upon the completion of the
transactions contemplated by the merger agreement and at the
effective time of the merger, Parent, Rock of Ages (as the
surviving corporation) and their respective subsidiaries, taken
as a whole, will be solvent.
Financing
of the Merger
The merger agreement is not subject to a financing condition.
However, Parent is seeking debt financing in connection with the
merger and will require that financing in order to consummate
the merger and related transactions. Parent has received a
commitment letter from the Lenders, pursuant to which the
Lenders have committed, subject to certain specified conditions
discussed below, to enter into a definitive financing agreement
(in the form attached to the commitment letter) to provide the
Financing. The commitment letter will remain outstanding through
February 18, 2011 unless extended by the Lenders. In the
merger agreement, Parent has agreed to use its best efforts to
maintain in effect the commitment letter and, prior to the
effective time of the merger, execute the definitive financing
agreement attached to the commitment letter and consummate the
Financing. The Financing is expected to consist of:
|
|
|
|
|
the $20 million Revolving Loan, to be used primarily to
fund the working capital needs of Parent, Rock of Ages (as the
surviving corporation) and its subsidiaries, finance accounts
receivable and inventory
|
59
|
|
|
|
|
and support the issuance of letters of credit, and as necessary
(subject to the terms of the definitive financing agreement) to
fund a portion of the costs of acquisition of Rock of Ages and
its subsidiaries, including repayment of certain existing
indebtedness of Rock of Ages and its subsidiaries; and
|
|
|
|
|
|
the $30 million Term Loans, to be used primarily to fund
the acquisition of Rock of Ages and its subsidiaries, including
the aggregate merger consideration, stock option cash-out
payments, transaction expenses, and repayment of certain
existing indebtedness of Parent, Rock of Ages (as the surviving
corporation), and its subsidiaries, and to finance capital
expenditures and other acquisitions.
|
Under the terms of the Financing, interest on the Revolving Loan
is payable monthly, and principal is payable on a revolving
basis. All outstanding principal balances and any accrued
interest with respect to the Revolving Loan will be due at
maturity three years from the date of closing. Each Term Loan
will fully amortize over a ten-year term with installments of
principal and interest payable monthly. The Financing will be
subject to certain financial covenants and conditions, and will
be collateralized by a perfected first lien (including first
mortgages) on all real and personal property of Parent, Rock of
Ages (as the surviving corporation) and the United States
subsidiaries of Rock of Ages.
The Revolving Loan will bear interest either at the Wall Street
Journal Prime Rate or LIBOR, in each case, plus an applicable
margin. The Term Loans will bear interest either at a fixed rate
based on the Lenders internal cost of funds at the time of
the initial closing plus 200 basis points or at a variable
rate based on either the Wall Street Journal Prime Rate or
LIBOR, in each case, plus an applicable margin.
Covenants and Conditions to the Financing.
The
Financing is subject to (a) the execution and delivery of
the definitive financing agreement in the form attached to the
commitment letter (with blanks, open items and disclosure
schedules appropriately completed and approved by the Lenders)
and all other related financing documents referenced in the
definitive financing agreement; (b) consummation of the
merger; and (c) satisfaction of the other covenants and
conditions set forth in the definitive financing agreement
including, but not limited, to the following:
|
|
|
|
|
receipt, review and approval of pro-forma financial statements
reflecting the consummation of the Financing and the merger and
month by month projected operating budgets and cash flow
statements for fiscal 2011;
|
|
|
|
review and acceptance of documentation with respect to the
approval and consummation of the transactions contemplated by
the merger agreement;
|
|
|
|
confirmation that Parent, Rock of Ages and its subsidiaries will
have at least $3,000,000 of excess availability under the
Revolving Loan at closing;
|
|
|
|
maintenance of a minimum debt service coverage ratio and a
maximum funded debt to EBITDA ratio;
|
|
|
|
other than as a result of the merger, Parent, Rock of Ages and
its subsidiaries may not undergo a change in controlling
interest or a change of key management figures without the
consent of the Lenders, which will not be unreasonably withheld;
|
|
|
|
receipt, review and acceptance of environmental assessments and
appraisals on the quarry locations of Parent, Rock of Ages and
its subsidiaries and confirmation that required loan to value
ratios based on the appraised values have been
satisfied; and
|
|
|
|
confirmation that there has been no material adverse change in
the condition of Parent, Rock of Ages and its subsidiaries or in
the status of any existing litigation with respect to the merger
or similar litigation initiated since the commitment letter date.
|
Alternative Financing.
Parent and Merger Sub
have agreed to use their best efforts to maintain the Financing
with the Lenders and execute the definitive financing agreement
in the form attached to the commitment letter. If, despite
Parent and Merger Subs best efforts, the financing
arrangements Parent has entered into with the Lender in
connection with the merger expire or are terminated, either in
whole or in part, prior to the closing of the merger, Parent and
Merger Sub are required to (1) promptly notify us of such
expiration or termination and the reasons for the expiration or
termination and (2) unless the merger agreement
60
has been terminated pursuant to its terms, then until the End
Date, use their best efforts to promptly arrange for adequate
alternative financing to replace the previous financing
arrangements. See THE MERGER AGREEMENT
Financing of the Merger by Parent. Parent currently has no
commitment with any lender to provide alternative financing,
should the Financing be unavailable to it to consummate the
merger.
Repayment of Financing.
Rock of Ages, as the
surviving corporation following the merger, anticipates that
obligations under the Financing will be repaid from a variety of
sources, including funds generated by the operations of Rock of
Ages and Parent. The source and allocation of various methods of
repayment of the debt facilities will be determined, and may be
modified, from time to time, based on market conditions and such
other factors deemed appropriate by Parent. Although there can
be no assurance, Parent believes that cash flow from combined
operations will be sufficient to service the interest and
principal repayment obligations with respect to the Financings
incurred to effect the merger for the foreseeable future.
Plans for
Rock of Ages if the Merger is Not Completed
It is expected that, if the merger is not completed, the current
management of the Company, under the direction of the board of
directors, will continue to manage the Company as an ongoing
business. From time to time, it is expected that Rock of Ages
will evaluate and review its business operations, properties,
dividend policy and capitalization, among other things, make
such changes as are deemed appropriate and continue to seek to
identify strategic alternatives to maximize shareholder value.
If the merger agreement is not approved by shareholders, or if
the merger is not consummated for any other reason, there can be
no assurance that any other transaction acceptable to the
Company will be offered or that the trading price of our shares
of Class A common stock or our business and operations will
not be adversely affected. In addition, if the merger is not
completed, depending upon the circumstances, we may be required
to reimburse certain expenses of Parent. See SPECIAL
FACTORS Estimated Fees and Expenses of the
Merger and THE MERGER AGREEMENT
Termination Fees and Expenses.
Estimated
Fees and Expenses of the Merger
Parent and Merger Sub currently estimate that they have incurred
or will incur a total of approximately
$[ ] million in fees and expenses in
connection with the merger and the related transactions, as set
forth in the table below:
|
|
|
|
|
|
|
Estimated
|
|
Expenses
|
|
Amount
|
|
|
Legal and accounting fees and expenses
|
|
|
750,000
|
|
Printing and mailing fees and expenses
|
|
|
5,000
|
|
Financing fees
|
|
|
425,000
|
|
Miscellaneous
|
|
|
50,000
|
|
Total
|
|
|
1,230,000
|
|
61
The Company currently estimates that it has incurred or will
incur a total of approximately
$[ ] million in fees and expenses in
connection with the merger and the related transactions, as set
forth in the table below:
|
|
|
|
|
|
|
Estimated
|
|
Expenses
|
|
Amount
|
|
|
Financial advisory fees and expenses
|
|
$
|
[ ]
|
|
Legal and accounting fees and expenses
|
|
$
|
1,250,000
|
|
Special committee fees and expenses
|
|
$
|
120,000
|
|
Printing and mailing fees and expenses
|
|
$
|
100,000
|
|
SEC filing fees
|
|
$
|
1,795
|
|
Miscellaneous
|
|
$
|
13,500
|
|
Total
|
|
|
[ ]
|
|
The above table does not include legal fees and other expenses
related to the litigation in connection with the merger. See
SPECIAL FACTORS Litigation Related to the
Merger. In general, all costs and expenses incurred in
connection with the merger agreement and the merger and the
other transactions contemplated by the merger agreement will be
paid by the party incurring such expense. Upon termination of
the merger agreement under certain circumstances, Parent or the
Company may be obligated to pay the reasonable fees and expenses
incurred by the other party in connection with the merger
agreement and the transactions contemplated thereby. See
THE MERGER AGREEMENT Termination Fees and
Expenses.
Regulatory
Approvals and Requirements
In connection with the merger, the Company will be required to
make certain filings with, and comply with certain laws of,
various federal and state governmental agencies, including:
|
|
|
|
|
filings with the SEC under the Securities Exchange Act of 1934,
as amended;
|
|
|
|
filing articles of merger with the Secretary of State of the
State of Vermont in accordance with the VBCA and Chapter 21
of Title 11 of the Vermont Statutes Annotated, as amended
after the approval of the merger agreement by the Companys
shareholders and the satisfaction or waiver of all other
conditions to the closing of the merger; and
|
|
|
|
certain notice filings with The NASDAQ Global Market.
|
It is currently expected that no prior regulatory approvals,
including under antitrust laws and regulations, will be required
in order to complete the merger.
Litigation
Related to the Merger
Rock of Ages is aware of two purported class action shareholder
lawsuits filed in connection with the merger.
The first action was filed by plaintiff Todd Semon (a purported
Rock of Ages shareholder) on behalf of Rock of Ages shareholders
in Vermont Superior Court, Washington County. Mr. Semon,
who has previously filed other purported class action lawsuits,
alleged that the Companys shareholders were injured or
threatened with injury arising from Parents initial
proposal to purchase all outstanding Rock of Ages capital stock
for $4.38 per share. The complaint, captioned
Semon v.
Rock of Ages Corp., et al.
,
No. 356-5-10
WnCv, was filed on or about May 19, 2010. The case was
subsequently removed to the United States District Court for the
District of Vermont on June 14, 2010 and is pending under
the caption
Semon v. Rock of Ages Corp., et
al.
,
No. 5:10-cv-00143-cr.
On November 22, 2010, Mr. Semon filed a motion to
amend his complaint. The proposed amended complaint (Semon
Amended Complaint) alleges federal jurisdiction and names
an additional plaintiff, Jerome Meister, who like
Mr. Semon, claims to be a Rock of Ages shareholder. In
addition to Rock of Ages, the Semon Amended Complaint names
Parent, Merger Sub and seven current directors
and/or
officers of Rock of Ages: Kurt M. Swenson, James L. Fox, Richard
C. Kimball, Donald Labonte, Laura A. Plude, Pamela G. Sheiffer,
Charles M. Waite and Frederick E. Webster, Jr.
(collectively, the Defendants).
62
The second action was filed by plaintiff The Vladimir Gusinsky
Revocable Trust (the Gusinsky Trust) in the United
States District Court for the District of Vermont. The Gusinsky
Trust, which, like Mr. Semon has previously filed other
purported class action lawsuits, alleges that the Companys
shareholders were injured or threatened with injury arising from
the proposed merger. The complaint, captioned The Vladimir
Gusinsky Revocable Trust v. Rock of Ages Corp., et
al.,
No. 5:10-cv-00262-cr,
was filed on October 27, 2010. On November 19, 2010,
the Gusinsky Trust filed an amended complaint (Gusinsky
Amended Complaint). The Gusinsky Amended Complaint names
the same defendants as the Semon Amended Complaint, but does not
name Laura A. Plude, the Companys Chief Financial Officer.
Both amended complaints challenge the $5.25 per share
transaction price as inadequate, allege certain purported
disclosure omissions relating to the merger and make a variety
of other allegations. Both amended complaints allege that the
individual defendants breached their fiduciary duties to Rock of
Ages shareholders and that the corporate defendants aided and
abetted those breaches. The amended complaints allege, among
other things:
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|
|
|
|
defendants Swenson, Labonte and Kimball, as well as former
director Charles Waite, will receive significant material
benefits as a result of the merger not available to other
shareholders, and as a result of those incentives, had unlawful
reasons to approve the merger. (Semon Amended Complaint
¶¶
58-59,
64;
Gusinsky Amended Complaint ¶¶ 50,
70-71,
77.)
|
|
|
|
the special committee was beholden to Swenson
Granite and did not run a fair process, and defendant officers
approved the merger to retain their positions in the Company.
(Semon Amended Complaint ¶¶
65-66.)
|
|
|
|
there is no evidence that the defendants made adequate efforts
to find a deal superior to the merger. (Semon Amended Complaint
¶ 65; Gusinsky Amended Complaint ¶¶
58-61,
69,
89.)
|
|
|
|
the $5.25 per share offer price is grossly
inadequate. (Semon Amended Complaint ¶¶ 62,
76-78;
Gusinsky Amended Complaint ¶¶ 67, 90.)
|
|
|
|
certain defendants are in possession of non-public
information concerning the financial condition and prospects of
ROAC, and especially the true value and expected increased
future value of ROAC and its assets, which they have not
disclosed to ROACs public stockholders. The Individual
Defendants, who constitute ROACs Board, are familiar with
the Companys future prospects but have not disclosed the
Companys true future potential. (Semon Amended
Complaint ¶ 92.)
|
|
|
|
the terms of the merger agreement substantially favor Swenson
Granite and are calculated to dissuade other offers. (Semon
Amended Complaint ¶¶
69-75;
Gusinsky Amended Complaint ¶¶
79-86.)
|
|
|
|
the defendants disclosures in the preliminary proxy
statement filed on October 29, 2010 were materially
inadequate, including with respect to efforts to find a deal
superior to the merger and with respect to Covingtons
analysis and relationship to the Company. (Semon Amended
Complaint ¶¶
79-93;
Gusinsky Amended Complaint ¶¶
53-62.)
|
|
|
|
because of the defendants conduct, it is highly unlikely
that a superior offer will be made. (Semon Amended Complaint
¶ 69; Gusinsky Amended Complaint ¶ 79.)
|
Mr. Semon has also argued that the Companys
reincorporation from the State of Delaware to the State of
Vermont in 2009 was part of a plan and scheme to take the
Company from the public shareholders on the cheap. Mr.
Semon asserts that ROACs reincorporation was an
attempt to take away from ROACs public shareholders strict
protections afforded them under Delaware law in
freeze-out transactions by controlling
shareholders.
Both Mr. Semon and the Gusinsky Trust seek an order certifying
the proposed class, granting preliminary and permanent
injunctive relief against the consummation of the merger, or, if
the merger is consummated, rescinding the merger
and/or
awarding rescissory damages and ordering an accounting, and an
award of costs and attorneys fees.
63
Defendants originally removed the Semon action to federal court
on the basis that Mr. Semons claims are barred under
the Securities Litigation Uniform Standards Act, 15 U.S.C.
§ 78bb (SLUSA). On June 21, 2010,
Defendants moved to dismiss the action on the basis that
(1) Mr. Semons claims are precluded under SLUSA
and (2) Mr. Semon fails to plead any injury. Plaintiff
filed a motion to remand on June 23, 2010, arguing that
SLUSA does not apply. The court heard argument on both motions
on September 13, 2010. Those motions remain pending.
On November 23, 2010, the defendants moved in both the
Semon and Gusinsky Trust actions to consolidate those actions
and to stay proceedings until a consolidated amended complaint
is filed. Those motions are currently pending. On
December 6, 2010, Defendants filed a motion to dismiss the
Gusinsky Amended Complaint. Plaintiff Semons motion to
amend his complaint is still pending.
From June 8, 2010 to June 30, 2010,
Mr. Semons counsel, Wolf Popper, and Skadden,
exchanged letters and emails regarding Wolf Poppers
request to meet with the special committee or its
representatives and to provide the special committee with the
analyses of the financial expert
retained by Mr. Semon to opine on the adequacy of the
Proposed Transaction. In a letter dated June 15, 2010
from Skadden to Wolf Popper, Skadden, on behalf of the special
committee, requested that Mr. Semon identify his financial
expert and the experts credentials and furnish to the
special committee as soon as possible the experts
preliminary opinion and all analyses supporting the opinion, and
indicated that the special committee would consider that
opinion, and would schedule a meeting with Mr. Semon and
his advisers upon being furnished with the requested
information. Given Mr. Semons assertion that the
$4.38 per share cash consideration offered in the Swenson
Proposal was insufficient, Skadden also invited Mr. Semon
to submit a higher bid in accordance with the process being
managed by Covington and applicable to other bidders, noting
that if he were deemed to be a credible bidder, the Company
would make confidential information available to him (which he
had requested) pursuant to an appropriate confidentiality
agreement.
In a subsequent exchange of letters dated June 16, 2010 and
June 18, 2010, Wolf Popper again requested non-public
information, purportedly to enhance their
views on value, and Skadden reiterated its prior
request for information regarding Mr. Semons
expert and his analyses, as well as the
special committees willingness to provide confidential
information to Mr. Semon if he sought to participate in the
sale process being conducted and, like other potential bidders,
executed an acceptable confidentiality agreement. Skadden also
reiterated the special committees willingness to meet with
Mr. Semon.
Nearly a week later, by email Wolf Popper again requested a
telephone call. Skadden replied that it would be willing to have
a call, but in advance of the call wished to know whether
Mr. Semon intended to provide the information regarding
Mr. Semons expert and his
analyses repeatedly requested by Skadden, noting
that [T]o date, notwithstanding our exchange of letters,
the Special Committee has received nothing of substance from
Mr. Semon nor from the firm he has retained as his
financial advisor.
Having received no response to this email, on June 30, 2010
Skadden sent another letter to Wolf Popper, again indicating the
special committees willingness to schedule a meeting with
Mr. Semon once it received the information Skadden had
repeatedly requested regarding Mr. Semons
expert and the experts analyses.
On July 1, Skadden and Covington received valuation
analyses (the Semon Valuations) and related
materials from Wolf Popper. The financial expert
which performed the Semon Valuations was not identified. The
Semon Valuations, and Covingtons and the special
committees review and conclusions regarding these
analyses, are described below.
The Semon Valuations consisted of two discounted cash flow
analyses (the Semon DCF Analyses) and two comparable
company transactions analyses, which yielded on the high
end a value range of $7.11-$7.55 per share of Company
common stock, and on the low end a range of
$5.95-$6.41 per share of Company common stock. Based on its
review, Covington concluded, and at meetings of the special
committee on July 8, 2010 and August 4, 2010 Covington
explained in detail to the special committee, that these ranges
of value were based on assumptions (or outright omissions in the
case of (iii)) in three key areas (i) the
Companys projected 2010 earnings, (ii) the value of
the Companys net operating loss (NOL)
carryforwards and Parents ability to utilize these NOL
carryforwards without limitation post-transaction and
(iii) the amount and
64
impact on the valuation of the Company of the Companys
long-term pension and similar liabilities that were
inconsistent with and substantially more favorable than those
assumptions provided by the Company to, and reviewed and
utilized by, Covington in their valuation analyses. In
Covingtons view, these assumptions were the principal
drivers of the per share value ranges reflected in the Semon
Valuations, which were well above those arrived at by Covington
from similar analyses conducted using what it understood to be
reasonable and appropriate assumptions provided by the Company
in these three key areas. Based on its review and analysis of
the Semon Valuations, Covington also concluded, and advised the
special committee at its July 8th and August 4th meetings, that
if Mr. Semons unidentified expert had
utilized the same valuation methodologies and the same
assumptions outside of these three key areas as were reflected
in the Semon Valuations (e.g., discount rates and comparable
transactions), but had used the same assumptions provided by the
Company to Covington and which Covington deemed reasonable with
respect to the Companys projected earnings and NOL
carryforwards utilization, and had taken into account the
Companys existing long-term pension and similar
liabilities, the result would have been a range of per share
values well below those reflected in the Semon Valuations. In
fact, according to Covingtons analyses reviewed with the
special committee, the results in most instances would have been
below the $4.38 per share price set forth in the initial May 6th
Swenson Proposal, and in all cases below the final agreed merger
consideration of $5.25 per share. Covingtons analyses
presented to the special committee indicated that the specific
impact on the valuation of the Company of these key, and in
Covingtons view, unjustified, assumptions used in the
Semon Valuations is as follows:
2010 Forecast
:
The high end
and low end Semon DCF Analyses resulted in
$7 million and $10 million increases, respectively, in
the value of the Company over the value yielded if the
Companys own forecasts were utilized. Both the high
end and low end Semon DCF Analyses assumed
that the Company would produce $8.7 million in cash flow
through reduced investment in working capital in 2010. This
significant decrease in working capital investment reflected in
the Semon DCF Analyses was unexplained in the materials provided
by Wolf Popper and is inconsistent with the Companys
financial history. Historically, in years in which the Company
and its revenues have grown, working capital investment also
increased. All Semon Valuations, however, assumed increasing
revenues significantly over 2009 levels, yet forecasted for
purposes of the Semon DCF Analyses decreasing levels of working
capital investment. The Company estimated on the other hand it
would actually need approximately $500,000 in additional working
capital investment in 2010. In addition to the discrepancy in
net working capital estimates, the high end Semon
Valuations also estimated earnings for 2010 in excess of the
Companys forecast. The Company forecast 2010 EBITDA of
$8-8.5 million, which Covington believed was a reasonable
estimate. The high end Semon Valuations, however,
assumed 2010 EBITDA of approximately $10.9 million. Much of
this higher EBTIDA forecast was attributable to, in
Covingtons view based on the Companys forecasts, an
overly optimistic view of the profitability of the quarry
business.
NOL
Carryforwards
:
Mr. Semons
expert also included a $10.3-$13.7 million
tax asset in the Semon Valuations purportedly
attributable to the Companys NOL carryforwards that the
Semon Valuations assumed would benefit Parent following its
acquisition of the Company. After consulting with the
Companys tax advisors, Covington understood, and explained
to the special committee, that the value assigned by the Semon
Valuations to the tax asset represented by the Companys
NOL carryforwards did not take into account the significant
restrictions on use of NOL carryforwards in the event of an
ownership change with respect to the Company. After
consulting with the Companys tax advisors, Covington
understood, and noted for the special committee, that, based on
the ownership of common stock of the Company currently held by
the Swenson Granite Group, the merger would almost certainly
constitute a change of ownership under the Internal
Revenue Code and applicable Treasury Regulations, and thus, the
Companys ability to utilize the NOL carryforwards after
the merger would be substantially limited. Even in the unlikely
instance that Parent was able to utilize the Companys NOL
carryforwards without restriction, according to Covington, the
$10.3-$13.7 million in value allocated to the NOL
carryforwards in the Semon Valuations was actually twice what it
should have been because the Semon Valuations incorrectly
assumed an effective tax rate for the Company of 40%. The
Companys actual effective tax rate, however, was 20%.
65
Long Term Pension Liabilities
:
The
Semon Valuations also appeared to completely ignore, and not
factor into the Companys value, approximately
$13.4 million in existing long term pension and similar
liabilities, thereby further overvaluing the Company by that
amount. In Covingtons view, such liabilities were
obligations of the Company that must be taken into account in
determining the Companys equity value range.
Based on Covingtons analyses, the three key unjustified
assumptions reflected in the Semon Valuations and referenced
above accounted, on average, for a total of approximately
$34 million in value or approximately $4.53 per share. The
assumptions related to the NOL carryforwards and not taking into
account the long-term pension-related liabilities accounted, on
average, for approximately $25 million, or approximately
$3.39 per share. Using what Covington believes are appropriate
assumptions in these three key areas, rather than those
reflected in the Semon Valuations, but otherwise adopting the
assumptions and methodologies in the Semon Valuations, would
yield on average a value range per share of $2.58-$3.02 on the
high end and $1.42-$1.88 on the low end.
Applying this same approach, but correcting only for the
incorrect assumptions in the Semon Valuations relating to NOL
utilization and not accounting for the pension-related
liabilities, would yield on average a value range per share of
$3.72-$4.16 on the high end and $2.56-$3.02 on the
low end.
On July 8, 2010, in the afternoon after the special
committee meeting that morning, Skadden emailed Wolf Popper
acknowledging receipt from Wolf Popper of the Semon Valuations
and other materials and indicating that they were receiving due
consideration by the special committee and its advisors.
After reviewing the Semon Valuations, and discussing and
considering Covingtons presentations and analyses at the
special committee meetings on July 8, 2010 and
August 4, 2010, the members of the special committee
determined that the Semon Valuations were not credible and
accordingly did not rely on them.
Certain
Material U.S. Federal Income Tax Consequences
The following is a discussion of the material federal income tax
consequences for the Company and holders of common stock with
regard to the merger and the receipt of the cash merger price by
holders of shares of common stock of the Company in exchange for
redemption of such stock, and with regard to the contribution by
members of the Swenson Granite Group to Parent of shares of
Company common stock in exchange for additional shares of
membership interest in Parent. This discussion is based upon the
Internal Revenue Code of 1986, as amended (the
Code), U.S. judicial decisions, administrative
pronouncements, and existing and proposed Treasury regulations,
all of which are subject to change, possibly with retroactive
effect, so as to result in U.S. federal income tax
consequences different from those discussed below. The Company
has not requested, and will not request, a ruling from the
U.S. Internal Revenue Service (the IRS) with
respect to any of the U.S. federal income tax consequences
described below. As a result there can be no assurance that the
IRS will not disagree with or challenge any of the conclusions
we have reached and describe herein.
This discussion is not a complete analysis or discussion of all
of the possible tax consequences of such transactions and does
not address all tax considerations that might be relevant to
particular holders in light of their specific circumstances or
to persons that are subject to special tax rules. We do not
address state, local, or foreign tax consequences that may be
applicable to any shareholder of the Company or to the Company
itself. The Companys shareholders including the members of
the Swenson Granite Group should consult their own tax advisors
with respect to the tax consequences of the transactions
described herein with respect to the merger.
In addition, provisions of the Code establishing applicable tax
rates or otherwise material to the discussion below will expire
as of December 31, 2010. The Company does not hereby
undertake to update the following discussion based on any
changes to the Code that become effective after the date hereof;
and a shareholder should consult the holders tax advisor
regarding the tax consequences of the merger in light of any
change to the Code or to applicable tax laws generally.
66
United
States Holders Receiving the Merger Consideration
The following discussion applies only to United States holders
of the Companys Class A and Class B common
stock who hold such shares as capital assets and may not apply
to shares of Rock of Ages common stock acquired pursuant to the
exercise of employee stock options or other compensation
arrangements (and does not, except as specifically set forth
below, apply to the exchange or cancellation of employee stock
options, including the receipt of cash therefor), and this
discussion does not address tax issues relevant to certain
classes of taxpayers who may be subject to special treatment
under the Code, such as banks, other financial institutions,
insurance companies, tax-exempt investors, regulated investment
companies, real estate investment trusts, persons subject to the
alternative minimum tax, persons who hold their Company common
stock as part of a position in a straddle or as part
of a hedging or conversion transaction,
persons who are deemed to sell their Company common stock under
the constructive sale provisions of the Code, traders in
securities that elect to use a
mark-to-market
method of accounting for their securities holdings, persons that
have a functional currency other than the U.S. dollar,
expatriates, S corporations, entities classified as
partnerships for U.S. federal income tax purposes or
shareholders who hold Company common stock as dealers. All such
United States holders should consult their own tax advisors
concerning the U.S. federal income tax consequences of the
merger to their particular situations.
Tax matters are very complex and the tax consequences of the
merger to you will depend on the facts of your particular
situation. You should consult your tax advisor for a full
understanding of the tax consequences of the merger to you,
including the federal, state, local and foreign tax consequences
of the merger
.
If a partnership holds Company common stock, the tax treatment
of a partner will generally depend on the status of the partner
and the tax treatment of the partnership. A partner of a
partnership holding Company common stock should consult its tax
advisors.
For purposes of this discussion, a United States
holder means a holder that is (1) a citizen or
resident of the United States for federal income tax purposes;
(2) a corporation (or other entity treated as an
association taxable as a corporation for U.S. federal
income tax purposes) created or organized in or under the laws
of the United States or any state; (3) an estate, the
income of which is subject to U.S. federal income taxation
regardless of its source; or (4) a trust if (a) a
U.S. court is able to exercise primary supervision over the
administration of the trust and 1 or more U.S. persons have
authority to control all substantial decisions of the trust, or
(b) the trust has a valid election in effect under
applicable Treasury Regulations to be treated as a
U.S. person.
The federal income tax treatment of a shareholder who exercises
statutory dissenters rights is not discussed further in
this section. Any shareholder considering exercising statutory
dissenters rights should consult with his or her own tax
advisor.
The redemption of shares of Company common stock for the merger
price will be a taxable transaction for U.S. federal income
tax purposes. Such redemption generally will be treated as a
sale or exchange of the shares of common stock that are
redeemed, rather than a distribution, if the redemption or
exchange satisfies one of the tests set forth in
Section 302(b) of the Code. The exchange will be treated as
a sale or exchange under Section 302(b) if it
(i) results in a complete termination of a
shareholders interest in the Company, (ii) is
substantially disproportionate with respect to a
shareholder, or (iii) is not essentially equivalent
to a dividend with respect to a shareholder, all within
the meaning of Section 302(b) of the Code. In determining
whether any of these tests has been met, shares of common stock
deemed owned by a shareholder by reason of certain constructive
ownership rules, as well as shares actually owned by the
shareholder, must be taken into account. A redemption of common
stock held by a shareholder generally will qualify for sale or
exchange treatment if the shareholder does not own (actually or
constructively) any shares of any classes of common stock
following the redemption, or if shareholder owns (actually or
constructively) only an insubstantial percentage of common
stock, the redemption has the effect of decreasing such
ownership percentage and the shareholder does not participate in
the Companys control or management. However, the
determination as to whether any of the tests of
Section 302(b) of the Code will be satisfied with respect
to any particular
67
U.S. holder depends upon the facts and circumstances at the
time of the redemption and each Company shareholder is urged to
consult the shareholders tax advisors to determine such
tax treatment.
If a redemption of Company common stock is treated as a sale
or exchange, the redeeming shareholder generally will recognize
gain or loss upon the exchange of common stock in an amount
equal to the difference between (i) the amount realized
upon the sale or exchange, measured by the merger
price per share of common stock, and (ii) the
shareholders adjusted tax basis in the shares of common
stock exchanged. Generally, such gain or loss will be capital
gain or loss and will be long-term capital gain or loss if, on
the date of the merger, a redeeming shareholder has held the
shares of common stock for more than one year. Under the Code,
long-term capital gains of an individual taxpayer are subject to
tax at favorable rates; the deductibility of capital losses is
subject to limitations under the Code.
If a redemption of common stock is treated as a distribution,
the entire amount of the distribution, measured by the
merger price payable for each share of common stock
redeemed, will be taxable as a dividend for U.S. federal
income tax purposes to the extent paid from the Companys
current or accumulated earnings and profits (as determined under
U.S. federal income tax principles). If the amount of a
distribution exceeds the Companys current and accumulated
earnings and profits (or if the Company has no current and
accumulated earnings and profits), such excess first will be
treated as a tax-free return of capital to the extent of a
shareholders tax basis in the common stock being redeemed,
and thereafter will be treated as capital gain. If a redemption
of Company common stock is treated as a distribution, the
redeeming shareholders adjusted tax basis in the redeemed
common stock generally will be transferred to any remaining
shares of common or preferred stock held by the shareholder
immediately after the redemption. If the shareholder does not
own any other shares of common stock immediately after the
redemption, such tax basis may, under certain circumstances, be
transferred to shares of common or preferred stock held by a
person related to the shareholder, or the tax basis may be
entirely lost.
Holders of the Companys common stock should consult their
own tax advisors regarding the treatment of the exchange of
shares of common stock for the merger price pursuant to the
merger.
United States holders of Company common stock may be subject to
backup withholding on cash payments received in exchange for
shares in the merger or received upon the exercise of
dissenters rights. Backup withholding generally will apply
only if the shareholder fails to furnish a correct social
security number or other taxpayer identification number, or
otherwise fails to comply with applicable backup withholding
rules and requirements. Corporations generally are exempt from
backup withholding. Shareholders should complete and sign the
substitute
Form W-9
that will be part of the letter of transmittal to be returned to
the paying agent to provide the information and certification
necessary to avoid backup withholding.
Backup withholding is not an additional tax. Any amounts
withheld from payments to a Company shareholder under the backup
withholding rules will be allowed as a credit against the
shareholders U.S. federal income tax liability and
may entitle the shareholder to a refund, provided the required
information is furnished to the IRS. Each Company shareholder
should consult the holders tax advisor regarding the
application of backup withholding in the holders
particular situation, the availability of an exemption from
backup withholding, and the procedure for obtaining such an
exemption, if available.
Members
of the Swenson Granite Group
Under the terms of the contribution agreements between Parent
and each member of the Swenson Granite Group, each such member
has agreed to contribute to Parent a specified number of shares
of Company common stock in exchange for additional shares of
membership interest in Parent. This exchange will constitute a
non-taxable contribution under Section 721 of the Code. As
a result, each such exchanging person will recognize no gain or
loss on the exchange (except for cash in lieu of fractional
shares of membership interest in Parent) and his or her basis in
Company common stock will be carried over as basis in the
additional shares of membership interest in Parent received in
such exchange.
68
Rock
of Ages
The Company believes that the merger could result in an
ownership change of the Company for purposes of
Section 382 of the Code. As a result, the Companys
use of pre-merger tax net operating losses and certain other tax
attributes, if any, may be limited following the merger. In
addition, the Company should be entitled to an ordinary
compensation deduction for U.S. federal income tax purposes
with respect to cash paid for the surrender of any compensatory
option in an amount equal to the product of (1) the excess
of the merger consideration over the per share exercise price of
an option multiplied by (2) the number of shares of Company
common stock subject to the option. With respect to any such
cash payments to its employees, the Company will be responsible
for withholding federal, state and local income tax as well as
the employees share of social security, Medicare and other
applicable payroll taxes. In addition, the Company will be
responsible for paying the employers share of social
security, Medicare and other applicable payroll taxes. The
merger should not cause any other material U.S. federal
income tax consequences to the Company.
Anticipated
Accounting Treatment of Merger
The merger will be accounted for under the purchase method of
accounting, under which the total consideration paid in the
merger will be allocated to the assets acquired, liabilities
assumed and identifiable intangible assets based on their
estimated fair values as of the date of acquisition, as
determined by management. The excess of the purchase price over
the amounts allocated to assets acquired and liabilities assumed
will be recorded as goodwill.
Dissenters
Rights
Under Chapter 13 of the VBCA, dissenters rights are
available, subject to the procedures described therein, to
record holders of shares of Rock of Ages common stock and
beneficial shareholders who object to the merger and demand
payment of the fair value of their shares in cash in
connection with the consummation of the merger (each a
dissenting shareholder).
For purposes of the VBCA, dissenting shareholders must be
entitled to vote on the merger (under either the VBCA or the
Companys articles of incorporation) before being entitled
to assert their dissenters rights to the fair value of
their shares. Under the VBCA, fair value, with
respect to a dissenters shares of Rock of Ages common
stock, means the value of the shares immediately before the
effectuation of the corporate action to which the dissenter
objects, excluding any appreciation or depreciation in
anticipation of the corporate action unless exclusion would be
inequitable.
Dissenting shareholders are required to follow certain
procedures set forth in the VBCA to receive in cash the fair
value of their shares of Rock of Ages common stock. The
following is a brief summary of such procedures. Chapter 13
of the VBCA is reprinted in its entirety as Annex E hereto.
Shareholders should read Annex E hereto for a
description of all statutory provisions related to
dissenters rights.
Pursuant to Section 13.21 of the VBCA, any shareholder or
beneficial shareholder desiring to assert dissenters
rights must do the following: (1) deliver to Rock of Ages,
before the shareholders vote to approve the merger agreement is
taken, written notice of such dissenting shareholders
intent to demand payment for such shares if the proposed merger
is consummated; and (2) not vote his or her shares in favor
of the merger agreement. Such written notice may be sent to Rock
of Ages Corp., 560 Graniteville Road, Graniteville, VT
05654, Attention: Secretary.
A vote against approval of the
merger agreement, in person or by proxy, will not in and of
itself constitute a notice of intent to demand payment
satisfying the requirements of Chapter 13 of the VBCA.
A dissenting shareholder who fails to satisfy both
clause (1) and clause (2) above is not entitled to
payment for such shares under Chapter 13 of the VBCA.
Because a proxy which does not contain voting instructions will,
unless revoked, be voted for approval of the merger agreement, a
shareholder who votes by proxy and who wishes to exercise his or
her dissenters rights must mark the proxy (1) to vote
against approval of the merger agreement or (2) to abstain
from voting on approval of the merger agreement.
69
A shareholder or beneficial shareholder generally must assert
dissenters rights for all shares he or she beneficially
owns. A record shareholder may assert dissenters rights as
to fewer than all of the shares registered in his or her name
only if the record shareholder dissents with respect to all
shares beneficially owned by any one person and notifies Rock of
Ages of that persons name and address. A beneficial
shareholder may assert dissenters rights as to shares held
on his or her behalf only if (1) such beneficial
shareholder submits to Rock of Ages the record
shareholders written consent to the dissent not later than
the time the beneficial shareholder asserts dissenters
rights and (2) such beneficial shareholder does so with
respect to all shares of which he or she is the beneficial
shareholder or over which he or she has power to direct the vote.
If the merger agreement is approved by the Companys
shareholders, and the majority of the minority approval is also
obtained, then no later than ten days after such approval, Rock
of Ages will send a written dissenters notice to each of
its shareholders who has satisfied the requirements of
Section 13.21 of the VBCA. Upon receipt of such notice,
each dissenting shareholder must demand payment by the date set
in the dissenters notice (which date may not be fewer than
30 nor more than 60 days after the notice is delivered).
The dissenters notice will include a form which may be
used for demanding payment. A dissenting shareholder who does
not demand payment within the designated time period is not
entitled to payment for his or her shares under Chapter 13
of the VBCA. A shareholder with certificates for certificated
shares who does not deposit his or her certificates where
required and by the date set in the dissenters notice
similarly will not be entitled to payment under Chapter 13
of the VBCA. The notice will also inform holders of
uncertificated shares to what extent transfer of such shares
will be restricted after the payment demand is received.
Upon receipt of a payment demand or the effective time of the
merger, whichever is later, Rock of Ages will pay each
dissenting shareholder who has properly perfected his or her
dissenters rights the amount that Rock of Ages estimates
to be the fair value of such shares, plus required statutory
accrued interest, if any, and provide certain required
documentation, as provided in Section 13.25 of the VBCA.
Rock of Ages may elect to withhold payment from shareholders who
were not beneficial owners of their shares before the
announcement of the merger on October 18, 2010. If Rock of
Ages elects to withhold payment to such shareholders, then Rock
of Ages shall offer to pay such shareholders who agree to accept
it in full satisfaction of their demand Rock of Ages
estimate of the fair value of their shares, plus required
statutory accrued interest, if any. A dissenting shareholder who
does not agree with the estimation of the fair value of his or
her shares or the amount of interest due paid or offered by Rock
of Ages must notify Rock of Ages of his or her estimate of fair
value in writing within 30 days after Rock of Ages made or
offered payment for such shares. If the dissenting shareholder
and Rock of Ages cannot agree upon the fair value of the shares
or amount of interest due, Rock of Ages must file a petition in
the superior court for the county in which its principal office
is located requesting a finding and determination of the fair
value of such shares and the accrued interest thereon. If Rock
of Ages fails to institute such a proceeding within 60 days
after the dissenting shareholder notifies Rock of Ages of his or
her disagreement, Rock of Ages must pay each of its dissenters
whose demand remains unsettled the amount demanded by such
shareholder. See Sections 13.30 and 13.31 of the VBCA in
Annex E for the statutory provisions governing such a court
proceeding.
FORWARD-LOOKING
STATEMENTS
Any statement in this proxy statement which is not historical
fact, or which might otherwise be considered an opinion,
projection, future expectation, plan or prospect, including
statements regarding consummation of the proposed merger,
constitute forward-looking statements. In some cases,
forward-looking statements may be identified by their
incorporation of forward-looking terminology such as
anticipate, believe,
continue, estimate, expect,
intend, should or will and
other comparable expressions. Forward-looking statements are
based on assumptions and opinions concerning a variety of known
and unknown risks and uncertainties, and therefore, actual
events may differ materially from what is expressed in such
forward-looking statements. Actual results may differ materially
from those indicated by such forward-looking statements as a
result of various important factors, including the matters
discussed under Managements Discussion and Analysis
of Financial Condition and Results of Operations in Rock
of Ages most recent quarterly or annual report filed with
the SEC, as well as factors relating to the proposed merger,
including diversion of management attention from the operations
of the business as a result of preparations for the proposed
merger and the defense of litigation in
70
connection with the proposed merger; the cost of litigation and
other transaction related expenses that are expected to be
incurred regardless of whether the proposed merger is
consummated; the occurrence of any event, change or other
circumstances that could give rise to the termination of the
merger agreement; the outcome of any legal proceedings that have
been, or may be, instituted against Rock of Ages related to the
merger agreement; the inability to complete the merger due to
the failure to obtain shareholder approval for the merger
(including the majority of the minority approval) or the failure
to satisfy other conditions to completion of the merger; and the
failure of Parent to obtain the necessary financing arrangements
relating to the merger. Shareholders, potential investors and
other readers are urged to consider these factors in evaluating
the forward-looking statements and are cautioned not to place
undue reliance on such forward-looking statements. The
forward-looking statements included herein are made only as of
the date of this proxy statement, and the Company undertakes no
obligation to publicly update such forward-looking statements to
reflect subsequent events or circumstances except to the extent
required by law. Notwithstanding the foregoing, in the event of
any material change in any of the information previously
disclosed, the Company will, where relevant and if required by
applicable law, (i) update such information through a
supplement to this proxy statement and (ii) amend the
Schedule 13E-3
filed in connection with the merger, in each case, to the extent
necessary.
71
THE
SPECIAL MEETING
Date,
Time and Place
The special meeting will be held
on ,
201 at 10:00 a.m., Eastern time, at our
Visitors Center, located adjacent to the Rock of
Ages Craftsman Center and main office at 558 Graniteville
Road, Graniteville, Vermont 05654.
Matters
to be Considered
At the special meeting, shareholders will be asked to:
1. consider and vote upon a proposal to approve the merger
agreement;
2. consider and vote upon a proposal to adjourn the special
meeting if necessary to permit further solicitation of proxies
in the event there are not sufficient votes of shares of
Class A common stock at the time of the special meeting to
satisfy the condition in the merger agreement that the merger
agreement be approved by a majority of the outstanding shares of
our Class A common stock, not including (in the number of
outstanding shares of Class A common stock, or in the
number of shares of Class A common stock voted in favor of
the merger agreement) shares of Class A common stock owned
directly or through a broker or other nominee by members of
Parent; and
3. transact such other business as may properly come before
the special meeting or any adjournments or postponements of the
special meeting.
Record
Date; Voting Rights
The Company has
fixed ,
2010 as the record date for the special meeting. Only holders of
record of shares of Class A or Class B common stock as
of the close of business on the record date are entitled to
notice of, and to vote at, the special meeting and any
adjournment or postponement thereof. As of the close of business
on the record date, there were 4,812,342 shares of
Class A common stock issued and outstanding held by
approximately
holders of record and 2,603,721 shares of Class B
common stock issued and outstanding held by
approximately
holders of record.
At the special meeting, the Class A common stock and
Class B common stock will vote together as a single voting
group. Each share of Class A common stock entitles the
holder thereof to one vote and each share of Class B common
stock entitles the holder thereof to 10 votes. Accordingly, the
holders of outstanding shares of Class A common stock and
Class B common stock will have an aggregate of 30,849,552
votes within that voting group. Approval of the merger agreement
will also require the affirmative vote of a majority of the
outstanding shares of Class A common stock, not including
shares of Class A common stock owned directly or through a
broker or nominee by members of Parent.
Quorum
The presence in person or by proxy of the holders of a majority
of the total votes represented by all the outstanding capital
stock of the Company is necessary to constitute a quorum at the
special meeting.
Any shares of the Companys common stock held in treasury
by the Company or by any of its subsidiaries are not considered
to be outstanding on the record date or otherwise entitled to
vote at the special meeting for purposes of determining a quorum.
Shares represented by proxies reflecting abstentions and
properly executed broker non-votes will be counted as present
and entitled to vote for purposes of determining a quorum. A
broker non-vote arises when shares held by a bank, broker or
other nominee for a beneficial owner are represented at a
meeting of shareholders but are not voted on a particular
proposal because the nominee does not have discretionary voting
power with respect to that proposal and has not received voting
instructions from the beneficial owner. Both the proposal to
approve the merger agreement and the proposal to adjourn the
special meeting if necessary to permit further solicitation of
proxies if there are not sufficient votes of shares of
Class A common stock at the
72
time of the special meeting to constitute the majority of the
minority approval are non-routine matters, and thus
brokers may not vote shares they hold for beneficial owners in
favor of or against either such proposal without specific
instructions from the beneficial owners of such shares.
Required
Vote
The merger cannot be completed unless (1) the merger
agreement is approved by the affirmative vote of a majority of
the votes represented by our outstanding shares of our common
stock, voting together as a single group, or 15,424,777 votes
and (2) the majority of the minority approval is obtained,
which will require the affirmative vote in favor of approval of
the merger of 2,201,821 shares of Class A common
shares that are not owned directly or through a broker or
nominee by members of Parent.
Pursuant to voting agreements entered into by and between Parent
and each member of the Swenson Granite Group, the members of the
Swenson Granite Group have committed to vote in favor of
approval of the merger agreement all Company shares beneficially
owned by them. Parent has advised us that the members of the
Swenson Granite Group beneficially own, in the aggregate,
408,701 shares of Company Class A common stock and
2,449,793 shares of Company Class B common stock,
representing approximately 81% of the votes entitled to be cast
when the Class A and Class B shares vote together as a
single voting group. See VOTING AND CONTRIBUTION
AGREEMENTS Voting Agreements for a description
of the voting agreements. The Companys directors and
executive officers, other than those that are members of the
Swenson Granite Group, own approximately 0.7% of our outstanding
Class A common stock, representing approximately 0.1% of
the votes entitled to be cast when the Class A and
Class B shares vote together as a single voting group, and
have indicated to the Company their intention to vote in favor
of approval of the merger agreement (despite not having entered
into voting agreements with Parent).
In order for shareholders to approve the proposal to adjourn the
special meeting if necessary to permit further solicitation of
proxies in the event there are not sufficient votes of
Class A common stock at the time of the special meeting to
constitute the majority of the minority approval, the votes cast
in favor of the proposal must exceed the votes cast against the
proposal, with the Class A common stock and Class B
common stock voting together as a single voting group. Pursuant
to the voting agreements with the members of the Swenson Granite
Group, Parent holds proxies from such members and has advised
the Company that it will vote for adjournment of the special
meeting to permit such further solicitation of proxies.
In the case of the proposal to approve the merger agreement, a
failure to vote, a vote to abstain or a broker non-vote will
have the same effect as a vote AGAINST the proposal. In the case
of the proposal to adjourn the special meeting if necessary to
permit further solicitation of proxies in the event there are
not sufficient votes of Class A common stock at the time of
the special meeting to constitute the majority of the minority
approval, a failure to vote, a vote to abstain or a broker
non-vote will have no effect on the outcome of the vote.
If the special meeting is adjourned or postponed for any reason,
at any subsequent reconvening of the special meeting, all
proxies will be voted in the same manner as they would have been
voted at the original convening of the meeting (except for any
proxies that have been revoked or withdrawn).
How
Shares are Voted; Proxies; Revocation of Proxies
If you plan to attend the special meeting and wish to vote in
person, we will give you a ballot at the meeting. However, if
your shares are held in the name of your broker, bank or other
nominee, you must obtain from your nominee and bring to the
special meeting a legal proxy authorizing you to
vote your street name shares held as of the record
date. Directions to the special meeting can be found by going to
www.rockofages.com.
You may vote by proxy by completing, signing, dating and
returning your proxy card(s) in the enclosed envelope. If your
shares are held in street name through a broker, you
must provide written instructions to your broker on how to vote
your shares in order for your broker to do so. To ensure that
your broker receives
73
your instructions, you should promptly complete, sign and send
to your broker in the envelope enclosed with this proxy
statement the voting instruction form which is also enclosed.
You may also vote by proxy through the Internet at
www.voteproxy.com (by following the on-screen instructions) or
by telephone by calling toll-free 1-800-PROXIES
(1-800-776-9437
in the United States or 1-718-921-8500 from foreign countries,
from any touch-tone telephone and following the instructions.
You should have your proxy card(s) available when you access the
web page or call. You may also wish to check the voting form
used by the firm that holds your shares to see if it offers
telephone or Internet voting.
Shares represented by a properly executed proxy on the
accompanying proxy card(s) will be voted at the special meeting
and, when instructions have been given by the shareholder, will
be voted in accordance with those instructions. If you submit a
proxy by signing and returning a proxy card(s) without giving
voting instructions, the persons named as proxies on the proxy
card(s) will vote your shares FOR approval of the merger
agreement and FOR the proposal to adjourn the special meeting if
necessary to permit further solicitation of proxies in the event
there are not sufficient votes of Class A common stock at
the time of the special meeting to constitute the majority of
the minority approval.
As of the date of this proxy statement, the Company does not
expect a vote to be taken on any matters at the special meeting
other than the proposal to approve the merger agreement and the
proposal to adjourn the special meeting if necessary to permit
further solicitation of proxies in the event there are not
sufficient votes of shares of Class A common stock at the
time of the special meeting to constitute the majority of the
minority approval. The accompanying proxy card(s) give the
persons named as proxies on the proxy card(s) authority to vote
in their discretion with respect to any other matters that
properly come before the special meeting.
You may change your vote or revoke your proxy at any time before
the proxy is exercised. If you submitted your proxy card(s) by
mail, you must (1) file with the Secretary of the Company
or other designee of the Company, at or before the taking of the
vote at the special meeting, a written notice of revocation
bearing a later date than the proxy you previously submitted or
(2) duly execute a later dated proxy relating to the same
shares and deliver it to the Secretary of the Company or other
designee before the taking of the vote at the special meeting.
If you voted by proxy electronically through the Internet or by
telephone as described above, you may simply vote again at a
later date using the same procedures, in which case the later
submitted proxy will be recorded and the earlier vote revoked.
Attendance at the special meeting will not have the effect of
revoking a proxy unless you give written notice of revocation to
the Secretary of the Company before the proxy is exercised or
you vote by written ballot at the special meeting. If you hold
your shares through a broker, bank or other nominee in
street name, you will need to contact them or follow
the instructions in the voting instruction form used by the firm
that holds your shares to revoke your proxy.
Solicitation
Of Proxies
This proxy statement is being furnished in connection with the
solicitation of proxies by our board of directors. We will bear
the costs of soliciting proxies. These costs include the
preparation, assembly and mailing of the proxy statement, the
notice of the special meeting of shareholders and the enclosed
proxy, as well as the cost of forwarding these materials to the
beneficial owners of our common stock. The Companys
directors, officers and regular employees may, without
compensation other than their regular compensation, solicit
proxies by mail,
e-mail
or
telephone, or in person. The Company has engaged The Proxy
Advisory Group, LLC, to assist in the solicitation of proxies
and provide related advice and informational support, for a
services fee, plus customary disbursements, which are not
expected to exceed $10,000. The Company will also reimburse
brokerage firms, custodians, nominees, fiduciaries and others
for expenses incurred in forwarding proxy material to the
beneficial owners of the Companys common stock.
Delivery
of Proxy Materials to Households
Applicable rules of the SEC permit companies and brokers, banks
or other intermediaries to deliver a single copy of an annual
report and proxy statement to households at which two or more
beneficial owners reside. This method of delivery, which
eliminates duplicate mailings, is known as
householding. Beneficial
74
owners sharing an address who have been previously notified by
their broker, bank or other intermediary and have consented to
householding, either affirmatively or implicitly by not
objecting to householding, will receive only a single copy of
this proxy statement. If you hold your shares in your own name
as a holder of record, householding will not apply to your
shares.
Beneficial owners of the Companys common stock who reside
at a shared address to which a single copy of this proxy
statement has been delivered may obtain a separate copy of this
proxy statement without charge by sending a written request to
Rock of Ages Corporation, 560 Graniteville Road,
Graniteville, Vermont 05654, Attention: Investor Relations, or
by calling the Company at
(800) 875-7353.
The Company will promptly deliver a copy of this proxy statement
upon request.
In order to receive timely delivery of a
separate copy of this proxy statement pursuant to such a
request, the Company should receive your request no later
than .
Not all brokers, banks or other intermediaries offer beneficial
owners the opportunity to participate in householding. If you
want to participate in householding and eliminate duplicate
mailings in the future, you must contact your broker, banker or
other intermediary directly. Alternatively, if you want to
revoke your consent to householding and receive separate annual
reports and proxy statements for each beneficial owner sharing
your address, you must contact your broker, bank or other
intermediary to revoke your consent.
Dissenters
Rights
Shareholders who provide written notice to the Company, before
the vote is taken at the special meeting on approval of the
merger agreement, of their intent to demand payment for their
shares, do not vote in favor of approval of the merger agreement
and also comply with the procedures for asserting
dissenters rights under the applicable statutory
provisions of the VBCA (as summarized elsewhere in this proxy
statement) may demand payment of the fair value of
their shares in cash in connection with the consummation of the
merger. See SPECIAL FACTORS Dissenters
Rights.
Adjournment
If the special meeting is adjourned to a different place, date
or time, the Company need not give notice of the new place, date
or time if the new place, date or time is announced at the
meeting before adjournment, unless a new record date is or must
be set for the adjourned meeting. The board of directors must
fix a new record date if the meeting is adjourned to a date more
than 120 days after the date fixed for the original meeting.
Attending
the Special Meeting
In order to attend the special meeting in person, you must be a
shareholder of record on the record date, hold a valid proxy
from a record holder or be an invited guest of the Company.
Please do not send any certificates representing shares of
our common stock with your proxy card. If the merger is
consummated, the procedure for the surrender of certificates
representing shares of our common stock will be as described in
this proxy statement. See THE MERGER AGREEMENT
Payment for the Shares of Our Common Stock
.
75
PARTIES
INVOLVED IN THE PROPOSED TRANSACTION
Rock of
Ages
560 Graniteville Road
Graniteville, VT 05654
Telephone:
877-225-7626
Rock of Ages was founded in 1885 and is an integrated granite
quarrier and manufacturer whose principal products are granite
blocks, the raw material of the granite industry which it sells
to other manufacturers and transfers to its own manufacturing
facilities, and manufactured granite memorials used primarily in
cemeteries. Rock of Ages owns and operates 9 active quarry
properties and 5 manufacturing and sawing facilities in North
America, principally in Vermont, North Carolina, Pennsylvania
and the Province of Quebec. The Company sells granite blocks to
granite manufacturers around the world and also sells memorials
at wholesale to approximately 112 independent authorized Rock of
Ages retailers in the United States and approximately 106
independent retailers in Canada. These retailers are the primary
distribution channel for the Companys branded and
unbranded memorials in North America.
Additional information about Rock of Ages is contained in its
Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009 and its
Quarterly Report on
Form 10-Q
for the quarterly period ended October 2, 2010, attached as
Annexes F and G hereto, respectively, each of which is
incorporated into and constitutes part of this proxy statement.
See WHERE YOU CAN FIND MORE INFORMATION on
page 109.
Information as of the date of this proxy statement respecting
the Companys executive officers and directors is set forth
below. All of the executive officers and directors identified
below are citizens of the United States, except for Donald M.
Labonte, who is a Canadian citizen. During the last five years,
neither Rock of Ages or the executive officers and directors
identified below have been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or were
party to any judicial or administrative proceeding (except for
matters that were dismissed without sanction or settlement) that
resulted in a judgment, decree or final order enjoining the
person from future violations of, or prohibiting activities
subject to, federal or state securities laws, or a finding of
any violation of federal or state securities laws. All of our
directors and executive officers can be reached at Rock of
Ages Corp., 560 Graniteville Road, Graniteville, VT 05654,
or by phone at
877-225-7626.
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Director
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Term
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Name
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Age
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Positions
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Since
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Expires
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Kurt M. Swenson
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65
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Chairman of the Board
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1984
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2011
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Frederick E. Webster, Jr., Ph.D.*(1)
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73
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Director
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1997
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2011
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Pamela G. Sheiffer*(2)
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64
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Director
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2004
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2012
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Donald M. Labonte
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49
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Director, President and Chief Executive Officer
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2008
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2012
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Richard C. Kimball(3)
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Director and Vice Chairman
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1986
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2013
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James L. Fox*(4)
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Director
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1997
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2013
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*
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Member of the special committee of the Companys board of
directors.
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(1)
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Member of the Audit, Corporate Governance and Nominating and the
Compensation committees.
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(2)
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Member of the Compensation and the Corporate Governance and
Nominating committees.
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(3)
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Member of the Audit and the Corporate Governance and Nominating
committees.
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(4)
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Member of the Audit and Compensation committees.
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Kurt M. Swenson
has been Chairman of the Companys
board of directors since 1984. From 1984 to June 30, 2008
he was President and Chief Executive Officer of Rock of Ages.
Prior to the Companys initial public offering in 1997,
Mr. Swenson had also been the Chief Executive Officer and a
director of Swenson
76
Granite Company, Inc. (the common predecessor of Rock of Ages
and Parent), from 1974 to September of 1997. Mr. Swenson
currently serves as non-executive Chairman of Parents
board of directors. Parent may be deemed an affiliate of Rock of
Ages. He is also a director of the National Building Granite
Quarries Association, an industry association of United
States-based dimension granite quarriers. Mr. Swenson has
over 36 years of experience in the granite industry. He
provides extensive industry knowledge and contacts, and as a
former executive officer, also provides institutional continuity
and Company knowledge to the board of directors.
Frederick E. Webster, Jr., Ph.D.
has been a
director of Rock of Ages since October 1997. He was Professor of
Management at the Amos Tuck School of Business Administration of
Dartmouth College from 1965 until 2002, and is now the Charles
Henry Jones Professor of Management Emeritus. He is also a
management consultant and lecturer, and is the Jon Underwood
Distinguished Research Fellow in Marketing at the Eller College
of Management, University of Arizona. Mr. Webster is
nationally recognized as an expert in marketing. In addition to
his academic accomplishment, he has served as a consultant to a
wide number of companies. Mr. Webster brings to our board
of directors expertise in marketing branded products, managing
channel conflicts, marketing through exclusive territories,
pricing policy and implementing customer-driven initiatives.
Pamela G. Sheiffer
has been a director of Rock of Ages
since June 2004. Since 1997, she has been President of P. Joyce
Associates, Inc., a consulting firm specializing in retail and
apparel sectors, and providing services to the investment
community. Prior to that, Ms. Sheiffer held various senior
management positions in the retail and apparel industry
including Senior Vice President of May Department Stores. She
was a director of New York & Company (NYSE: NWY), a
specialty retailer of fashion oriented, moderately priced
womens apparel, from August 2006 to August 2010, and she
has been a Trustee of the American Management Association since
June 2007. She is currently Vice Chairman of Learning Lenders,
New York Citys largest educational nonprofit with over
12,000 volunteers in New York City schools. Ms. Sheiffer
has extensive executive management experience with companies
engaged in the design and retail sales of products (included
branded products) marketed primarily to women. Because the large
majority of granite memorials sold in North America are
purchased by women, Ms. Sheiffer brings a unique and
helpful perspective to the sales and marketing programs for our
branded memorials.
Donald Labonte
has been a director of Rock of Ages since
2008. He has been the President and Chief Executive Officer of
Rock of Ages since July 2008 and was Chief Operating Officer
from February 2008 to June 2008. He was the Companys
President and Chief Operating Officer/Quarry Division from
December 2007 to February 2008, and the Companys President
and Chief Operating Officer/Manufacturing Division from August
2002 to February 2008. Mr. Labonte has been President of
Rock of Ages Canada, Inc., a wholly owned subsidiary of the
Company, since 1999. From January 2002 to July 2002, he was Vice
President of the Manufacturing Division of the Company. From
1998 to 1999, he was Vice President/General Manager of Rock of
Ages Canada, Inc. From 1993 to 1998, Mr. Labonte was
Director of Operations of Rock of Ages Canada, Inc. From
1980 to 1993, Mr. Labonte held various positions in the
manufacturing plant at Rock of Ages Canada, Inc.
Mr. Labonte is one of the most experienced, knowledgeable
and effective executives in the granite industry, and he
provides unique and necessary perspective on the Companys
current operations and strategic focus, as well as extensive
industry knowledge.
Richard C. Kimball
has been a director of Rock of Ages
since 1986, and Vice Chairman since 1993. From 1993 to January
2001, he was the Chief Operating Officer Memorials
Division of Rock of Ages and from January 2001 to December 2004,
he served as the Companys Chief Strategic and Marketing
Officer. Prior to joining the Company, Mr. Kimball served
as a director, principal and President of The Bigelow Company,
Inc., a strategic planning and investment banking firm from 1972
until 1993. Mr. Kimball retired as an employee of the
Company on December 31, 2004 and served as a consultant to
the Company during 2005 and 2006. He was also a director of
Parent from 1985 to 1997 and served as the Chief Operating
Officer of Parent from 1993 to 1997. He returned to The Bigelow
Company, Inc. in 2006, where he presently serves as a Senior
Advisor. Mr. Kimball has extensive experience in investment
banking and strategic consulting for many different businesses
and provides the Companys board of directors with valuable
expertise and insight in
77
evaluating the Companys strategic business development. He
is also a former executive officer of the Company, and as such,
provides institutional and industry knowledge.
James L. Fox
has been a director of Rock of Ages since
October 1997. Since January 2007, he has been President and
Chief Executive Officer, and from October 2005 to December 2006,
he served as Executive Vice President and Chief Operating
Officer of FundQuest, Inc., a global provider of turnkey, open
architecture wealth management programs and services for
financial institutions and advisors. From September 2003 to
October 2005, he was Executive Vice President and Chief
Financial Officer of The BISYS Group, Inc. He was President of
Fund Services Division of The BISYS Group, Inc. from April
2003 to September 2003. From August 2001 to April 2003, he was
President and Chief Executive Officer of govOne Solutions, L.P.,
an electronic government payment service. From June 2000 to
August 2001, he was Vice President-Corporate Development and
Chief Financial Officer of Gomez, Inc., a research and
consulting firm specializing in Internet quality measurement.
Prior to joining Gomez, Mr. Fox had been Vice Chairman of
PFPC Inc., a division of the PNC Financial Services Group, Inc.
from December 1999 to June 2000. Before joining PFPC, Inc.,
Mr. Fox had an eleven year career with the Investor
Services Group of First Data Corporation, a provider of
processing and mutual fund and retirement services for mutual
fund complexes, banks, insurance companies and advisory firms,
including serving as President and Chief Executive Officer
(1999) and Chief Operating Officer
(1997-1999).
Mr. Fox has also been a director of Pegasus Solutions,
Inc., a global provider of third-party marketing and reservation
services to the travel industry, since June 2006. Mr. Fox
brings extensive executive management experience in both public
and private companies, including knowledge and experience in
managing financial and accounting matters and working with
independent outside accounting firms in his capacity as Chief
Financial Officer and Chief Executive Officer in a number of
large companies.
In addition to Mr. Labonte, for whom information is
provided above, the following persons are executive officers of
the Company:
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Officer
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Name
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Age
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Positions
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Since
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Paul H. Hutchins
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54
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Vice President/Administration
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2004
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Laura A. Plude
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Vice President and Chief Financial Officer
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2007
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Paul H. Hutchins
has been Vice President/Administration
of the Company since October 2004. From September 1993 to
October 2004, he was Manager of Administration.
Mr. Hutchins has held numerous other positions during his
28 year career at Rock of Ages, including Director of
Information Services (June 1989 September 1993),
Production Manager (Rock of Ages Canada, Inc., October
1987 June 1989), Purchasing and Transportation
Manager (June 1984 October 1987) and Staff
Engineer (December 1981 June 1984).
Laura A. Plude
has been Vice President and CFO of the
Company since August 2007. She served briefly as Vice
President/Finance from July 2007 to August 2007. Ms. Plude
was Director of Finance of the Company from August 2004 to July
2007. She was a staff accountant at the Company from August 1999
to August 2004. Prior to joining the Company, Ms. Plude was
a self-employed CPA.
Parent
369 North State Street
Concord, NH 03301
Telephone:
603-225-2783
Parent is a family owned business that has been quarrying and
manufacturing granite in New England since 1883. Presently
headed by the fourth generation of the Swenson family, Parent is
organized as a Delaware limited liability company. Parent
operates two active quarry properties and 6 manufacturing and
saw plants and participates in the granite highway curbing and
landscape segments of the market at both wholesale and retail.
Parent holds all the issued and outstanding limited liability
company interests of Merger Sub and will hold, prior to the
effective time of the merger, certain shares of the
Companys common stock contributed to Parent pursuant to
the terms of contribution agreements entered into by and between
Parent and each
78
member of the Swenson Granite Group. No merger consideration
will be paid for the Company shares that Parent receives from
the members of the Swenson Granite Group in exchange for such
membership interests of Parent pursuant to the contribution
agreements, however, under the contribution agreements Parent
will make cash payments in respect of fractional shares of
membership interest in Parent arising from the exchange ratio
under the contribution agreements. As a result of the merger,
Parent will acquire 100% ownership of the Company.
Set forth below is a list of the executive officers and
directors of Parent. All of Parents executive officers and
directors are citizens of the United States and, unless
otherwise listed below, can be reached at Swenson Granite
Company LLC, 369 North State Street, Concord, NH 03301 or by
phone at
603-225-2783.
Kurt M. Swenson
is the non-executive Chairman of
Parents board of directors. Information for
Mr. Swenson can be found above, under PARTIES
INVOLVED IN THE PROPOSED TRANSACTION Rock of
Ages.
Kevin C. Swenson
has been a Vice President and a director
of Parent since 1975 with various responsibilities for
Parents granite curbing operations. He has also served as
Treasurer and Secretary of Parent since 1997. He has never
served as a director, officer or employee of Rock of Ages. He is
the brother of Kurt Swenson.
Robert L. Pope
is the President and Chief Executive
Officer of Parent and has held those positions since 1997. He
has been a director of Parent since 1996. From 1996 to 1997, he
was an officer and a director of Rock of Ages. Mr. Pope is
married to Nancy Pope (see PARTIES INVOLVED IN THE
PROPOSED TRANSACTION Swenson Granite Group,
below).
Jake Swenson
is a director of Parent. He is also the
Sustainability Manager of Staples, Inc., located at 500 Staples
Drive, Framingham, Massachusetts 01702 (telephone:
508-253-9807).
He has been employed at Staples, Inc. since 2005. Jake Swenson
is the son of Kurt Swenson and has served as a director of
Parent since 2006.
Scott Herrick
is a Vice President and a director of
Parent. Mr. Herrick became employed by Parent in February
of 1992, became a Vice President of Parent in 1999 and was named
a director of Parent in 2001.
Neither Parent nor its executive officers and directors (as
identified above) have been, during the past five years:
(1) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (2) were party to
any judicial or administrative proceeding (except for matters
that were dismissed without sanction or settlement) that
resulted in a judgment, decree or final order enjoining the
person from future violations of, or prohibiting activities
subject to, federal or state securities laws, or a finding of
any violation of federal or state securities laws.
Merger
Sub
c/o Swenson
Granite Company LLC
369 North State Street
Concord, NH 03301
Telephone:
603-225-2783
Merger Sub is a recently-formed Vermont limited liability
company established for the sole purpose of effecting the merger
and the other transactions contemplated by the merger agreement.
Merger Sub is wholly owned by Parent.
The managers of Merger Sub are Kurt M. Swenson, Kevin C. Swenson
and Robert L. Pope. Information for Kurt Swenson can be
found above, under PARTIES INVOLVED IN THE PROPOSED
TRANSACTION Rock of Ages. Information for
Kevin Swenson and Mr. Pope can be found above under
PARTIES INVOLVED IN THE PROPOSED TRANSACTION
Parent.
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Swenson
Granite Group
c/o Kurt M. Swenson
369 North State Street
Concord, NH 03301
Telephone:
603-225-2783
Information regarding each of the members of the Swenson Granite
Group is set forth below. The members of the Swenson Granite
Group have agreed, under the terms of voting agreements with
Parent (the form of which is attached to this proxy statement as
Annex B), to vote all of the Company shares they
beneficially own in favor of approval of merger agreement.
Parent has advised us that the members of the Swenson Granite
Group beneficially own, in the aggregate, 408,701 shares of
Class A common stock and 2,449,793 shares of
Class B common stock, representing approximately 81% of the
total voting power of all outstanding shares of Company common
stock.
The members of the Swenson Granite Group have also agreed to,
prior to the effective time of the merger, contribute some or
all of their shares of our common stock in exchange for
additional shares of membership interest in Parent, pursuant to
the terms of contribution agreements entered into by and between
Parent and each such member of the Swenson Granite Group (the
form of which is attached to this proxy statement as
Annex C). Parent has advised us that the members of the
Swenson Granite Group will contribute to Parent prior to the
effective time of the merger a total of
258,326 shares of Class A common stock and
2,449,793 shares of Class B common stock.
The Swenson Granite Group is comprised of the following members:
The Kurt M. Swenson Revocable Trust of 2000
is a grantor
revocable trust established under the laws of New Hampshire for
which Kurt Swenson serves as the sole trustee. The trust does
not engage in a business.
The Kevin C. Swenson Revocable Trust of 1994 U/D/T 3-10-94
is a grantor revocable trust established under the laws of
New Hampshire for which Kevin Swenson serves as the sole
trustee. The trust does not engage in a business.
The Lois S. Moore Revocable Trust
is a grantor revocable
trust established under the laws of New Hampshire. Lois S.
(Swenson) Moore is the trustee of this trust. Ms. Moore has
been retired for many years and has never been active in any
capacity with Parent or with the Company. She is also the aunt
of Kurt, Kevin and Karen Swenson as well as a relative of Guy A.
Swenson, III. The trust does not engage in a business.
Robert L. Pope
is the President and Chief Executive
Officer and a director of Parent. Information for Mr. Pope
can be found above under PARTIES INVOLVED IN THE PROPOSED
TRANSACTION Parent.
Karen Swenson
is a retired school teacher and has never
been active in any capacity with Parent or Rock of Ages. She is
the sister of Kurt and Kevin Swenson.
Peter B. Moore
has been employed as an electrical
engineer by ALMACO, located at 99 M Avenue, Nevada, Iowa 50201
(telephone:
(515) 382-3506)
since 2004 and has been employed by ALMACO since 1972. He has
never been active in any capacity with Parent or with Rock of
Ages. He is the son of Lois S. Moore, a first cousin to Kurt,
Kevin and Karen Swenson and a relative of Guy A. Swenson, III.
Charles M. Waite
is the managing partner of Chowning
Partners, a financial consulting firm located in Gilford, NH
03249 (telephone:
(603) 293-2444).
He was a director of Rock of Ages from 1986
until his retirement as a director in August of 2010.
He also served as a director of Parent from 1985 to 1997.
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Guy A. Swenson, III
is a consulting hydro-geologist
employed as the Senior Technical Director of
OBrien & Gere, 333 West Washington Street,
Syracuse, NY (telephone:
(315) 956-6100).
Mr. Swenson has been working for OBrien &
Gere for over five years. He has never been active in any
capacity with Parent or with Rock of Ages. He is a second cousin
to Kurt, Kevin and Karen Swenson.
Peter A. Friberg
is a Vice President of Rock of Ages,
located at 560 Graniteville Road, Graniteville, VT 05654
(telephone:
(802) 476-3121).
Mr. Friberg has been a Vice President of Rock of Ages since
1995, with principal responsibilities for the sales of granite
memorials at wholesale. Mr. Friberg was a director of both
Parent and Rock of Ages from 1996 to 1997. Mr. Friberg is
the brother of Nancy Pope (see below) and the brother in law of
Robert Pope (see above).
Nancy F. Pope
is a homemaker, and the wife of Robert Pope
and sister of Peter Friberg. She is active with a number of
community organizations in the Barre, Vermont area. She has
never been active in any capacity with Parent or the Company.
She has no business address or business telephone.
The Christina W. Kimball Revocable Trust of 2-21-2001
is
a grantor revocable trust established under the laws of New
Hampshire for which Ms. Christina Kimball serves as the
sole trustee. The trust does not engage in a business.
Christina W. Kimball
is a homemaker and the wife of
Richard Kimball. She is active with a number of organizations in
central New Hampshire. She has never been active in any capacity
with Parent or the Company. She has no business address or
business telephone.
Richard C. Kimball
is the Vice Chairman and a director of
Rock of Ages. Information for Mr. Kimball can be found
above under PARTIES INVOLVED IN THE PROPOSED
TRANSACTION Rock of Ages.
Jon M. Gregory
is currently retired. Prior to
his retirement he was an executive officer of Rock of Ages,
having served as the President of the Companys quarry
division until December 2005. He also served as a director
of the Company from 1998 to 2003. Mr. Gregory first joined
Rock of Ages in 1975. He also served as a director of Parent
from 1994 to 1997.
The members of the Swenson Granite Group that are natural
persons are citizens of and reside in the United States and each
member of the Swenson Granite Group that is a trust is a
revocable trust with the grantor as the beneficiary during his
or her lifetime. During the last five years, none of the members
of the Swenson Granite Group or their trustees have been
convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) or were party to any judicial or
administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a
judgment, decree or final order enjoining the person from future
violations of, or prohibiting activities subject to, federal or
state securities laws, or a finding of any violation of federal
or state securities laws.
Certain
Transactions Between the Parties
Except as described in the paragraph immediately below, during
the past two years, the aggregate value of transactions between
Parent, any officer or director of Parent or any member of the
Swenson Granite Group on the one hand, and the Company and any
of its subsidiaries on the other, was not more than one percent
of the consolidated revenues of the Company and its subsidiaries
for the fiscal year in which the transaction occurred or for the
period from January 1, 2010 through the date of this proxy
statement if the transaction occurred in 2010. See Item 13
of the Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009 (attached as
Annex F) for a description of transactions between the
Company and Parent during 2009.
The following members of the Swenson Granite Group, who are all
retired former executive officers of the Company, are
beneficiaries under certain plans and arrangements with the
Company: Kurt M. Swenson, director and the non-executive
Chairman of the Company, and director and the non-executive
Chairman of the Parent, received payments under the
Companys defined benefit pension plan, salary continuation
agreement,
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and deferred salary plan totaling $61,295 in 2008, $381,941 in
2009, and $265,141 for the nine months ended October 2,
2010; Richard C. Kimball, director and the Vice Chairman of the
Company, received payments under the Companys defined
benefit pension plan, salary continuation agreement, and
deferred salary plan totaling $115,986 in 2008, $115,986 in
2009, and $86,759 for the nine months ended October 2,
2010; Jon M. Gregory, President and Chief Operating Officer of
the Companys Quarry Division until 2005, received payments
under the Companys defined benefit pension plan, salary
continuation agreement, and Deferred Salary Plan totaling
$189,793 in 2008, $189,793 in 2009, and $142,344 for the nine
months ended October 2, 2010. Peter Friberg is a member of
the Swenson Granite Group and is Vice President-Wholesale Sales
of the Company, and in such capacity as an officer and employee
of the Company receives salary and benefits from the Company.
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THE
MERGER AGREEMENT
This section of the proxy statement describes the material
provisions of the merger agreement but does not purport to
describe all of the terms of the merger agreement. The following
summary is qualified in its entirety by reference to the
complete text of the merger agreement, which is attached as
Annex A to this proxy statement and is incorporated into
this proxy statement by reference. We urge you to read the full
text of the merger agreement because it is the legal document
that governs the merger.
Structure
of the Merger
Upon the terms and subject to the conditions of the merger
agreement, and in accordance with Vermont law, at the effective
time of the merger, Merger Sub will merge with and into the
Company and the separate limited liability company existence of
Merger Sub will cease. The Company will be the surviving
corporation in the merger as a wholly owned subsidiary of
Parent, and will continue to be a Vermont corporation after the
merger.
The articles of incorporation and bylaws of the Company, in each
case as in effect immediately prior to the effective time of the
merger, will be the articles of incorporation and bylaws of the
Company, as the surviving corporation. The managers of Merger
Sub and the officers of the Company immediately prior to the
effective time of the merger will, from and after the effective
time of the merger, be the initial directors and officers,
respectively, of the Company, as the surviving corporation,
until their successors are duly elected or appointed and
qualified or until their earlier death, resignation or removal.
When the
Merger Becomes Effective
The Company and Merger Sub will execute and file articles of
merger with the Secretary of State of the State of Vermont two
business days after the satisfaction or waiver of all of the
conditions to the merger (other than the conditions that can
only be satisfied at the closing of the merger) or at such other
time as Parent, Merger Sub and the Company may agree in writing.
The merger will become effective at the time the articles of
merger are duly filed with the Secretary of State of the State
of Vermont or such later date and time as is agreed upon by
Parent, Merger Sub and the Company and specified in the articles
of merger.
Proxy
Statement; Special Meeting
Under the terms of the merger agreement, the Company is required
to, as promptly as reasonably practicable and in accordance with
applicable law, its articles of incorporation and bylaws, duly
call, give notice of, convene and hold a special meeting of its
shareholders (including any adjournment or postponement of such
special meeting) for the purpose of seeking their approval of
the merger agreement. The Company may postpone or adjourn the
special meeting solely to the extent that the special committee
of the board of directors, a majority of (but not less than two)
qualified directors or the Companys board of directors
(based upon the recommendation of the special committee or such
qualified directors) determines in good faith, after
consultation with outside counsel, that the Company has received
a Superior Proposal (as such term is defined under the terms of
the merger agreement and below, under the heading THE
MERGER AGREEMENT Acquisition Proposals). The
Company is required to use its reasonable best efforts to
solicit proxies in favor of approval of the merger agreement.
Under the terms of the merger agreement, the Company is required
to, as promptly as reasonably practicable and in accordance with
applicable law, its articles of incorporation and bylaws,
prepare and file with the SEC this proxy statement. Parent and
Merger sub have agreed to, as promptly as reasonably
practicable, provide us with any information that may be
required in order for us to effectuate the preparation and
filing of this proxy statement. We have agreed to provide Parent
(and its counsel) with a reasonable opportunity to review and
comment on this proxy statement, and any amendment or
supplements to this proxy statement prior to filing with the
SEC. Subject to the terms of the merger agreement, we have
agreed that this proxy statement will include our board of
directors recommendation that the shareholders of the
Company approve the merger agreement.
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Under the terms of the merger agreement, Parent, Merger Sub, the
Company and any required affiliates of Parent, Merger Sub or the
Company are required to jointly prepare and, concurrently with
our filing with the SEC of a preliminary form of this proxy
statement, file with the SEC the
Schedule 13E-3
relating to the transactions contemplated by the merger
agreement. Parent, Merger Sub, the Company and any required
affiliates of Parent, Merger Sub or the Company are required to,
as promptly as reasonably practicable, furnish one another with
any information that may be required in order for us to
effectuate the preparation and filing of the
Schedule 13E-3.
At our special meeting of shareholders, Parent and Merger Sub
are each required to vote, or cause to be voted, all of the
shares of our common stock as to which they are entitled to vote
or direct the vote of in favor of approval of the merger
agreement. Additionally, Parent has entered into voting
agreements with each member of the Swenson Granite Group, which
agreements require the members of the Swenson Granite Group to
vote, or cause to be voted, all of the Company shares they are
entitled to vote or instruct the vote in favor of approval of
the merger agreement. See VOTING AND CONTRIBUTION
AGREEMENTS Voting Agreements.
The
Merger Consideration and the Effect of the Merger on the Capital
Stock of the Company and Merger Sub
At the effective time of the merger:
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all shares of Company common stock that are held (1) in the
treasury of the Company, or (2) by Parent, Merger Sub or
any other direct or indirect wholly owned subsidiary of Parent
will be cancelled and retired without any consideration payable
therefor;
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each other share of Company common stock issued and outstanding
immediately before the effective time of the merger (other than
any shares as to which a dissenting shareholder has properly
asserted dissenters rights under the VBCA) will be
converted into the right to receive the merger consideration;
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all shares of the Companys stock, the holders of which
have properly asserted dissenters rights under the VBCA,
will not be converted into the right to receive the merger
consideration and the holders of such shares will be entitled to
receive payment of the fair value of such shares, in an amount
and in the manner as determined pursuant to the VBCA; and
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the limited liability company interests of Merger Sub issued and
outstanding immediately prior to the merger will be converted
into and become one validly issued, fully paid and
non-assessable share of Company Class B common stock;
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After the merger is effective, each holder of shares of our
common stock will cease to have any rights with respect to the
shares other than the right to receive the merger consideration
or to receive payment of the appraised value of the shares if
the holder has properly asserted dissenters rights under
Chapter 13 of the VBCA.
If at any time prior to the effective time of the merger, the
number of outstanding shares of the Company is changed as a
result of a reclassification, recapitalization, stock split
(including reverse stock split), or combination, exchange or
readjustment of shares, or any stock dividend or stock
distribution with a record date prior to the effective time of
the merger, the amount of the merger consideration will be
equitably adjusted to reflect such change.
Payment
for the Shares of Our Common Stock
Prior to the effective time of the merger, Parent will designate
a bank or trust company who is reasonably satisfactory to us to
act as the paying agent in connection with the merger. At or
prior to the closing of the merger agreement, Parent will
deliver (or cause to be delivered), in trust, to the paying
agent, for the benefit of the holders of our common stock at the
effective time of the merger, sufficient funds for timely
payment of the aggregate merger consideration that the
Companys shareholders are entitled to receive under the
merger agreement. At and after the effective time of the merger,
the stock transfer books of the Company will be
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closed, and there will be no further registration of transfers
of the shares of our common stock that were outstanding
immediately prior to the effective time of the merger.
Promptly after the effective time of the merger (and in any
event within five business days after the effective time),
Parent will cause the paying agent to mail to each record holder
of our common stock whose shares were converted into the right
to receive merger consideration a letter of transmittal and
instructions for use in effecting the surrender of stock
certificates or transfer of book entry shares in exchange for
payment of the merger consideration. The letter of transmittal
will also include instructions for shareholders who have lost
their stock certificates. The paying agent will send you your
merger consideration after you have (1) surrendered your
stock certificates or book-entry shares for cancellation to the
paying agent and (2) provided to the paying agent your
signed letter of transmittal and any other items specified by
the letter of transmittal. Interest will not be paid or accrue
in respect of the merger consideration.
YOU SHOULD NOT SEND
IN YOUR STOCK CERTIFICATES UNTIL YOU RECEIVE A LETTER OF
TRANSMITTAL AND INSTRUCTIONS. DO NOT SEND CERTIFICATES WITH THE
ENCLOSED PROXY CARD, AND DO NOT FORWARD YOUR STOCK CERTIFICATES
TO THE PAYING AGENT WITHOUT A PROPERLY COMPLETED LETTER OF
TRANSMITTAL.
If payment of the merger consideration is to be paid to a person
other than the person in whose name the book entry shares
transferred or the stock certificates surrendered are
registered, it will be a condition of payment that the person
requesting such payment shall pay to the paying agent any
transfer or other taxes required by reason of payment of the
merger consideration to a person other than the registered
holder of the book entry shares transferred or the
certificate(s) surrendered, or that such person establish to the
reasonable satisfaction of the paying agent that such tax has
been paid or is not applicable.
Any portion of the aggregate merger consideration held by the
paying agent that remains unclaimed by the former shareholders
of the Company one year after the effective time of the merger
will be delivered, upon demand, to the Company, as the surviving
corporation. Except as otherwise provided by law, any former
shareholders of the Company who have not properly surrendered
their stock certificates or transferred their book entry shares
will thereafter look only to the Company, as the surviving
corporation, for payment of their claim for the merger
consideration under the merger agreement.
Dissenters
Rights
Any shares of the Companys common stock that are issued
and outstanding immediately prior to the effective time of the
merger and held by a shareholder who, in accordance with
Section 13.21 of the VBCA, has provided written notice to
the Company, before the vote is taken at the special meeting on
approval of the merger agreement, of such shareholders
intent to demand payment for his or her shares, has not voted in
favor of the merger or consented thereto in writing and has also
fulfilled other procedural requirements to properly assert his
or her dissenters rights under Chapter 13 of the
VBCA, shall not be converted into the right to receive the
merger consideration. Instead, such shares will be entitled only
to such rights with respect to such shares as may be granted to
such shareholder under the VBCA. From and after the effective
time of the merger, such shares will not be entitled to vote for
any purpose or be entitled to the payment of dividends or other
distributions (except dividends or other distributions payable
to shareholders of record prior to the effective time of the
merger).
If, after the effective time of the merger, any such holder has
effectively withdrawn or lost his or her dissenters
rights, each share of such holders Company common stock
will thereupon be deemed to have been converted into and to have
become, as of the effective time of the merger, the right to
receive, without interest, the applicable merger consideration.
For more information regarding dissenters and appraisal
rights, see SPECIAL FACTORS Dissenters
Rights and Annex E.
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Treatment
of Stock Options
The merger agreement provides that prior to the effective time
of the merger, the Company will cause each outstanding option to
purchase shares of the Companys Class A common stock
under any Company equity plan to become fully vested and
exercisable. At the effective time, each such option outstanding
as of immediately prior to the effective time of the merger will
be cancelled and the holder of such option will be entitled to
receive with respect to each such option only a cash payment
from the Company, as the surviving company, equal to the product
of (1) the excess, if any, of the merger consideration over
the exercise price per share of such option multiplied by
(2) the number of shares of the Companys Class A
common stock issuable upon exercise of such option. Options to
purchase shares of the Companys Class A common stock
which have an exercise price per share equal to or greater than
the merger consideration will be cancelled as of the effective
time of the merger without the payment of any consideration.
Parent and the Company, as the surviving corporation, will
cause, and will make appropriate arrangements as may be
necessary to allow, the lump sum cash payments required to be
paid with respect to the outstanding options to be paid within
five business days of the effective time of the merger. In
paying any such cash amount in respect of a Company stock
option, the surviving corporation will be entitled to deduct and
withhold such amounts as are required to be deducted and
withheld under applicable tax law.
Representations
and Warranties
The merger agreement contains representations and warranties
made by us to Parent and Merger Sub and representations and
warranties made by Parent and Merger Sub to us. These
representations and warranties by either us, on the one hand, or
Parent and Merger Sub, on the other hand, were made for purposes
of the merger agreement, and (1) were not intended to be
treated as categorical statements of fact, but rather as a way
of allocating the risk to the party or parties making the
representation and warranty if it proves to be inaccurate;
(2) may have been qualified in the merger agreement by
disclosures that were made to the other party or parties in
connection with the negotiation of the merger agreement;
(3) may apply contract standards of materiality
that are different from materiality under the
applicable securities laws; and (4) were made only as of
the date of the merger agreement or such other date or dates as
may be specified in the merger agreement. Accordingly, these
representations and warranties may not describe the actual state
of affairs as of the date they were made or at any other time.
In the merger agreement, each of the Company, Parent and Merger
Sub made representations and warranties relating to, among other
things:
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corporate or limited liability company existence and power;
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authority to enter into and perform its obligations under, and
enforceability of, the merger agreement;
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required regulatory filings, consents and approvals of
governmental entities;
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the absence of conflicts with or defaults under, and consents or
approvals required under, organization documents, applicable
laws and contracts; and
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the pending existence of litigation or orders of governmental
entities.
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In the merger agreement, we made representations and warranties
relating to, among other things:
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organizational documents;
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ownership of our subsidiaries;
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capital structure;
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governmental permits;
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compliance with applicable laws, including environmental and
labor laws;
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reports and financial statements filed with the SEC as well as
our October 2, 2010 financial statements;
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accounting practices, books and records;
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the absence of any material defaults in the performance,
observance or fulfillment of any material contract;
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the absence of undisclosed liabilities not incurred in the
ordinary course of business since July 3, 2010 or incurred
in connection with the merger or otherwise as contemplated by
the merger agreement;
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employee benefit plans;
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trademarks;
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environmental matters;
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labor matters;
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real property;
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taxes;
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no payment of brokers fees except to Covington;
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the shareholder vote that is required to consummate the merger
pursuant to the VBCA;
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the recommendation of the special committee and the board of
directors and the opinion of the special committees
financial advisor;
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the accuracy of the information in this proxy statement and in
the
Schedule 13E-3
(other than information provided in writing by Parent, Merger
Sub or any affiliate of Parent or Merger Sub); and
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the absence of a Material Adverse Effect (as defined below) from
July 3, 2010 through October 18, 2010.
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In the merger agreement, Parent and Merger Sub made
representations and warranties relating to, among other things:
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the ownership and operations of Merger Sub;
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the validity of Parents agreements with members of the
Swenson Granite Group pursuant to which the members of the
Swenson Granite Group have agreed (1) to vote or cause to
all shares of our common stock held by the members in favor of
approval of the merger agreement and (2) to contribute some
or all of their shares of our common stock to Parent prior to
the effective time of the merger;
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the accuracy of the information that Parent or Merger Sub
furnishes in writing specifically for use in this proxy
statement and in the
Schedule 13E-3;
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the financing necessary to consummate the merger;
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the absence of knowledge of any of our representations or
warranties made in the merger agreement being untrue;
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the solvency of Parent and the Company, as the surviving
corporation, and their respective subsidiaries, taken as a
whole, after the effective time of the merger; and
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no payment of brokers fees.
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None of the representations and warranties in the merger
agreement will survive the effective time of the merger or the
termination of the merger agreement.
Many of our representations and warranties are qualified by a
Material Adverse Effect standard. For purposes of
the merger agreement, Material Adverse Effect is
defined to mean any event, change, effect, development, state of
facts, condition, circumstance or occurrence that (alone or in
combination) is materially adverse to the business, assets,
liabilities, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a
whole; but excluding any event, change, effect, development,
state of
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facts, condition, circumstance or occurrence (alone or in
combination) resulting from, arising out of or connection with
any of the following:
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changes in the financial markets or economic or political
condition generally in the United States or the global economic
or political condition, to the extent the Company and its
subsidiaries, taken as a whole, are not adversely affected in a
disproportionate manner relative to other participants in the
industry in which they operate;
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general national, regional or international economic, financial,
political or business conditions affecting generally the
industries and markets in which the Company and its subsidiaries
operate, to the extent the Company and its subsidiaries, taken
as a whole, are not adversely affected in a disproportionate
manner relative to other participants in the industry in which
they operate;
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the execution, delivery or performance of the merger agreement,
the announcement of the merger agreement, the identity of Parent
or Merger Sub as the acquirers or the pendency or consummation
of the merger or the other transactions contemplated by the
merger agreement (including any cancellation of or delays in
work for customers, any reductions in sales, any disruption in
supplier, contractor, subcontractor or similar relationships or
any loss of employees or consultants resulting primarily from
the execution, delivery or performance of the merger agreement,
the announcement of the merger agreement, the identity of Parent
or Merger Sub as the acquirers or the pendency or consummation
of the merger or the other transactions contemplated by the
merger agreement);
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natural disasters, acts of war, terrorism or sabotage, military
actions or the escalation of such natural disasters, acts of
war, terrorism or sabotage or military actions;
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changes in generally accepted accounting principles or other
applicable accounting rules or applicable law (including the
accounting rules and regulations of the SEC), or changes in the
interpretation of those principles, rules or laws;
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any action required by applicable law, contemplated by the
merger agreement or taken at the request of Parent or Merger Sub;
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any litigation brought or threatened by any shareholder(s) of
either Parent or the Company (whether on behalf of the Company,
Parent or otherwise) alleging a breach of fiduciary duty
relating to the merger agreement or the merger or the other
transactions contemplated by the merger agreement or violations
of securities laws in connection with this proxy statement, the
Schedule 13E-3
or otherwise in connection with the merger agreement (other than
any order of a governmental entity in litigation of the type
described in this sentence which awards damages against the
Company or for which the Company has an indemnification
obligation, in either case, to the extent not reimbursable to
the Company under the Companys directors and officers
liability insurance policy);
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any action required to comply with the rules and regulations of
the SEC or the SEC comment process, in each case, in connection
with this proxy statement or the Schedule 13E-3;
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any change in the market price or trading volume of our common
stock or our credit rating;
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any failure by us to meet any estimates, projections, forecasts
or revenue or earnings predictions, or any predictions or
expectations of the Company or of any securities analysts
(though Parent may still assert any event, change, effect,
development, state of facts, condition, circumstance or
occurrence that may have contributed to such failure
independently constitutes or contributes to a Material Adverse
Effect);
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the unreasonable failure of Parent to consent to, where required
by the merger agreement, any of the actions relating to the
conduct of our business prior to the effective time of the
merger; or
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any matter described or referred to in the reports and other
documents we have filed with, or furnished to, the SEC that are
publicly available as of the date of the merger agreement
(provided that the relevance of the disclosure of the matter is
reasonably apparent from the text of the disclosure) or
expressly and specifically (in sufficient detail that the
significance and materiality of the disclosure is
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readily apparent) described or referred to in the disclosure
schedule we delivered to Parent and Merger Sub in connection
with the entry into the merger agreement.
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Certain of Parents and Merger Subs representations
and warranties are qualified so that there is no breach unless
the inaccuracy of the representation or warranty would,
individually or in the aggregate, reasonably be expected to
prevent or materially impair or delay the ability of Parent or
Merger Sub to perform their respective obligations under the
merger agreement, of Parent to enforce its rights and the
obligations of members of the Swenson Granite Group under the
voting agreements or the contribution agreements or of Merger
Sub to consummate the Merger.
Conduct
of Business Prior to the Effective Time of the Merger
We have agreed in the merger agreement that until the effective
time of the merger, except as otherwise required in connection
with applicable law, with the prior written consent of Parent
(which consent may not be unreasonably withheld, delayed or
conditioned), as contemplated or permitted by the merger
agreement or as may be set forth in the disclosure schedule
delivered to Parent and Merger Sub in connection with the entry
into the merger agreement, we will, and will cause our
subsidiaries to (1) conduct our respective businesses and
operations in the ordinary course consistent with past practice,
(2) use commercially reasonable efforts to preserve intact
our respective current business organization and maintain our
respective relationships with employees, customers, suppliers
and others having business dealings with us or our subsidiaries
and (3) use commercially reasonable efforts to maintain in
effect all material governmental permits.
We have also agreed that until the effective time of the merger,
except as otherwise required in connection with applicable law,
with the prior written consent of Parent (which consent may not
be unreasonably withheld, delayed or conditioned), as
contemplated or permitted by the merger agreement or as may be
set forth in the disclosure schedule delivered to Parent and
Merger Sub in connection with the entry into the merger
agreement, we will not, and will cause our subsidiaries not to
(1) declare, set aside or pay any dividends on, or make any
other distributions in respect of, any of our respective capital
stock, other than dividends and distributions by one of our
direct or indirect wholly owned subsidiaries, (2) split,
combine or reclassify any of our respective capital stock,
(3) issue, deliver, sell, grant, pledge or otherwise
encumber any shares of our respective capital stock or rights to
acquire the same, (4) amend, authorize or propose to amend
our respective articles of incorporation or by-laws,
(5) acquire or agree to acquire any substantial portion of
the assets of, or any equity interest in, any business or entity
or any assets that are material, individually or in the
aggregate, to the Company and our subsidiaries, taken as a
whole, (6) other than in the ordinary course of business or
as may be required by applicable law or by existing contracts or
agreements, grant to any employee, officer or director of the
Company or any subsidiary of the Company any increase in
compensation, (7) grant or increase any severance or
termination pay, enter into any employment, consulting,
severance or termination agreement with any employee, officer or
director of the Company or any subsidiary of the Company, or
enter into or amend in any material respect any collective
bargaining agreement or benefit plan and (8) other than in
the ordinary course of business, and other than in connection
with Parents proposed financing agreements relating to the
merger, incur, create, assume or otherwise become liable for, or
repay or prepay, any indebtedness for borrowed money, or
guarantee any such indebtedness of any third party.
Access to
Information
During the period prior to the earlier of the effective time of
the merger and the termination of the merger agreement, we have
agreed to, and have agreed to cause our subsidiaries to:
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provide Parent and its representatives reasonable access, in a
manner not disruptive to the operations of our and our
subsidiaries respective businesses, during normal business
hours and upon reasonable notice, to our and our
subsidiaries properties, books and records; and
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furnish Parent and its representatives all information
concerning the business, properties and personnel of the Company
and our subsidiaries as may reasonably be requested and
necessary to consummate the merger and the financing relating to
the merger.
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Neither we nor our subsidiaries will be obligated to disclose
any information to Parent or Merger Sub if, in our reasonable
judgment and after taking into account any applicable
non-disclosure agreements, disclosure of the information would
(1) cause significant competitive harm to us or our
subsidiaries if the merger were not consummated,
(2) violate applicable law or any request or requirement of
a governmental entity or the provisions of any contract or
agreement to which we or any of our subsidiaries is a party or
(3) jeopardize any attorney-client or other legal
privilege. If we withhold any material requested by Parent or
its representatives due to one of the reasons outlined in the
immediately preceding sentence, we have agreed to inform Parent
of the general nature of what is being withheld. Parent has
agreed that it will not, and will cause its representatives not
to, use any information it may obtain pursuant to our
requirement to provide Parent and its representatives with
access to our properties, books and records for any competitive
or other purpose unrelated to the consummation of the merger or
the financing relating to the merger.
Acquisition
Proposals
The merger agreement contains no prohibition on the Company
seeking, or entering into discussions or negotiations
concerning, other acquisition offers or proposals and the
Company may provide material non-public information to a
potential competing acquirer. However, under the terms of the
merger agreement, the Company is required to, as promptly as
reasonably practicable (and in any event within two business
days after receipt by our board of directors or the special
committee), notify Parent of the receipt of any Acquisition
Proposal (as defined below). The Company is required to notify
Parent, in writing, of any decision of its board of directors or
of the special committee or a majority of the (but not less than
two) qualified directors as to whether to consider any
Acquisition Proposal or to enter into discussions or
negotiations concerning any Acquisition Proposal or to provide
material non-public information or data with respect to the
Company to any person, which notice will be given as promptly as
reasonably practicable after the determination was reached (and
in any event no later than two business days after the
determination was reached). In the event the Company receives an
Acquisition Proposal and it is determined, as described in the
immediately preceding sentence, to enter into discussions or
negotiations concerning the Acquisition Proposal or to provide
material non-public information or data with respect to the
Company to any person, then the Company is required to
(1) provide Parent with written notice setting forth the
information reasonably necessary to keep Parent reasonably
informed in all material respects of the status and material
terms of the Acquisition Proposal, as it may be amended, and
(2) promptly (and in any event within two business days of
the determination) notify Parent of any determination by our
board of directors or special committee or a majority of the
(but not less than two) qualified directors that the Acquisition
Proposal constitutes a Superior Proposal (as defined below). The
Company is required to provide to Parent copies of all
non-public information which the Company provides to the entity
or person or group making the Acquisition Proposal.
Under the terms of the merger agreement, an Acquisition
Proposal means any offer or proposal made by any person or
persons other than Parent, Merger Sub or any affiliate of Parent
or Merger Sub to acquire, other than as contemplated by the
merger agreement, (1) beneficial ownership (as defined
under Section 13(d) of the Securities Exchange Act of
1934) of more than 50% of our outstanding common stock
pursuant to a merger, consolidation or other business
combination, sale of shares of capital stock, tender offer or
exchange offer or similar transaction involving the Company or
(2) more than 50% of the assets of the Company and our
subsidiaries, taken as a whole. Under the terms of the merger
agreement, a Superior Proposal means an Acquisition
Proposal that our board of directors determines, based upon the
recommendation, and with the concurrence by a vote, of a
majority of the members of the special committee or of the
qualified directors after consultation by the special committee
or the qualified directors with outside counsel and financial
advisors (and taking into account any changes to the terms and
conditions of the merger agreement that may be proposed by
Parent to the Company in response to an Acquisition Proposal),
to be (1) more favorable to the Company and its
shareholders than the merger, and (2) reasonably capable of
being completed within a reasonable period of time on the terms
set forth in the Acquisition Proposal, including by obtaining
any financing contemplated by the Acquisition Proposal.
Except as described below, neither our board of directors nor
any committee of our board of directors may, directly or
indirectly, (1) withdraw or modify in a manner adverse to
Parent or Merger Sub our
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recommendation that our shareholders approve the merger
agreement, (2) adopt or recommend any Acquisition Proposal,
(3) in the event of a tender offer or exchange offer for
any of our outstanding common stock, fail to recommend against
acceptance of the tender offer or exchange offer by the
Companys shareholders within 10 business days of the
commencement of the tender offer or exchange offer, or
(4) allow the Company to execute or enter into any merger
agreement, acquisition agreement or other similar agreement with
respect to any Acquisition Proposal.
Prior to obtaining the approval of the merger agreement by the
holders of a majority of the outstanding shares of our common
stock entitled to vote thereon, including obtaining the majority
of the minority approval, we may, if the special committee or a
majority of the (but not less than two) qualified directors, and
our board of directors if required by applicable provisions of
the VBCA or our bylaws, determines in good faith, after
consultation with its outside counsel and after taking to
account any changes to the terms and conditions of the merger
agreement that may be proposed by Parent, that the failure to
take such action would reasonably be expected to be inconsistent
with the fiduciary duties of the Companys directors under
applicable law, upon providing at least five business days
notice to Parent, (1) withdraw or modify our board of
directors recommendation that our shareholders approve the
merger agreement, adopt or recommend an Acquisition Proposal or,
in the event of a tender offer or exchange offer for any of our
outstanding common stock, fail to recommend against acceptance
of the tender offer or exchange offer by the Companys
shareholders within 10 business days of the commencement of the
tender offer or exchange offer,
and/or
(2) in response to a Superior Proposal, cause the Company
to terminate the merger agreement to enter into an agreement
that contemplates a Superior Proposal.
Nothing contained in the merger agreement prohibits the Company,
our board of directors or the special committee or a majority of
the (but not less than two) qualified directors from taking and
disclosing to the Companys shareholders a position with
respect to a tender offer or exchange offer by a third party or
from taking any action or making any disclosure required by
applicable law, including
Sections 14d-9
and
14e-2
of
the Securities Exchange Act of 1934.
Public
Announcements
Parent and Rock of Ages have agreed that no press release or
other public announcement with respect to the merger agreement,
the merger or the other transactions contemplated by the merger
agreement will be issued by either party without the prior
agreement of the other party, except with respect to any release
or announcement required by applicable law, in which case the
party proposing to issue such press release or make such public
announcement will use commercially reasonable efforts to consult
in good faith with the other party before making any public
announcement. However, we may issue any public release or
announcement, without any prior agreement of or consultation
with Parent in connection with any press release or public
announcement relating to any action taken pursuant to the
provisions of the merger agreement summarized in the last two
paragraphs under THE MERGER AGREEMENT
Acquisition Proposals, above.
Indemnification
and Directors and Officers Insurance
Each of Parent, Merger Sub and the Company have agreed that all
rights to indemnification, advancement of expenses and
exculpation from liabilities for acts or omissions occurring at
or prior to the effective time of the merger in favor of each
present and former director and officer of the Company or any of
its subsidiaries, and each individual who is serving or has
served at the request of the Company as a director, officer or
trustee of another entity, in each case determined as of the
effective time of the merger (each of those individuals,
together with their heirs, executors or administrators, being
referred to as an indemnified party), as provided in the
Companys and its subsidiaries respective articles of
incorporation or bylaws or any indemnification or other
agreements of the Company or any of its subsidiaries, in each
case as in effect on the date of the merger agreement, will
remain obligations of the Company, as the surviving corporation,
without further action, at the effective time of the merger,
will survive the merger, will continue in full force and effect
in accordance with their terms and, except as required by
applicable law, will not be amended, repealed or otherwise
modified in any manner that would adversely affect the rights of
the indemnified parties.
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In addition to any rights that any indemnified party may have
under any contract or agreement, to the fullest extent permitted
by applicable law, from and after the effective time of the
merger, the Company, as the surviving corporation, shall
indemnify and hold harmless each indemnified party against all
claims, losses, liabilities, damages, judgments, inquiries,
fines, amounts paid in settlement and reasonable fees, costs and
expenses, including reasonable attorneys fees and
disbursements, incurred in connection with any proceeding,
whether civil, criminal, administrative or investigative,
arising out of, pertaining to or in connection with the fact
that the indemnified party is or was an officer, director,
employee, fiduciary or agent of the Company, or of another
entity if the indemnified partys service was at the
request of or for the benefit of the Company, whether asserted
or claimed prior to, at or after the effective time of the
merger. To the fullest extent permitted by applicable law, each
indemnified party will be entitled to advancement of expenses
from the Company, as the surviving corporation, incurred in the
defense of any proceeding (provided that any person to whom
expenses are advanced has provided an undertaking to repay any
advances if it is finally determined that the person is not
entitled to indemnification). The Company, as the surviving
corporation, is required to reasonably cooperate with the
indemnified parties in the defense of any matter for which the
indemnified party may be entitled to indemnification as
described in the merger agreement and any determination made or
required to be made with respect to whether an indemnified
partys conduct complies with standards under applicable
law will be made by independent legal counsel selected by the
Company, as the surviving corporation, and reasonably acceptable
to the indemnified party. Under the terms of the merger
agreement, no indemnified party may settle, compromise or
consent to the entry of any judgment in any matter indemnifiable
under the terms of the merger agreement unless Parent consents
in writing to the settlement, compromise or consent, which
consent by Parent may not be unreasonably withheld.
Under the terms of the merger agreement, for a period of at
least six years from the effective time of the merger, Parent is
required to maintain in effect the current policies of
directors and officers liability insurance and
fiduciary liability insurance maintained by the Company and its
subsidiaries for the indemnified parties and any other
employees, agents or other individuals otherwise covered by
those insurance policies prior to the effective time of the
merger with respect to matters occurring at or prior to the
effective time of the merger (including the merger and the other
transactions contemplated by the merger agreement). However, in
connection with maintaining the insurance policies, Parent and
the Company, as the surviving corporation of the merger, are not
required to pay annual premium for those insurance in excess of
300% of the last annual premium paid prior to the date of the
merger agreement.
Reasonable
Efforts and Notification of Certain Events
Under the terms of the merger agreement, the Company, Parent and
Merger Sub will, and Parent and the Company will cause their
respective subsidiaries to, each use their reasonable best
efforts to take, or cause to be taken, all actions, and do, or
cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable to
consummate and make effective the merger and the other
transactions contemplated by the merger agreement as promptly as
practicable, including:
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obtaining from any governmental entity or, to the extent
reasonably requested by Parent, any other third party consents,
licenses, permits, waivers, approvals, authorizations or orders,
making any filings and sending any notices, in each case, which
are material and required to be obtained, made or sent by the
Company or Parent or any of their subsidiaries in connection
with the authorization, execution and delivery of the merger
agreement and the consummation of the merger (though neither the
Company nor any of its subsidiaries will be required to make or
agree to make any payment or accept any material conditions or
obligations, including amendments to existing conditions and
obligations in connection with obtaining any consents, licenses,
permits, waivers, approvals, authorizations or orders); and
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executing or delivering any additional instruments necessary to
consummate the merger and to fully carry out the purposes of the
merger agreement.
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In making any filings, submissions, applications or requests,
the Company and Parent are, under the terms of the merger
agreement, required to cooperate with each other and to use
their reasonable best efforts to
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furnish to each other (on an outside counsel basis if
appropriate) all information required for any filing,
submission, application or request to be made pursuant to
applicable law in connection with the merger.
The Company is also required to notify Parent promptly after
becoming aware of any representation or warranty made by it in
the merger agreement being or becoming untrue or inaccurate, or
any failure of the Company or any of its subsidiaries to comply
with or satisfy in any material respect any covenant, condition
or agreement to be complied with or satisfied by it under the
merger agreement, such that the conditions to consummation of
the merger would not be satisfied. Further, from time to time
prior to the closing of the merger, the Company is required to
give prompt notice to Parent and thereafter promptly supplement
or amend the disclosure schedule delivered to Parent and Merger
Sub upon entry into the merger agreement with respect to any
matter arising after the date of the merger agreement which, if
existing or occurring at the date of the merger agreement, would
have been required to be set forth or described in the
disclosure schedule. However, unless Parent specifically agrees
in writing, any supplement or amendment of the disclosure
schedule will not cure any breach of any representation,
warranty, covenant or agreement made in the merger agreement.
Additionally, under the terms of the merger agreement, the
Company is required to promptly advise Parent orally and in
writing of any action, claim, suit, proceeding or governmental
investigation commenced or asserted after the date of the merger
agreement against the Company or any of its directors by any
shareholder of the Company relating to the merger agreement and
the merger, and the Company is required to keep Parent
reasonably informed regarding any such litigation.
Voting of
Our Common Stock at the Special Meeting by Parent, its
Subsidiaries and Members of the Swenson Granite Group.
Parent is required to vote or cause to be voted at the special
meeting of our shareholders all shares of our common stock which
it or any of its subsidiaries is entitled to vote or to direct
the voting of in favor of approval of the merger agreement.
Parent is also required to enforce, and not waive any of, its
rights under the voting agreements it has entered into with the
members of the Swenson Granite Group, and, pursuant to the terms
of those voting agreements, Parent is required to cause each of
the members of the Swenson Granite Group to vote or cause to be
voted at the special meeting of our shareholders all shares of
our common stock which the members of the Swenson Granite Group
are entitled to vote or to direct the voting of in favor of
approval of the merger agreement.
In order to enable the Company to determine whether the majority
of the minority approval has been obtained, immediately
following the closing of the polls at the special meeting and
the tabulation of the vote by the inspector of elections, Parent
will, to its knowledge, certify to the Company and the inspector
of elections in writing the number of shares of our Class A
common stock owned directly or through a broker or other nominee
by any member of Parent as of the record date for the special
meeting and the aggregate number of such shares that were voted
in favor of approval of the merger agreement.
Financing
of the Merger by Parent
Parent has agreed to use its best efforts to:
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maintain in effect the commitment letter it has in place in
connection with the Financing and, if Parent enters into a
definitive agreement relating to the Financing prior to the
effective time of the merger, then Parent is required to
maintain in effect the definitive financing agreement;
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execute the definitive financing agreement relating to the
Financing in the form attached to the commitment letter;
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satisfy or obtain a waiver of all conditions that are within its
control on a timely basis in order to obtain the Financing;
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comply in all material respects with its obligations under the
commitment letter and the definitive financing
agreement; and
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consummate the Financing contemplated by the commitment letter
and the definitive financing agreement at or prior to the
effective time of the merger.
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Parent has agreed to keep the Company reasonably informed of
material developments in respect of its efforts to arrange the
Financing. Also, until Parent has obtained the Financing and
used the proceeds to pay the amounts required under the merger
agreement, (1) Parent will enforce its rights under the
commitment letter and the definitive financing agreement, and
(2) without the Companys prior written consent,
Parent will not agree to or permit any amendment or modification
of, or waiver under, the commitment letter or the definitive
financing agreement in a manner that would delay or prevent the
closing of the merger.
However, Parent or Merger Sub may at any time, and without the
Companys consent, amend or replace the commitment letter
and the financing agreement contemplated thereby with
alternative financing arrangements so long as the alternative
financing arrangements (1) provide Parent prior to or
concurrent with the effective time of the merger with funds in
an amount at least equal to the amount, together with
Parents cash on hand, necessary for Parent and Merger Sub
to pay all amounts required to be paid by them as a result of
the merger, (2) are no less favorable to the Company than
the commitment letter and the form of financing agreement
attached thereto and (3) do not prevent or materially
impair or delay the closing of the merger.
Until the closing date of the merger, we are required to
reasonably cooperate with Parent and Merger Sub in connection
with the Financing. Parent has agreed to promptly, upon our
request, reimburse us for all
out-of-pocket
expenses incurred by us or our affiliates or representatives in
connection with our cooperation with Parent regarding
Parents financing of the merger. However, prior to the
effective time of the merger, neither the Company nor any of our
subsidiaries will be (1) required to execute and deliver
any agreements relating to the Financing or to consummate any
transactions contemplated by any financing agreements or
(2) enter into any agreements or take any action in
connection with Parents financing of the merger that would
impose or result in the creation of any obligation on the
Company or any of our subsidiaries. Parent and Merger Sub have
acknowledged and agreed that except for our agreement to
cooperate with Parent that is described in the first sentence of
this paragraph, prior to the effective time of the merger,
neither we nor any of our affiliates have any obligations or
responsibilities in connection with Parents financing
arrangements.
If, despite Parent and Merger Subs best efforts, the
financing arrangements Parent has entered into in connection
with the merger expire or are terminated, either in whole or in
part, prior to the closing of the merger, Parent and Merger Sub
are required to (1) promptly notify us of such expiration
or termination and the reasons for the expiration or termination
and (2) unless the merger agreement has been terminated
pursuant to its terms, then until the End Date, use their best
efforts to promptly arrange for adequate alternative financing
to replace the previous financing arrangements.
Actions
by Our Board of Directors Prior to the Effective Time of the
Merger
Until the effective time of the merger, the approval of the
special committee of our board of directors or a majority of the
(but not less than two) qualified directors then in office is
required to authorize (and, subject to our articles of
incorporation, our bylaws and the VBCA, the authorization of the
special committee or a majority of the (but not less than two)
qualified directors will constitute the authorization of our
board of directors and no other action on the part of the
Company, including any action by any other director of the
Company, will be required to authorize) any termination of the
merger agreement by the Company, any amendment of the merger
agreement or any waiver of any benefit or right of the Company
under the merger agreement, including any decrease in or change
of form of the merger consideration, and any extension of time
for performance of any obligation or agreements or conditions
contained in the merger agreement for the benefit of the
Company, or any action or determination by the Company required
or permitted to be taken or made by the Company under the merger
agreement. Further, until the effective time of the merger, any
action by the Company to enforce any obligation of Parent or
Merger Sub under the merger agreement will be effected only by
action of the special committee or a majority of the (but not
less than two) qualified directors, subject, however, to the our
articles of incorporation, our bylaws and the VBCA.
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Additional
Agreements
The merger agreement provides that the Company shall be
permitted prior to the effective time of the merger to take any
such steps as may be reasonably necessary or advisable to cause
any dispositions of our common stock (including derivative
securities with respect to our common stock) resulting from the
merger by each individual who is subject to the reporting
requirements of Section 16(a) of the Securities Exchange
Act of 1934 with respect to the Company, to be exempt under
Rule 16b-3
promulgated under the Exchange Act, so long as such steps are
taken in accordance with the No-Action Letter dated
January 12, 1999, issued by the SEC to Skadden.
Under the terms of contribution agreements Parent has entered
into with the members of the Swenson Granite Group, prior to the
effective time of the merger, Parent will acquire and hold a
certain number of shares of our common stock currently owned by
those members. Parent has agreed to enforce, and not waive any
of its rights under, the contribution agreements.
The merger agreement also provides that all real and personal
property transfer, documentary, sales, use, registration,
value-added, stamp, duty and other similar taxes incurred in
connection with the merger and the other transactions
contemplated by the merger agreement shall be borne by Parent.
Under the terms of the merger agreement, Parent is required to
cause Merger Sub and, after the effective time of the merger,
the Company, as the surviving corporation, to perform their
respective obligations under the merger agreement. Parent is
also required to cause Merger Sub to consummate the merger on
the terms and conditions set forth in the merger agreement and
Parent guarantees the payment by Merger Sub and, after the
effective time of the merger, the Company, as the surviving
corporation, of any amounts payable by Merger Sub or the
Company, as the surviving corporation, pursuant to the merger
and otherwise as provided in the merger agreement.
Parent has agreed and acknowledged that it has conducted its own
independent review and analysis of the businesses, assets,
condition, operations and prospects of the Company and its
subsidiaries and acknowledges that it has been provided access
to the properties, premises and records of the Company and its
subsidiaries for this purpose. Parent acknowledges that except
for the representations and warranties of the Company expressly
set forth in the merger agreement, none of the Company or its
subsidiaries nor any of their respective representatives have
made any representation or warranty, either express or implied,
as to the Company or its subsidiaries or as to the accuracy or
completeness of any of the information provided or made
available to Parent or any of its representatives.
In connection with Parents investigation of the Company,
Parent received from the Company and its representatives certain
projections and other forecasts as well as operational and
strategic information, including projected financial statements,
cash flow items and other data of the Company and its
subsidiaries and certain business plan information of the
Company and its subsidiaries. Parent, on behalf of itself and
Merger Sub, has acknowledged that there are uncertainties
inherent in attempting to make such projections and other
forecasts and plans and accordingly has not and is not relying
on them, that Parent is familiar with such uncertainties, that
on behalf of itself and Merger Sub, Parent is taking full
responsibility for making its own evaluation of the adequacy and
accuracy of all projections and other forecasts and plans so
furnished to it and that each of Parent and Merger Sub and their
respective representatives will have no claim against any person
with respect to the projections and other forecasts and plans
furnished to Parent and its representatives.
Conditions
to Completion of the Merger
We will consummate the merger only if the conditions set forth
in the merger agreement are satisfied or waived, where
permissible. The conditions to each partys obligations
include the following:
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approval of the merger agreement by the Companys
shareholders, including obtaining the majority of the minority
approval; and
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the absence of any order of or any other action by a
governmental entity enjoining or otherwise prohibiting
consummation of the merger or materially changing the terms or
conditions of the merger agreement.
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The obligation of Merger Sub to consummate the merger is further
subject to the satisfaction (or waiver by Merger Sub, where
permissible) at or prior to the closing of the merger of the
following conditions:
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our representation and warranty that there has not been a
Material Adverse Effect since July 3, 2010 through the date
of the merger agreement will be true and accurate in all
respects;
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our other representations and warranties will be true and
accurate as of the date of the merger agreement and on and as of
the closing date of the merger (other than those representations
and warranties that address matters only as of a particular date
or only with respect to a specific period of time, which
representations and warranties need only be true and accurate as
of such date or with respect to such period) unless the impact
of the failure of any of those representations and warranties
(when read without exception or qualification as to materiality
or Material Adverse Effect) to be so true and accurate has not
had a Material Adverse Effect;
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we shall have performed or complied in all material respects
with all agreements or covenants required to be performed or
complied with by us under the merger agreement at or prior to
the closing of the merger;
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we shall have delivered to Parent a certificate, dated the date
of the closing of the merger, signed by an executive officer of
the Company certifying our satisfaction of the closing
conditions set forth in the three bullet points above;
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not more than 20% of the shares of our common stock outstanding
immediately prior to the effective time, assuming the exercise
of Company Class A common stock options for this purpose,
shall be shares with respect to which the holder of the shares
is seeking appraisal rights in accordance with
Section 13.21 of the VBCA; and
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from the date of the merger agreement through the effective time
of the merger, there shall not have occurred any event that has
had a Material Adverse Effect.
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Our obligation to consummate the merger is further subject to
the satisfaction (or our waiver, where permissible) at or prior
to the closing of the merger of the following conditions:
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the representation and warranties of Parent and Merger Sub will
be true and accurate as of the date of the merger agreement and
on and as of the closing date of the merger (other than those
representations and warranties that address matters only as of a
particular date or only with respect to a specific period of
time, which representations and warranties need only be true and
accurate as of such date or with respect to such period) unless
the impact of the failure of any of those representations and
warranties (when read without exception or qualification as to
materiality) to be so true and accurate does not, individually
or in the aggregate, prevent Merger Sub from consummating, or
Parent from causing Merger Sub to consummate, or materially
impair the ability of Merger Sub to consummate or of Parent to
cause Merger Sub to consummate, the merger;
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Parent and Merger Sub shall have performed or complied in all
material respects with all agreements or covenants required to
be performed or complied with by them under the merger agreement
at or prior to the closing of the merger; and
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Parent shall have delivered to us a certificate, dated the date
of the closing of the merger, signed by an executive officer of
Parent certifying Parents satisfaction of the closing
conditions set forth in the two bullet points above.
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The parties do not have any present intention to waive any of
the conditions to the merger and do not anticipate any
circumstances under which any of the conditions would be waived.
96
No party may rely on the failure of any condition set forth
above to be satisfied as a basis for not consummating the merger
if the failure to satisfy the condition was caused by that
partys failure to act in good faith or use its reasonable
best efforts to consummate the merger.
Termination
of the Merger Agreement
The merger agreement may be terminated at any time prior to the
effective time of the merger, and, except where noted, whether
before or after the shareholder approvals have been obtained:
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by the mutual written consent of the Company and Parent;
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by either the Company or Parent if:
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the merger is not consummated prior to May 18, 2011, unless
a breach of the merger agreement by the party seeking to
exercise such termination right caused, or resulted in, the
failure of the merger to be consummated on or before such date;
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any governmental entity enacts or issues any order to takes any
other action that is final and non-appealable and has the effect
of preventing or prohibiting the consummation of the merger or
materially changing the terms and conditions of the merger
agreement, unless the party seeking to exercise such termination
right has not complied with its obligation to use reasonable
best efforts to prevent any such order from being enacted or
issued or any such action from being taken; or
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the majority of the minority approval is not obtained at the
special meeting that is duly convened and at which a vote on
approval of the merger agreement is taken;
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upon a breach of any covenant or agreement on the part of Parent
or Merger Sub, or if any of Parents or Merger Subs
representations or warranties are untrue, in any case so that
one of the closing conditions to the merger would not be
satisfied and the breach is either incapable of being cured
prior to May 18, 2011 or, if the breach is capable of being
cured prior to May 18, 2011, is not so cured on or prior to
May 18, 2011 so long as neither the Company nor any of its
subsidiaries has failed to perform in any material respect any
of their obligations under the merger agreement;
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in response to a Superior Proposal prior to the approval of the
merger agreement by the Companys shareholders; or
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if the approval of the merger agreement by the holders of a
majority of the outstanding shares of our common stock entitled
to vote thereon shall not have been obtained at the special
meeting that is duly convened and at which a vote on approval of
the merger agreement is taken;
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upon a breach of any covenant or agreement on the part of the
Company, or if any of the Companys representations or
warranties are untrue, in any case so that one of the closing
conditions to the merger would not be satisfied and the breach
is either incapable of being cured prior to May 18, 2011
or, if the breach is capable of being cured prior to
May 18, 2011, is not so cured on or prior to May 18,
2011 so long as neither Parent nor Merger Sub has failed to
perform in any material respect any of their obligations under
or in connection with the merger agreement; or
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if, prior to the approval of the merger agreement by the
Companys shareholders, pursuant to the terms of the merger
agreement, our board of directors or any committee of our board
of directors withdraws or modifies our board of directors
recommendation that shareholders approve the merger agreement,
adopt or recommend an Acquisition Proposal or, in the event of a
tender offer or exchange offer for any of our outstanding common
stock, fail to recommend against acceptance of the tender offer
or exchange offer by the Companys shareholders within 10
business days of the commencement of the tender offer or
exchange offer.
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97
Termination
Fees and Expenses
Except as otherwise set forth in the merger agreement, all costs
and expenses incurred in connection with the merger agreement
and the consummation of the merger and the other transactions
contemplated by the merger agreement are to be paid by the party
incurring such costs and expenses, whether or not the merger is
consummated.
In addition to any other rights or remedies we may have under
the terms of the merger agreement, Parent has agreed to
reimburse us for all of our Company Expenses (as defined below)
in the event that we terminate the merger agreement, as
described above, due to Parents or Merger Subs
breach of their covenants or agreements contained in the merger
agreement.
In addition to any other rights or remedies Parent may have
under the terms of the merger agreement, we have agreed to
reimburse Parent for all Parent Expenses (as defined below) in
the event that Parent terminates the merger agreement, as
described above, due to our breach of our covenants or
agreements contained in the merger agreement.
We have also agreed to reimburse Parent for all Parent Expenses
(as defined below) in the event that we terminate the merger
agreement in response to a Superior Proposal. However, if we
terminate the merger agreement in response to a Superior
Proposal and pay Parent its costs and expenses as described in
the immediately preceding sentence, then neither we nor any of
our representatives or affiliates will have any further
liability to Parent or Merger Sub under the merger agreement.
If we terminate the merger agreement and as of the date of
termination (1) all of the conditions to the closing of the
merger have been satisfied or waived (other than those
conditions that, while they are capable of being satisfied as of
the date of termination, by their terms are to be satisfied at
the closing of the merger) and (2) the merger shall not
have been consummated on or prior to May 18, 2011 because
Parent has failed to obtain the proceeds of the Financing or any
alternative financing, then Parent is required to pay us a
termination fee, which termination fee will equal the greater of
our Company Expenses (as defined below) and $2,518,000. If we
terminate the merger agreement and are entitled to and receive
the termination fee, then neither Parent, Merger Sub nor any of
their representatives or affiliates will have any further
liability to us under the merger agreement.
Under the terms of the merger agreement, Company
Expenses means all of the documented
out-of-pocket
costs and expenses incurred by or on behalf of the Company in
connection with the initial acquisition proposal submitted by
Parent to our board of directors, the process undertaken by or
on behalf of the special committee in response to that proposal,
the merger agreement and the transactions contemplated by the
merger agreement, including, without limitation, the fees and
disbursements of counsel, financial advisors, accountants and
bankers and the fees paid to members of the special committee.
Under the terms of the merger agreement, Parent
Expenses means all of the documented
out-of-pocket
costs and expenses incurred by Parent in connection with the
merger agreement and the transactions contemplated by the merger
agreement, including, without limitation, the fees and
disbursements of counsel, financial advisors, accountants and
bankers.
Under the terms of the merger agreement, if either the Company
or Parent, as the case may be, receives insurance proceeds as a
result of any losses or expenses with respect to which it has
also received reimbursement payments from the other party under
the terms of the merger agreement, then the party receiving such
insurance proceeds shall pay the amount of the insurance
proceeds (net of any actual costs, expenses or premiums incurred
in connection with securing or obtaining such proceeds and in
any event not in excess of the reimbursement payment actually
received from Parent or the Company, as the case may be, with
respect to the Company Expenses or Parent Expenses, as the case
may be) to the other party as the insurance proceeds are
actually received by the Company or Parent. The Company and
Parent have agreed to each use commercially reasonable efforts
to pursue any insurance claim that is or may be available to
such party with respect to Company Expenses or Parent Expenses,
as the case may be, for which those expenses may have been
reimbursed by the other party.
98
Amendment
or Modification of the Merger Agreement
Subject to applicable law, the merger agreement may be amended,
modified and supplemented in any and all respects, whether
before or after any vote of the shareholders of the Company, by
written agreement of Parent, Merger Sub and the Company, at any
time prior to the closing date of the merger. However, if the
shareholders of the Company have approved the merger agreement,
then no amendment, modification or supplement of the merger
agreement can reduce or change the merger consideration or
adversely affect the rights of the Companys shareholders
unless the shareholders of the Company approve the amendment,
modification or supplement.
Specific
Performance
Parent and Merger Sub have acknowledged and agreed that, in the
event of any breach of the merger agreement by Parent or Merger
Sub, the Company, its shareholders and its option holders would
be irreparably and immediately harmed and could not be made
whole by monetary damages. Accordingly, Parent and Merger Sub
have agreed that the Company, on its behalf and on behalf of its
shareholders and option holders, shall be entitled, in addition
to any other remedy to which they may be entitled at law or in
equity, to compel specific performance to prevent or restrain
breaches or threatened breaches of the merger agreement.
However, as discussed in greater detail under THE MERGER
AGREEMENT Termination Fees and Expenses, the
Company is not entitled to seek specific performance in the
event it is entitled to and receives the termination fee equal
to the greater of our Company Expenses and $2,518,000.
VOTING
AND CONTRIBUTION AGREEMENTS
Voting
Agreements
The following summary of the material terms of the voting
agreements is qualified in its entirety by reference to the
voting agreement, a copy of which is set forth in Annex B
to this proxy statement.
Parties
and Controlling Interest in Company
Each member of the Swenson Granite Group has entered into a
voting agreement with Parent. Parent has advised us that the
members of the Swenson Granite Group beneficially own, in the
aggregate, 408,701 shares of Company Class A common
stock and 2,449,793 shares of Company Class B common
stock, representing approximately 81% of the total voting power
of all outstanding shares of Company common stock.
Voting
Agreement and Irrevocable Proxy
The voting agreements require that each member of the Swenson
Granite Group vote the shares of our common stock beneficially
owned by such shareholder (referred to as subject
shares) as follows: (1) in favor of the merger, the
execution, delivery and performance by the Company of the merger
agreement and the adoption and approval of the terms thereof and
in favor of each of the other actions and agreements
contemplated by the merger agreement, (2) against any
alternate Acquisition Proposal or any other action or agreement
that would result in a breach of a covenant, representation or
warranty or other obligation or agreement of Rock of Ages under
the merger agreement, or which could result in any of the
conditions to the Companys obligations under the merger
agreement not being fulfilled, (3) against any
reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any of its subsidiaries or
(4) against any other action, agreement or transaction
involving the Company (or any subsidiary thereof) that is
intended, or would reasonably be expected to materially impede,
interfere with or prevent the consummation of the merger or any
other transactions contemplated by the merger agreement. In the
event that any member of the Swenson Granite Group breaches or
threatens to breach any provision of a voting agreement, Parent
is granted an irrevocable proxy to vote or give consent or
approval (including giving a written consent) in respect of the
subject shares, for and in his or her name, place and stead, in
accordance with the terms above.
99
Prior to the expiration or termination of the voting agreements,
none of the members of the Swenson Granite Group may enter into
any agreement that would disable or restrict his or her legal
power, authority and right to vote all of the subject shares
except as contemplated above.
Transfer
Restrictions
Prior to the earlier of the effective time of the merger or the
termination of either the merger agreement or the voting
agreements, no member of the Swenson Granite Group may, directly
or indirectly, sell, transfer, exchange, pledge, encumber or
otherwise dispose of, or in any other way reduce his or her risk
of ownership or investment in, or make any offer or agreement
relating to any of the foregoing with respect to, any subject
shares. However, provided that a donee or transferee agrees in a
writing (reasonably satisfactory to Parent) to be bound by the
restrictions set forth in the voting agreements, members of the
Swenson Granite Group may transfer all or any portion of the
subject shares in the following circumstances:
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if the transfer is by will or intestacy;
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if the transfer is to the shareholders members, partners,
affiliates or immediate family members (including the
shareholders spouse, lineal descendants, father, mother,
brother, sister or first cousin, and father, mother, brother or
sister of the shareholders spouse);
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if the transfer is to Parent or any parent, subsidiary or
affiliate of Parent; or
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if the transfer is to a trust, the beneficiaries of which are
such shareholder
and/or
members of shareholders immediate family.
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Power
of Attorney and Schedule 13D
The members of the Swenson Granite Group have appointed Kurt
Swenson as their attorney-in-fact for the purpose of, from time
to time, as such attorney-in-fact deems necessary or appropriate
to comply with the Exchange Act, execute and file with the SEC
any and all amendments to the Statement on Schedule 13D
originally filed by Parent and certain members of the Swenson
Granite Group on May 12, 2010, for the purpose of dealing
in the common stock of the Company.
Termination
Each voting agreement will automatically terminate upon the
earliest of (1) the mutual consent of the parties to the
voting agreement, (2) the effective time of the merger or
(3) the termination of the merger agreement in accordance
with its terms.
Contribution
Agreements
The following summary of the material terms of the contribution
agreement is qualified in its entirety by reference to the
contribution agreement, a copy of which is set forth in
Annex C to this proxy statement.
Parties
Each member of the Swenson Granite Group has entered into a
contribution agreement with Parent, effective as of the date of
the merger agreement, whereby such member has agreed to
contribute to Parent shortly prior to the effective time of the
merger some or all of the shares of Company common stock owned
by such member. The members of the Swenson Granite Group are
holders of Class A
and/or
Class B common stock of the Company who are also holders of
shares of membership interest in Parent.
Contribution
Agreement Terms
The contribution agreements provide that each member of the
Swenson Granite Group will sell, assign and convey to Parent all
of his or her right, title and interest in and to the number of
Class A
and/or
Class B shares of Rock of Ages common stock specified in
the members contribution agreement in exchange for
additional shares of membership interest in Parent and cash in
lieu of fractional shares. The shareholders
100
obligation to effect this exchange becomes absolute and
unconditional upon the effective date of the contribution
agreement, and the exchange will take place on the business day
immediately preceding the effective time of the merger.
Parent has advised us that the members of the Swenson Granite
Group will contribute to Parent an aggregate of
258,326 shares of Rock of Ages Class A common
stock and 2,449,793 shares of Rock of
Ages Class B common stock. The following chart sets
forth the number of shares of the Companys Class A
and Class B common stock that each member of the Swenson
Granite Group will contribute to Parent in exchange for
additional shares of membership interest in Parent, as well as
the merger consideration to be received by any member of the
Swenson Granite Group that is not contributing all of such
members shares of Class A and Class B common
stock to Parent:
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Number of Shares
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Beneficially Owned by
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Number of Shares to be
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Named Person
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Contributed to Parent
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Merger
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Class A
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Class B
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Class A
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Class B
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Consideration
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Common
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Common
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Common
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Common
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to be
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Name
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Stock
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Stock
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Stock
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Stock
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Received
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The Kevin C. Swenson Revocable Trust of 1994 U/D/T 3-10-94
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1,023,489
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1,023,489
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Kurt M. Swenson Revocable Trust of 2000
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130,000
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1,005,000
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130,000
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1,005,000
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Lois S. Moore Revocable Trust
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152,712
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152,712
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Robert L. Pope
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15,000
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144,875
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15,000
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144,875
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Karen Swenson
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34,807
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34,807
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Peter B. Moore
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32,453
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32,453
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Charles M. Waite
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15,874
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29,126
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15,874
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29,126
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Guy A. Swenson, III
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16,544
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16,544
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Peter A. Friberg
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150,375
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5,394
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5,394
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$
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789,469
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Nancy F. Pope
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5,393
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5,393
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Christina W. Kimball Revocable Trust 2/21/2001
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35,700
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35,700
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Richard C. Kimball JT Account w/ Christina Kimball
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29,126
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29,126
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Richard C. Kimball IRA
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7,300
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7,300
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Jon Gregory
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25,326
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25,326
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TOTAL
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408,701
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2,449,793
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258,326
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2,449,793
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$
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789,469
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Transfer
Restrictions
Members of the Swenson Granite Group are required to deposit
their shares of Company common stock with Parent within
30 days after the effective date of the contribution
agreements. Prior to the effective time of the merger or the
termination of either the merger agreement or the contribution
agreements, no member of the Swenson Granite Group may, directly
or indirectly, sell, transfer, exchange, pledge, encumber or
otherwise dispose of, or in any other way reduce his or her risk
of ownership or investment in, or make any offer or agreement
relating to any of the foregoing with respect to, any subject
shares. However, provided that a donee or transferee agrees in a
writing (reasonably satisfactory to Parent) to be bound by the
restrictions set forth in the voting agreements (see
VOTING AND CONTRIBUTION AGREEMENTS Voting
Agreements, below), members of the Swenson Granite Group
may transfer all or any portion of the subject shares in the
following circumstances:
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if the transfer is by will or intestacy;
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101
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if the transfer is to the shareholders members, partners,
affiliates or immediate family members (including the
shareholders spouse, lineal descendants, father, mother,
brother, sister or first cousin, and father, mother, brother or
sister of the shareholders spouse);
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if the transfer is to Parent or any parent, subsidiary or
affiliate of Parent; or
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if the transfer is to a trust, the beneficiaries of which are
such shareholder
and/or
members of shareholders immediate family.
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Termination
Each contribution agreement will automatically terminate upon
the earliest of (1) the mutual consent of the parties to
the contribution agreement, (2) the effective time of the
merger or (3) the termination of the merger agreement in
accordance with its terms.
102
SELECTED
HISTORICAL FINANCIAL DATA
The following table sets forth selected historical consolidated
financial data for the Company and its subsidiaries. The
selected historical consolidated financial data as of
December 31, 2009 and December 31, 2008 and for each
of the years in the two-year period ended December 31, 2009
have been derived from the Companys audited consolidated
financial statements appearing in the Companys Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2009, which is
attached as Annex F and incorporated into and constitutes
part of this proxy statement. The selected historical
consolidated financial data as of December 31, 2007,
December 31, 2006 and December 31, 2005 and for each
of the fiscal years ended December 31, 2007,
December 31, 2006 and December 31, 2005 have been
derived from the Companys audited consolidated financial
statements, which do not appear in this proxy statement. The
selected historical consolidated financial data as of and for
the nine-month periods ended October 2, 2010 and
October 3, 2009 have been derived from the Companys
unaudited consolidated financial statements appearing in the
Companys Quarterly Report on
Form 10-Q
for the quarterly period ended October 2, 2010, which is
attached as Annex G and incorporated into and constitutes
part of this proxy statement. The historical results of Rock of
Ages included below are not necessarily indicative of the
Companys future performance, and results of operations for
the respective nine-month periods ended October 2, 2010 and
October 3, 2009 are not necessarily indicative of the
results of operations of Rock of Ages for the full fiscal years.
The unaudited selected historical consolidated financial data
reflect all adjustments (consisting of normal, recurring
adjustments) which are, in the opinion of management, necessary
for a fair presentation of our financial position, results of
operations and cash flows at the end of and for the periods
presented.
The book value per basic and diluted share as of October 2,
2010 was $3.84 and $3.83, respectively.
The information contained in this section, SELECTED
HISTORICAL FINANCIAL DATA, should be read in conjunction
with Managements Discussion and Analysis of
Financial Condition and Results of Operations in the
Companys
10-K
and
10-Q
SEC
filings (as filed under the Exchange Act) and the Companys
consolidated financial statements, including the related notes.
See WHERE YOU CAN FIND MORE INFORMATION.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
Year Ended
|
|
|
|
Oct. 2,
|
|
|
Oct. 3,
|
|
|
Dec. 31,
|
|
|
Dec. 31,
|
|
|
Dec. 31,
|
|
|
Dec. 31,
|
|
|
Dec. 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005(1)
|
|
|
|
|
|
|
(In thousands, except per share data and ratios)
|
|
|
|
|
|
|
|
|
Operating Results
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
$
|
37,930
|
|
|
$
|
33,242
|
|
|
$
|
45,521
|
|
|
$
|
55,869
|
|
|
$
|
55,546
|
|
|
$
|
50,157
|
|
|
$
|
89,042
|
|
Gross profit(2)
|
|
|
10,217
|
|
|
|
7,989
|
|
|
|
11,279
|
|
|
|
10,891
|
|
|
|
14,620
|
|
|
|
11,825
|
|
|
|
31,931
|
|
Operating expenses(3)
|
|
|
7,417
|
|
|
|
6,866
|
|
|
|
9,039
|
|
|
|
11,182
|
|
|
|
13,573
|
|
|
|
12,199
|
|
|
|
38,822
|
|
Operating profit (loss)
|
|
|
2,800
|
|
|
|
1,123
|
|
|
|
2,240
|
|
|
|
(291
|
)
|
|
|
1,047
|
|
|
|
(375
|
)
|
|
|
(6,891
|
)
|
Interest expense
|
|
|
827
|
|
|
|
871
|
|
|
|
1,158
|
|
|
|
1,368
|
|
|
|
1,844
|
|
|
|
2,002
|
|
|
|
1,924
|
|
Other expense (income), net(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(350
|
)
|
Income (loss) from continuing operations before income tax
|
|
|
1,973
|
|
|
|
252
|
|
|
|
1,082
|
|
|
|
(1,658
|
)
|
|
|
(797
|
)
|
|
|
(2,376
|
)
|
|
|
(8,465
|
)
|
Income tax expense(5)
|
|
|
305
|
|
|
|
59
|
|
|
|
280
|
|
|
|
395
|
|
|
|
536
|
|
|
|
473
|
|
|
|
7,611
|
|
Income (loss) from continuing operations
|
|
|
1,668
|
|
|
|
193
|
|
|
|
802
|
|
|
|
(2,053
|
)
|
|
|
(1,333
|
)
|
|
|
(2,849
|
)
|
|
|
(16,075
|
)
|
Discontinued operations(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(142
|
)
|
|
|
(5,224
|
)
|
|
|
(2,516
|
)
|
|
|
(68
|
)
|
Net income (loss)
|
|
$
|
1,668
|
|
|
$
|
193
|
|
|
$
|
802
|
|
|
$
|
(2,195
|
)
|
|
$
|
(6,556
|
)
|
|
$
|
(5,365
|
)
|
|
$
|
(16,143
|
)
|
Earnings (loss) per common share basic and diluted:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations
|
|
$
|
0.22
|
|
|
$
|
0.03
|
|
|
$
|
0.11
|
|
|
$
|
(0.28
|
)
|
|
$
|
(0.18
|
)
|
|
$
|
(0.39
|
)
|
|
$
|
(2.17
|
)
|
Discontinued operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.02
|
)
|
|
|
(0.70
|
)
|
|
|
(0.34
|
)
|
|
|
(0.01
|
)
|
Net income (loss) per share basic and diluted:
|
|
$
|
0.22
|
|
|
$
|
0.03
|
|
|
$
|
0.11
|
|
|
$
|
(0.30
|
)
|
|
$
|
(0.88
|
)
|
|
$
|
(0.73
|
)
|
|
$
|
(2.18
|
)
|
Average common shares outstanding basic:
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,399
|
|
|
|
7,399
|
|
Average common shares outstanding diluted:
|
|
|
7,435
|
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,399
|
|
|
|
7,399
|
|
103
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
Year Ended
|
|
|
|
Oct. 2,
|
|
|
Oct. 3,
|
|
|
Dec. 31,
|
|
|
Dec. 31,
|
|
|
Dec. 31,
|
|
|
Dec. 31,
|
|
|
Dec. 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005(1)
|
|
|
|
|
|
|
(In thousands, except per share data and ratios)
|
|
|
|
|
|
|
|
|
Balance Sheet Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets(7)
|
|
$
|
28,932
|
|
|
$
|
27,830
|
|
|
$
|
26,410
|
|
|
$
|
33,080
|
|
|
$
|
51,487
|
|
|
$
|
45,219
|
|
|
$
|
44,708
|
|
Total assets(8)
|
|
|
60,563
|
|
|
|
60,163
|
|
|
|
58,452
|
|
|
|
64,443
|
|
|
|
84,645
|
|
|
|
94,388
|
|
|
|
98,612
|
|
Current liabilities(9),(10)
|
|
|
6,452
|
|
|
|
4,426
|
|
|
|
4,250
|
|
|
|
4,581
|
|
|
|
12,175
|
|
|
|
13,051
|
|
|
|
12,977
|
|
Long-term debt, less current maturities(11)
|
|
|
11,660
|
|
|
|
13,372
|
|
|
|
13,361
|
|
|
|
13,904
|
|
|
|
14,158
|
|
|
|
251
|
|
|
|
21,445
|
|
Total liabilities
|
|
|
32,073
|
|
|
|
34,177
|
|
|
|
31,948
|
|
|
|
44,011
|
|
|
|
54,174
|
|
|
|
61,887
|
|
|
|
57,136
|
|
Shareholders equity
|
|
|
28,490
|
|
|
|
25,986
|
|
|
|
26,504
|
|
|
|
20,431
|
|
|
|
30,471
|
|
|
|
32,501
|
|
|
|
41,476
|
|
|
|
|
(1)
|
|
The Companys historical consolidated financial data has
been restated to reflect the discontinuation of the
Companys retail division for all fiscal years except for
the fiscal year ended December 31, 2005.
|
|
(2)
|
|
Fiscal Year ended December 31, 2008:
includes a
quarry inventory write-down of $3.9 million during the
fiscal year ended December 31, 2008.
|
|
(3)
|
|
Nine Months ended October 2, 2010:
includes
costs and expenses associated with the Companys
exploration of strategic options and a shareholder lawsuit
totaling approximately $852,000 during the nine months ended
October 2, 2010.
|
|
|
|
Fiscal Year ended December 31, 2009:
includes
the effect of pension curtailment of approximately $95,000
during the fiscal year ended December 31, 2009.
|
|
|
|
Fiscal Year ended December 31, 2008:
includes
an impairment of long-lived assets of approximately
$1.3 million during the fiscal year ended December 31,
2008.
|
|
|
|
Fiscal Year ended December 31, 2007:
includes
an impairment of investments in and advances to an affiliate of
approximately $1.4 million and an insurance recovery of
approximately $212,000 during the fiscal year ended
December 31, 2007.
|
|
(4)
|
|
Fiscal Year ended December 31, 2005:
includes a
gain on sale of investments of approximately $350,000.
|
|
(5)
|
|
Fiscal Year ended December 31, 2005:
income tax
expense includes the adjustment to the valuation allowance
against the deferred tax assets to fully reserve for the entire
net U.S. deferred tax asset which resulted in a charge to tax
expense of approximately $9.2 million.
|
|
(6)
|
|
Fiscal Year ended December 31, 2008:
the
Companys loss from discontinued operations resulted from
the sale of the Companys retail division, which closed on
January 17, 2008. The loss from operations for the retail
division was approximately $142,000 for the fiscal year ended
December 31, 2008, including allocated interest expenses of
$23,000.
|
|
|
|
Fiscal Year ended December 31, 2007:
the
Companys loss from discontinued operations resulted from
the classification of its retail division as a discontinued
operation. Based on the terms of this divisions January
2008 sale, an impairment charge of $5.908 million was
recognized in the fourth quarter of 2007. The $5.2 million
loss from discontinued operations for the fiscal year ended
December 31, 2007 also takes into account (1) the
retail divisions operating income of $1.358 million
for the fiscal year and (2) interest expenses of
approximately $674,000 allocated to the retail division.
|
|
|
|
Fiscal Year ended December 31, 2006:
the
Companys loss from discontinued operations resulted from
the classification of its retail division as a discontinued
operation. The loss from operations for the retail division was
approximately $3.1 million for the fiscal year ended
December 31, 2006, including allocated interest expenses of
approximately $577,000. The Company also sold its Kershaw
quarries in South Carolina during the fiscal year ended
December 31, 2006, for a gain of approximately $614,000.
The Kershaw quarries also reported operating income of
approximately $2,000 during the fiscal year.
|
|
|
|
Fiscal Year ended December 31, 2005:
the
Companys loss from discontinued operations resulted from a
net loss of approximately $68,000 reported by the Companys
Kershaw quarries in South Carolina.
|
104
|
|
|
(7)
|
|
As of December 31, 2007:
includes current
assets of discontinued operations of approximately
$14.3 million.
|
|
|
|
As of December 31, 2006:
includes current
assets of discontinued operations of approximately
$8.5 million.
|
|
(8)
|
|
As of December 31, 2006:
includes non-current
assets of discontinued operations of approximately
$13.7 million.
|
|
(9)
|
|
Excluding short-term debt or borrowings and current maturities
of long-term debt.
|
|
(10)
|
|
As of December 31, 2007:
includes current
liabilities of discontinued operations of approximately
$6.7 million.
|
|
|
|
As of December 31, 2006:
includes current
liabilities of discontinued operations of approximately
$7.0 million.
|
|
(11)
|
|
As of December 31, 2006:
long-term debt with
CIT was reclassified as current due to the loan facility
maturing in less than one year.
|
RATIO OF
EARNINGS TO FIXED CHARGES
The following table contains the Companys ratio of
earnings to fixed charges for the years ended December 31,
2009 and 2008, and the nine-month periods ended October 2,
2010 and October 3, 2009.
Ratio of
Earnings to Fixed Charges (In $ 000s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
Fiscal Year Ended
|
|
|
|
Oct. 3,
|
|
|
Oct. 2,
|
|
|
Dec. 31,
|
|
|
Dec. 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
2009
|
|
|
2008
|
|
|
Income (loss) from continuing operations, before taxes
|
|
$
|
1,973
|
|
|
$
|
252
|
|
|
$
|
1,082
|
|
|
$
|
(1,658
|
)
|
Fixed charges
|
|
|
849
|
|
|
|
894
|
|
|
|
1,188
|
|
|
|
1,399
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings, as adjusted
|
|
$
|
2,822
|
|
|
$
|
1,146
|
|
|
$
|
2,270
|
|
|
$
|
(259
|
)
|
Fixed charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expenses including amortization of debt costs
|
|
$
|
827
|
|
|
$
|
871
|
|
|
$
|
1,158
|
|
|
$
|
1,368
|
|
Interest factor on lease expenses (15% of expense)
|
|
|
22
|
|
|
|
23
|
|
|
|
30
|
|
|
|
31
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fixed charges
|
|
$
|
849
|
|
|
$
|
894
|
|
|
$
|
1,188
|
|
|
$
|
1,368
|
|
Ratio of earnings to fixed charges
|
|
|
3.32
|
|
|
|
1.28
|
|
|
|
1.91
|
|
|
|
(0.19
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MARKET
PRICE AND DIVIDEND INFORMATION
The Companys Class A common stock is traded on The
NASDAQ Global Market under the symbol ROAC.
On ,
201 , there
were shares
of Class A common stock outstanding, held by approximately
[ ] shareholders of record. There is no
public market for the Rock of Ages Class B common
stock, but the Class B common stock is convertible at all
times at the option of the holder into an equal number of shares
of the Companys Class A common stock.
105
The following table shows, for the periods indicated, the
reported high and low sales prices per share of the Class A
common stock on The NASDAQ Global Market.
|
|
|
|
|
|
|
|
|
|
|
High
|
|
|
Low
|
|
|
Year Ended December 31, 2008
|
|
|
|
|
|
|
|
|
First quarter
|
|
$
|
5.45
|
|
|
$
|
3.98
|
|
Second quarter
|
|
|
4.33
|
|
|
|
3.27
|
|
Third quarter
|
|
|
3.37
|
|
|
|
1.85
|
|
Fourth quarter
|
|
|
3.39
|
|
|
|
1.29
|
|
Year Ended December 31, 2009
|
|
|
|
|
|
|
|
|
First quarter
|
|
|
2.48
|
|
|
|
1.49
|
|
Second quarter
|
|
|
2.48
|
|
|
|
1.65
|
|
Third quarter
|
|
|
3.88
|
|
|
|
1.85
|
|
Fourth quarter
|
|
|
3.66
|
|
|
|
2.65
|
|
Year Ending December 31, 2010
|
|
|
|
|
|
|
|
|
First quarter
|
|
|
3.74
|
|
|
|
2.95
|
|
Second quarter
|
|
|
4.25
|
|
|
|
2.88
|
|
Third quarter
|
|
|
4.28
|
|
|
|
3.88
|
|
Fourth quarter (through December 7, 2010)
|
|
|
5.24
|
|
|
|
4.05
|
|
The closing sale price for shares of the Class A common
stock on The NASDAQ Global Market on May 7, 2010, the day
of the last trading session before the public announcement of
the initial proposal by Parent to acquire the Company was $3.38
per share. On October 15, 2010, the last full trading day
before the public announcement of the merger agreement, the
closing price per share of the Class A common stock on The
NASDAQ Global Market was $4.10 per share.
On ,
201 , the last trading day for which closing price
information was practicably available prior to the date of the
first mailing of this proxy statement, the closing price per
share of Class A common stock on The NASDAQ Global Market
was $[ ]. Shareholders of Rock of Ages should
obtain a current market quotation for the Class A common
stock before making any decision with respect to the merger.
Rock of Ages last paid a quarterly cash dividend of $.025 per
share of Class A common stock on December 15, 2005 and
does not plan to pay any cash dividends on its common stock in
the foreseeable future. The following limitations apply to the
ability of Rock of Ages to pay dividends:
|
|
|
|
|
Pursuant to the Amended and Restated Financing Agreement, dated
October 24, 2007, by and between The CIT Group/Business
Credit, Inc. and the Company, the Company generally may not, nor
may it permit any of the subsidiary borrowers to, declare or pay
any dividends on its capital stock (other than dividends payable
in its own capital stock).
|
|
|
|
The Companys articles of incorporation provide that no
dividend shall be declared or paid in respect of any common
stock unless the holders of both the Class A common stock
and the Class B common stock receive the same per share
dividend, payable in the same amount and type of consideration,
as if such classes constituted a single class, except that if
any dividend is declared that is payable in shares of, or in
subscription or other rights to acquire shares of, Class A
common stock or Class B common stock, such dividend shall
be declared and paid at the same rate per share with respect to
the Class A common stock and the Class B common stock,
and the dividend payable on shares of Class A common stock
shall be payable only in shares of, or in subscription or other
rights to acquire shares of, Class A common stock and the
dividend payable on shares of Class B common stock shall be
payable only in shares of, or in subscription or other rights to
acquire shares of, Class B common stock.
|
|
|
|
Under the merger agreement, Rock of Ages has agreed not to pay
dividends on its common stock before the effective time of the
merger.
|
106
|
|
|
|
|
The VBCA prohibits distributions to shareholders when the
distributions would (1) render a corporation unable to pay
its debts as they become due in the usual course of business, or
(2) render a corporations total assets less than the
sum of its total liabilities plus the amount that would be
needed to satisfy the preferential rights upon dissolution of
shareholders whose preferential rights are superior to those
receiving the distribution.
|
RECENT
TRANSACTIONS
There have been no transactions in the common stock of Rock of
Ages effected during the last 60 days by the Company,
Parent, Merger Sub or any of their respective directors,
executive officers or managers or by any of the members of the
Swenson Granite Group.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth certain information as of
October 29 (except as otherwise indicated in a footnote)
regarding the beneficial ownership of each class of Rock of Ages
common stock by each director, each person known by Rock of Ages
to own beneficially more than 5% of either class of the
Companys common stock (including any group as
set forth in Section 13(d)(3) of the Exchange Act), each
named executive officer (as defined in Item 402(a)(3) of
Regulation S-K),
and all directors and current executive officers as a group
based upon information furnished by such persons. Except as
indicated in the footnotes, the persons listed have sole voting
and investment power over the shares beneficially owned.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Class A Common Stock(1)
|
|
|
Class B Common Stock(1)
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Number of
|
|
|
Percentage of
|
|
Name and Address
|
|
Shares
|
|
|
Class Outstanding
|
|
|
Shares
|
|
|
Class Outstanding
|
|
|
North Star Investment Management Corp.(2)
|
|
|
739,551
|
|
|
|
15.4
|
%
|
|
|
|
|
|
|
|
|
20 North Wacker Drive,
Suite 1416
Chicago, IL 60606
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kuby Gottlieb Special Value Fund, LP(3)
|
|
|
446,633
|
|
|
|
9.3
|
%
|
|
|
|
|
|
|
|
|
20 North Wacker Drive,
Suite 1416
Chicago, IL 60606
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dimensional Fund Advisors, Inc.(4)
|
|
|
312,531
|
|
|
|
6.5
|
%
|
|
|
|
|
|
|
|
|
Palisades West, Building
One, 6300 Bee Cave Road
Austin, Texas, 78746
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Swenson Granite Group(5)
|
|
|
2,858,494
|
|
|
|
39.4
|
%
|
|
|
2,449,793
|
|
|
|
94.1
|
%
|
c/o Swenson
Granite
Company, LLC
369 North State Street,
Concord, NH 03301
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kevin C. Swenson Revocable Trust of 1994(6)
|
|
|
1,023,489
|
|
|
|
17.5
|
%
|
|
|
1,023,489
|
|
|
|
39.3
|
%
|
47 Straws Point Road
Rye, NH 03870
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert L. Pope and Nancy F. Pope
|
|
|
165,268
|
|
|
|
3.3
|
%
|
|
|
150,268
|
|
|
|
5.8
|
%
|
46 Grand View Farm Road
Barre, VT
05641-8335
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charles M. Waite(7)
|
|
|
15,874
|
|
|
|
*
|
|
|
|
29,126
|
|
|
|
1.1
|
%
|
Kurt M. Swenson Revocable Trust of 2000(8)**
|
|
|
1,135,000
|
|
|
|
19.5
|
%
|
|
|
1,005,000
|
|
|
|
38.6
|
%
|
Richard C. Kimball and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Christina W. Kimball**
|
|
|
72,126
|
|
|
|
1.5
|
%
|
|
|
|
|
|
|
|
|
107
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Class A Common Stock(1)
|
|
|
Class B Common Stock(1)
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Number of
|
|
|
Percentage of
|
|
Name and Address
|
|
Shares
|
|
|
Class Outstanding
|
|
|
Shares
|
|
|
Class Outstanding
|
|
|
James L. Fox**
|
|
|
5,000
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
Frederick E. Webster, Jr.**
|
|
|
5,000
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
Donald Labonte(9)**
|
|
|
52,000
|
|
|
|
1.1
|
%
|
|
|
|
|
|
|
|
|
Pamela G. Sheiffer**
|
|
|
5,000
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
Paul H. Hutchins(10)**
|
|
|
30,200
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
Laura A. Plude(11)**
|
|
|
20,000
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
All directors and executive officers as a group (8 persons)
|
|
|
1,324,326
|
|
|
|
22.8
|
%
|
|
|
|
|
|
|
|
|
|
|
|
**
|
|
Named Executive Officer and/or Director of Rock of Ages; the
business address of each such director and executive officer of
the Company is
c/o Rock
of Ages Corporation, 560 Graniteville Road, Graniteville,
Vermont 05654.
|
|
*
|
|
The amount shown is less than 1% of the outstanding shares of
such class.
|
|
(1)
|
|
Shares of our Class B common stock are convertible on a
share-for-share
basis into shares of our Class A common stock. Therefore,
for each beneficial owner (and directors and executive officers
as a group), (i) the number of shares of Class A
common stock listed includes (or is comprised solely of) the
number of Class A shares owned outright or under
outstanding vested options and a number of shares equal to the
number of shares of Class B common stock, if any, listed as
beneficially owned by such beneficial owner(s) and (ii) the
percentage of Class A common stock listed assumes the
conversion on [date as which outstanding share #s given]
of all shares of Class B common stock, if any, listed as
beneficially owned by such beneficial owner(s) into Class A
Common Stock and also that no other shares of Class B
common stock beneficially owned by others are so converted.
|
|
(2)
|
|
According to a Schedule 13D jointly filed by Northstar
Investment Management Corp. and Kuby Gottlieb Special Value
Fund, LP on October 19, 2010, Northstar Investment
Management Corp, directly controls advisory accounts, which own
739,551 shares of the Companys Class A common
stock. According to this Schedule 13D, Northstar Investment
Management Corp. has sole dispositive power with respect to
these 739,551 shares.
|
|
(3)
|
|
According to a Schedule 13D jointly filed by Northstar
Investment Management Corp. and Kuby Gottlieb Special Value
Fund, LP on October 19, 2010, Kuby Gottlieb Special Value
Fund, LP owns 446,633 shares of the Companys
Class A common stock. According to this Schedule 13D,
Kuby Gottlieb Special Value Fund, LP is affiliated with
Northstar Investment Management Corp.
|
|
(4)
|
|
According to a Schedule 13G filed February 8, 2010,
Dimensional Fund Advisors LP, in its capacity as an
investment advisor or manager, may be deemed to be the
beneficial owner of the listed shares that are held of record by
certain investment companies, trusts or other accounts it
advises or manages.
|
|
(5)
|
|
According to Amendment No. 1 to a Schedule 13D
filed October 20, 2010, the members of the Swenson Granite
Group (as individually listed under PARTIES INVOLVED IN
THE PROPOSED TRANSACTION Swenson Granite Group)
beneficially own 408,701 shares of the Companys
Class A common stock and 2,449,793 shares of the
Companys Class B common stock.
|
|
(6)
|
|
Kevin C. Swenson is the brother of Kurt M. Swenson.
|
|
(7)
|
|
Charles M. Waite retired as a Company board member at the
Companys 2010 annual meeting.
|
|
(8)
|
|
Kurt M. Swenson is the brother of Kevin C. Swenson. Includes
1,005,000 shares of Class B Common Stock and
130,000 shares of Class A Common Stock held by the
Kurt M. Swenson Revocable Trust of 2000. Kurt M. Swenson, as the
sole trustee of the Kurt M. Swenson Revocable Trust of 2000,
beneficially owns such shares.
|
|
(9)
|
|
Includes 49,000 shares of Class A Common Stock subject
to currently exercisable stock options.
|
|
(10)
|
|
Includes 18,000 shares of Class A Common Stock subject
to currently exercisable stock options.
|
108
|
|
|
(11)
|
|
Includes 17,000 shares of Class A Common Stock subject
to currently exercisable stock options.
|
As of October 29, 2010, the members of the Swenson Granite
Group beneficially owned 408,701 shares of Class A
common stock, or approximately 8.5% of the outstanding
Class A common stock, and 2,449,793 shares of
Class B common stock, or approximately 94.1% of the
outstanding Class B common stock.
Kurt Swenson, our non-executive Chairman and the Chairman and a
director of Parent, together with his brother, Kevin C. Swenson,
Vice President and a director of Parent, and Robert Pope,
President and Chief Executive Officer and a director of Parent,
own approximately 31% of all outstanding shares of common stock
of Rock of Ages, and control approximately 71% of the voting
power of all outstanding Rock of Ages shares.
FUTURE
SHAREHOLDER PROPOSALS
If the merger is completed, there will be no public
participation in any future meetings of shareholders of Rock of
Ages. However, if the merger is not completed, Rock of Ages
shareholders will continue to be entitled to attend and
participate in our shareholders meetings. If the merger is
not completed, and thus the Company remains a public reporting
company at the time of its 2011 Annual Meeting of Shareholders,
under the rules and regulations of the Securities and Exchange
Commission, proposals of shareholders intended to be presented
in the Companys proxy statement and forms of proxy for the
Companys 2011 Annual Meeting of Shareholders must be
received by the Company at its principal executive offices, no
later than March 12, 2011 and must otherwise satisfy the
conditions established by the Securities and Exchange Commission
to be considered for inclusion in the Companys proxy
statement and proxy cards for that meeting.
Under our By-Laws, proposals of shareholders intended to be
submitted for a formal vote (other than proposals to be included
in the Companys proxy statement and forms of proxy) at the
Companys 2011 Annual Meeting of Shareholders may be made
only by a shareholder of record who has given notice of the
proposal to the Secretary of the Company which is received at
the Companys principal executive offices no earlier than
April 14, 2011 and not later than May 19, 2011. The
notice must contain certain information as specified in our
By-Laws. If the Company remains subject to the federal proxy
rules at the time of its 2011 Annual Meeting of Shareholders,
any such proposal received after May 19, 2011 will not be
considered timely under the federal proxy rules for
purposes of determining whether the proxies designated by the
Company for such meeting may use discretionary authority to vote
on such proposal.
WHERE YOU
CAN FIND MORE INFORMATION
Rock of Ages files annual, quarterly and current reports, proxy
statements and other documents with the SEC under the Exchange
Act. The Companys SEC filings made electronically through
the SECs EDGAR system are available to the public at the
SECs website at
http://www.sec.gov.
You may also read and copy any document we file with the SEC at
the SECs public reference room located at 450 Fifth
Street, NW, Washington, DC 20549. Please call the SEC at
(800) SEC-0330 for further information on the operation of
the public reference room.
The Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009 filed with SEC
on March 31, 2010, and the Companys Quarterly Report
on
Form 10-Q
for the fiscal quarter ended October 2, 2010 filed with the
SEC on November 16, 2010, are attached as Annexes F
and G, respectively, to, and are incorporated into and
constitute part of, this proxy statement.
Rock of Ages, Parent, Merger Sub and the members of the Swenson
Granite Group have filed with the SEC a
Schedule 13E-3
with respect to the proposed merger. The
Schedule 13E-3,
including any amendments and exhibits filed or incorporated by
reference as a part of it, is available for inspection as set
forth above.
This proxy statement does not constitute an offer to sell, or
a solicitation of an offer to buy, any securities, or the
solicitation of a proxy, in any jurisdiction to or from any
person to whom it is not lawful to make any offer or
solicitation in that jurisdiction. The delivery of this proxy
statement should
109
not create an implication that there has been no change in
the affairs of Rock of Ages since the date of this proxy
statement or that the information herein is correct as of any
later date.
Parent, Merger Sub, Covington and the members of the Swenson
Granite Group have supplied, and Rock of Ages has not
independently verified, the information in this proxy statement
related to Parent, Merger Sub, Covington and the members of the
Swenson Granite Group.
Shareholders should not rely on information other than that
contained or incorporated into this proxy statement, including
the Annexes which constitute part of this proxy statement, and
the other reports we file with the SEC. Rock of Ages has not
authorized anyone to provide information that is different from
that contained in this proxy statement. This proxy statement is
dated ,
2010. No assumption should be made that the information
contained in this proxy statement is accurate as of any date
other than that date, and the mailing of this proxy statement
will not create any implication to the contrary. Notwithstanding
the foregoing, in the event of any material change in any of the
information previously disclosed, Rock of Ages will, where
relevant and if required by applicable law, (1) update such
information through a supplement to this proxy statement and
(2) amend the Transaction Statement on
Schedule 13E-3
filed in connection with the merger, in each case, to the extent
necessary.
110
AGREEMENT
AND PLAN OF MERGER
by and among
SWENSON GRANITE COMPANY LLC,
GRANITE ACQUISITION, LLC
and
ROCK OF AGES CORPORATION
October 18, 2010
TABLE OF
CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE I
DEFINITIONS AND TERMS
|
Section 1.1
|
|
Definitions
|
|
|
A-1
|
|
Section 1.2
|
|
Other Definitional Provisions; Interpretation
|
|
|
A-7
|
|
|
ARTICLE II
THE MERGER
|
Section 2.1
|
|
The Merger
|
|
|
A-7
|
|
Section 2.2
|
|
Closing and Effective Time of the Merger
|
|
|
A-8
|
|
Section 2.3
|
|
Meeting of Shareholders to Approve the Merger
|
|
|
A-8
|
|
|
ARTICLE III
CONVERSION OR OTHER TREATMENT OF EQUITY
|
Section 3.1
|
|
Conversion of Shares
|
|
|
A-9
|
|
Section 3.2
|
|
Exchange of Certificates and Book Entry Shares
|
|
|
A-10
|
|
Section 3.3
|
|
Shares of Dissenting Shareholders
|
|
|
A-11
|
|
Section 3.4
|
|
Treatment of Company Options
|
|
|
A-12
|
|
Section 3.5
|
|
Withholding and Other Taxes
|
|
|
A-12
|
|
|
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
Section 4.1
|
|
Organization; Subsidiaries
|
|
|
A-13
|
|
Section 4.2
|
|
Capitalization
|
|
|
A-13
|
|
Section 4.3
|
|
Authorization; Validity of Agreement; Company Action
|
|
|
A-14
|
|
Section 4.4
|
|
Consents and Approvals; No Violations
|
|
|
A-14
|
|
Section 4.5
|
|
Permits; No Violation of Law
|
|
|
A-14
|
|
Section 4.6
|
|
SEC Reports; Disclosure Controls and Procedures
|
|
|
A-14
|
|
Section 4.7
|
|
Contracts
|
|
|
A-15
|
|
Section 4.8
|
|
No Undisclosed Liabilities
|
|
|
A-15
|
|
Section 4.9
|
|
Employee Benefit Plans; ERISA
|
|
|
A-15
|
|
Section 4.10
|
|
Trademarks
|
|
|
A-17
|
|
Section 4.11
|
|
Litigation
|
|
|
A-17
|
|
Section 4.12
|
|
Environmental
|
|
|
A-17
|
|
Section 4.13
|
|
Labor Matters
|
|
|
A-17
|
|
Section 4.14
|
|
Real Property
|
|
|
A-18
|
|
Section 4.15
|
|
Taxes
|
|
|
A-18
|
|
Section 4.16
|
|
Brokers or Finders
|
|
|
A-20
|
|
Section 4.17
|
|
Vote Required
|
|
|
A-20
|
|
Section 4.18
|
|
Special Committee Adoption and Recommendation; Company Board
Adoption and Recommendation
|
|
|
A-20
|
|
Section 4.19
|
|
Proxy Statement and
Schedule 13E-3
|
|
|
A-20
|
|
Section 4.20
|
|
Opinion of Financial Advisor
|
|
|
A-20
|
|
Section 4.21
|
|
Absence of Certain Changes or Events
|
|
|
A-20
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
|
Section 5.1
|
|
Organization; Capitalization and Ownership of Merger Sub
|
|
|
A-21
|
|
Section 5.2
|
|
Authorization; Validity of Transaction Agreements; Necessary
Action
|
|
|
A-21
|
|
Section 5.3
|
|
Consents and Approvals; No Violations
|
|
|
A-21
|
|
Section 5.4
|
|
Swenson Granite Group
|
|
|
A-22
|
|
Section 5.5
|
|
Disclosure Documents
|
|
|
A-22
|
|
Section 5.6
|
|
Merger Subs Operations
|
|
|
A-22
|
|
Section 5.7
|
|
Financing
|
|
|
A-22
|
|
Section 5.8
|
|
No Knowledge of Breach of Representation or Warranty
|
|
|
A-23
|
|
Section 5.9
|
|
Litigation
|
|
|
A-23
|
|
Section 5.10
|
|
Solvency
|
|
|
A-23
|
|
Section 5.11
|
|
Brokers or Finders
|
|
|
A-23
|
|
|
ARTICLE VI
COVENANTS
|
Section 6.1
|
|
Interim Operations of the Company
|
|
|
A-24
|
|
Section 6.2
|
|
Access to Information
|
|
|
A-24
|
|
Section 6.3
|
|
Acquisition Proposals
|
|
|
A-25
|
|
Section 6.4
|
|
Publicity
|
|
|
A-26
|
|
Section 6.5
|
|
Indemnification and Insurance
|
|
|
A-26
|
|
Section 6.6
|
|
Reasonable Best Efforts; Notification
|
|
|
A-27
|
|
Section 6.7
|
|
Section 16 Matters
|
|
|
A-28
|
|
Section 6.8
|
|
Tax Matters
|
|
|
A-28
|
|
Section 6.9
|
|
Obligations of Merger Sub and the Surviving Company
|
|
|
A-28
|
|
Section 6.10
|
|
Voting of Company Common Stock
|
|
|
A-28
|
|
Section 6.11
|
|
FIRPTA Withholding
|
|
|
A-28
|
|
Section 6.12
|
|
Post-Signing Actions by the Company Board
|
|
|
A-28
|
|
Section 6.13
|
|
Financing; Enforcement of Swenson Contribution Agreements
|
|
|
A-29
|
|
Section 6.14
|
|
Stockholder Litigation
|
|
|
A-29
|
|
Section 6.15
|
|
Supplements to Disclosure Schedule
|
|
|
A-30
|
|
|
ARTICLE VII
CONDITIONS
|
Section 7.1
|
|
Conditions to Each Partys Obligation to Effect the Merger
|
|
|
A-30
|
|
Section 7.2
|
|
Conditions to Obligations of Parent and Merger Sub
|
|
|
A-30
|
|
Section 7.3
|
|
Conditions to Obligation of the Company
|
|
|
A-31
|
|
Section 7.4
|
|
Frustration of Closing Conditions
|
|
|
A-31
|
|
|
ARTICLE VIII
TERMINATION
|
Section 8.1
|
|
Termination
|
|
|
A-31
|
|
Section 8.2
|
|
Notice and Effect of Termination
|
|
|
A-32
|
|
A-ii
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE IX
MISCELLANEOUS
|
Section 9.1
|
|
Amendment and Modification
|
|
|
A-34
|
|
Section 9.2
|
|
Non-Survival of Representations and Warranties
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Section 9.3
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Notices
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Section 9.4
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Interpretation
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Section 9.5
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Counterparts
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Section 9.6
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Entire Agreement; Third-Party Beneficiaries
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Section 9.7
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No Other Representations and Warranties; Prior Investigation
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Section 9.8
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Severability
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Section 9.9
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Governing Law
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Section 9.10
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Jurisdiction
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Section 9.11
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Service of Process
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Section 9.12
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Specific Performance
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A-36
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Section 9.13
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Assignment
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Section 9.14
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Expenses
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Section 9.15
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Headings
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Section 9.16
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Waivers
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Exhibit A
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Form of Voting Agreement
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Exhibit B
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Form of Swenson Contribution Agreement
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Exhibit C
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Members of the Swenson Granite Group and shares of Company
Common Stock subject to a Voting Agreement and/or a Swenson
Contribution Agreement
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A-iii
AGREEMENT
AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of October 18, 2010
(this
Agreement
), by and among Rock of
Ages Corporation, a Vermont corporation (the
Company
), Swenson Granite Company LLC, a
Delaware limited liability company (
Parent
),
and Granite Acquisition, LLC, a Vermont limited liability
company wholly owned by Parent (
Merger Sub
).
WHEREAS, upon the terms and subject to the conditions set forth
in this Agreement, Merger Sub shall be merged with and into the
Company, with the Company continuing as the Surviving Company
(the
Merger
), in accordance with the Vermont
Business Corporation Act, as amended (the
VBCA
), and Chapter 21 of
Title 11 of the Vermont Statutes Annotated, as amended
(together with the VBCA, the
Vermont Laws
),
with each issued and outstanding share of (a) Class A
common stock, no par value, of the Company (the
Company
Class A Common Stock
), and (b) Class B
common stock, no par value, of the Company (the
Company
Class B Common Stock
, and together with the
Company Class A Common Stock, the
Company Common
Stock
), in each case, other than (a) shares of
Company Common Stock to be cancelled in accordance with
Section 3.1(a)(iii) and (b) Dissenting Shares, to be
converted into the right to receive the Merger
Consideration; and
WHEREAS, a Special Committee of the Company Board (as defined
herein) comprised exclusively of Qualified Directors (as defined
herein) with respect to this Agreement and the Merger (the
Special Committee
) has unanimously,
and, based in part on the recommendation of the Special
Committee, the board of directors of the Company (the
Company Board
) has unanimously
(a) determined that the Merger is fair to and in the best
interests of the Companys shareholders (other than the
Swenson Contributing Shareholders (as defined herein)),
(b) adopted this Agreement and (c) recommended
approval of this Agreement by the Companys shareholders
(the
Company Board
Recommendation
); and
WHEREAS, (a) the board of directors of Parent has adopted
and approved this Agreement and the Merger, (b) the
shareholders of Parent have approved this Agreement and the
Merger and (c) Parent, in its capacity as the sole member
of Merger Sub, has adopted this Agreement; and
WHEREAS, contemporaneously with the execution of this Agreement,
as a condition to and as an inducement to each of the parties
hereto to enter into this Agreement, the members of the Swenson
Granite Group (as defined herein) have each entered into a
voting agreement, dated as of the date hereof, with Parent in
the form attached hereto as
Exhibit A
(each such
agreement, a
Voting Agreement
), pursuant to
which, among other things, each member of the Swenson Granite
Group has agreed, subject to the terms and conditions set forth
therein, to vote or cause to be voted all shares of Company
Common Stock as to which such member is entitled to vote or
instruct the vote in favor of approval of this Agreement;
NOW, THEREFORE, in consideration of the premises, and the
representations, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
AND TERMS
Section
1.1
Definitions
.
As
used in this Agreement, the following terms have the meanings
set forth below:
Acquisition Agreement
has the
meaning set forth in Section 6.3(b).
Acquisition Proposal
means any offer
or proposal made by any Person or Persons other than Parent,
Merger Sub or any Affiliate thereof to acquire, other than as
contemplated by this Agreement, (a) beneficial ownership
(as defined under Section 13(d) of the Exchange Act) of
more than 50% of the outstanding Company Common Stock pursuant
to a merger, consolidation or other business combination, sale
of shares of capital stock, tender offer or exchange offer or
similar transaction involving the Company or (b) more than
50% of the assets of the Company and its Subsidiaries, taken as
a whole.
A-1
Affiliate
means, with respect to a
Person, any Person that, directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under
common control with, such Person;
provided
that, except
as expressly stated herein, for purposes of this Agreement
neither Parent nor Merger Sub shall be considered an Affiliate
of the Company and the Company shall not be considered an
Affiliate of Parent or Merger Sub.
Agreement
has the meaning set forth in
the Preamble.
Articles of Merger
has the meaning set
forth in Section 2.2.
Benefit Agreements
means all material
employment and severance agreements with employees of the
Company or any of its Subsidiaries to which the Company or any
such Subsidiary is a party.
Benefit Plans
means all and any
benefit plans, programs, arrangements or practices, including
plans described in section 3(3) of ERISA (but shall not
include any multi-employer plan within the meaning
of Sections 3(37) or 4001(a)(3) of ERISA) that provide
pension, retirement, profit sharing, bonus, incentive, deferred
compensation, severance, welfare, health, life insurance,
disability, death, medical, dental, vision, sickness, vacation,
stock option, stock-based compensation or similar benefits
sponsored by the Company or any of its Subsidiaries or
maintained for the benefit of any current or former employee,
officer or director of the Company or any of its Subsidiaries.
Book Entry Shares
has the meaning set
forth in Section 3.1(a)(iv).
Business Day
means a day other than a
Saturday, a Sunday or another day on which commercial banking
institutions in New York, New York are authorized or required by
Law to be closed.
CERCLA
means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. sec. 9601 et seq.
Certificates
has the meaning set forth
in Section 3.1(a)(iv).
Change of Recommendation
has the
meaning set forth in Section 6.3(b).
Closing Date
has the meaning set forth
in Section 2.2.
Closing
has the meaning set forth in
Section 2.2.
Code
means the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
Company
has the meaning set forth in
the Preamble.
Company Board
has the meaning set
forth in the Recitals.
Company Board Recommendation
has the
meaning set forth in the Recitals.
Company Bylaws
means the By-Laws of
the Company as currently in effect, as the same may be amended
from time to time.
Company Charter
means the Articles of
Incorporation of the Company as currently in effect, as the same
may be amended from time to time.
Company Class A Common Stock
has
the meaning set forth in the Recitals.
Company Class B Common Stock
has
the meaning set forth in the Recitals.
Company Common Shareholder Approval
has the meaning set forth in Section 4.17.
Company Common Stock
has the meaning
set forth in the Recitals.
Company Equity Plans
means the Rock of
Ages Corporation Amended and Restated 1994 Stock Plan and
the Rock of Ages Corporation 2005 Stock Plan, each as
amended to date.
Company Expenses
has the meaning set
forth in Section 8.2(b).
A-2
Company Options
has the meaning set
forth in Section 3.4.
Company SEC Reports
has the meaning
set forth in Section 4.6.
Confidentiality Agreement
means that
certain Agreement, dated May 14, 2010, by and between the
Company and Parent.
Consideration Fund
has the meaning set
forth in Section 3.2(a).
Contract
means any note, bond,
mortgage, indenture, lease, license, contract, agreement or
other consensual obligation.
Disclosure Document
means the Proxy
Statement, the
Schedule 13E-3
and each other document required to be filed by the Company or
with the SEC or required to be distributed or otherwise
disseminated to the Companys shareholders in connection
with the Merger.
Disclosure Schedule
means the
disclosure schedule, delivered by the Company to Parent
immediately prior to the execution of this Agreement, which
qualifies the representations and warranties of the Company set
forth in ARTICLE IV of this Agreement or the interim
operating covenants of the Company set forth in Section 6.1.
Dissenting Shares
has the meaning set
forth in Section 3.3(a).
Effective Time
has the meaning set
forth in Section 2.2.
End Date
has the meaning set forth in
Section 8.1(b).
Environmental Laws
means all
applicable Laws relating to the protection of the environmental
and/or
governing the use, storage, treatment, generation,
transportation, processing, handling, production or disposal of
Hazardous Substances.
ERISA
means the Employee Retirement
Income Security Act of 1974, as amended.
Exchange Act
means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Filed Company SEC Reports
has the
meaning set forth in ARTICLE IV.
Financing
has the meaning set forth in
Section 5.7.
Financing Agreements
has the meaning
set forth in Section 5.7.
Financing Documents
has the meaning
set forth in Section 5.7.
Financing Letter
has the meaning set
forth in Section 5.7.
GAAP
has the meaning set forth in
Section 4.6.
Governmental Entity
means the
government of the United States or of any other nation, or any
political subdivision of the United States or any such other
nation, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, or other entity
exercising executive, legislation, judicial, taxing, regulatory
or administrative powers or functions of such government or
political subdivision.
Hazardous Substance
means, without
limitation, any flammable materials, explosives, radon,
radioactive materials, volatile organic compounds, asbestos,
urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum and petroleum products, methane, or other hazardous or
toxic substances or related materials, as defined in CERCLA, the
Hazardous Materials Transportation Act, RCRA or any other
applicable Environmental Laws.
Hazardous Waste
means all waste
materials subject to regulation under CERCLA, RCRA or applicable
state law, and any other applicable Federal and state laws now
in force or hereafter enacted relating to hazardous waste
disposal.
Indemnified Party
has the meaning set
forth in Section 6.5(a).
A-3
Inspector of Elections
means the
Person designated by the Company to tabulate and report the vote
at the Special Meeting.
Insured Parties
has the meaning set
forth in Section 6.5(c).
IRS
means the United States Internal
Revenue Service.
July 3, 2010 Balance Sheet
has
the meaning set forth in Section 4.8.
Knowledge
means such facts and other
information that as of the date of determination are actually
known to the President and Chief Executive Officer, Chief
Financial Officer and Vice President Finance, or the
Vice President Administration, or executives or
other officers serving analogous functions, of the referenced
party.
Law
means any federal, state, local or
foreign law, statute, rule, regulation, final and enforceable
ordinance or Order of any Governmental Entity.
Lenders
has the meaning set forth in
Section 5.7.
Majority of the Minority Approval
means the affirmative vote in favor of approval of this
Agreement of a majority of the outstanding shares of Company
Class A Common Stock, not including (in the number of
outstanding shares of Company Class A Common Stock or in
the number of shares of Company Class A Common Stock voted
in favor of this Agreement) shares of Company Class A
Common Stock owned directly or through a broker or other nominee
by members of Parent as certified by Parent to the Company
pursuant to Section 6.10(b).
Marks
has the meaning set forth in
Section 4.10.
Material Adverse Effect
means any
event, change, effect, development, state of facts, condition,
circumstance or occurrence that (alone or in combination) is
materially adverse to the business, assets, liabilities,
condition (financial or otherwise) or results of operations of
the Company and its Subsidiaries, taken as a whole; but
excluding any such event, change, effect, development, state of
facts, condition, circumstance or occurrence (alone or in
combination) resulting from, arising out of or connection with
(a) changes in the financial markets or economic or
political condition generally in the United States or the global
economic or political condition, to the extent the Company and
its Subsidiaries, taken as a whole, are not adversely affected
in a disproportionate manner relative to other participants in
the industry in which they operate, (b) general national,
regional or international economic, financial, political or
business conditions affecting generally the industries and
markets in which the Company and its Subsidiaries operate, to
the extent the Company and its Subsidiaries, taken as a whole,
are not adversely affected in a disproportionate manner relative
to other participants in the industry in which they operate,
(c) the execution, delivery or performance of this
Agreement, the announcement of this Agreement, the identity of
Parent or Merger Sub or the pendency or consummation of the
Merger or the other transactions contemplated hereby (including
any cancellation of or delays in work for customers, any
reductions in sales, any disruption in supplier, contractor,
subcontractor or similar relationships or any loss of employees
or consultants resulting primarily from such execution, delivery
or performance of this Agreement, such announcement of this
Agreement, such identity of Parent or Merger Sub or such
pendency or consummation of the Merger or the other transactions
contemplated hereby), (d) natural disasters, acts of war,
terrorism or sabotage, military actions or the escalation
thereof, (e) changes in GAAP or other applicable accounting
rules or applicable Law (including the accounting rules and
regulations of the SEC), or, in any such case, changes in the
interpretation thereof, (f) any action required by Law,
contemplated by this Agreement or taken at the request of Parent
or Merger Sub, (g) any litigation brought or threatened by
any shareholder(s) of either Parent or the Company (whether on
behalf of the Company, Parent or otherwise) alleging a breach of
fiduciary duty relating to this Agreement or the Merger or the
other transactions contemplated hereby or violations of
securities Laws in connection with the Disclosure Documents or
otherwise in connection with this Agreement (other than any
Order in such litigation which awards damages against the
Company or for which the Company has an indemnification
obligation, in either case, to the extent not reimbursable to
the Company pursuant to the Companys
A-4
directors and officers liability insurance policy, it being
understood for the avoidance of doubt that the exclusion of some
or all of any damage award from this clause (g) shall not
create an assumption or implication that such damage award
constitutes a Material Adverse Effect), (h) any action
required to comply with the rules and regulations of the SEC or
the SEC comment process, in each case, in connection with any
Disclosure Document, (i) in and of itself, any change in
the market price or trading volume of the Company Common Stock
or the Companys credit rating, (j) in and of itself,
any failure by the Company to meet any estimates, projections,
forecasts or revenue or earnings predictions, or any predictions
or expectations of the Company or of any securities analysts (it
being understood that this clause (j) shall not prevent
Parent from asserting that any event, change, effect,
development, state of facts, condition, circumstance or
occurrence that may have contributed to such failure
independently constitutes or contributes to a Material Adverse
Effect), (k) the failure of Parent to consent to any of the
actions proscribed in Section 6.1 where such failure to
consent would be unreasonable or (l) any matter described
or referred to in the Filed Company SEC Reports (provided that
the relevance of the disclosure of any such matter is reasonably
apparent from the text of such disclosure) or expressly and
specifically (in sufficient detail such that the significance
and materiality thereof is readily apparent) described or
referred to in the Disclosure Schedule.
Material Contract
means any Contract
in effect as of the date hereof which is required to be filed by
the Company with the SEC as a material Contract pursuant to
Item 601(b)(10) of
Regulation S-K
promulgated by the SEC.
Merger
has the meaning set forth in
the Recitals.
Merger Consideration
has the meaning
set forth in Section 3.1(a)(i).
Merger Sub
has the meaning set forth
in the Preamble.
Multi-Employer Plan
has the meaning
given in ERISA Section 3(37)(A).
Option Cash-Out Payments
has the
meaning set forth in Section 3.4.
Order
means, with respect to any
Person, any order, temporary restraining order, preliminary
injunction, injunction, judgment, decree or ruling enacted,
adopted, promulgated or applied by a Governmental Entity or
arbitrator that is binding upon or applicable to such Person or
its property.
Parent
has the meaning set forth in
the Preamble.
Parent Expenses
has the meaning set
forth in Section 8.2(c).
Paying Agent
has the meaning set forth
in Section 3.2(a).
PBGC
has the meaning set forth in
Section 4.9(c).
Permit
has the meaning set forth in
Section 4.5.
Person
means any natural person or any
corporation, partnership, limited liability company,
association, trust or other entity or organization, including
any Governmental Entity.
Proxy Statement
has the meaning set
forth in Section 2.3(b).
Qualified Directors
means
qualified directors within the meaning of
Section 8.62 of the VBCA.
Representatives
has the meaning set
forth in Section 6.2.
Required Funding Amount
has the
meaning set forth in Section 5.7.
RCRA
means the Resource Conservation
and Recovery Act, 42 U.S.C. sec. 6901 et seq., as the same
may be amended from time to time.
SEC
means the United States Securities
and Exchange Commission.
Schedule 13E-3
has the meaning set forth in Section 2.3(c).
A-5
Shareholder Approvals
means the
Company Common Shareholder Approval and the Majority of the
Minority Approval.
Solvent
when used with respect to any
Person, means that, as of any date of determination,
(a) the amount of the fair saleable value of
the assets of such Person will, as of such date, exceed
(i) the value of all liabilities of such Person,
including contingent and other liabilities, as of such
date, as such quoted terms are generally determined in
accordance with applicable federal laws governing determinations
of the insolvency of debtors and (ii) the amount that will
be required to pay the probable liabilities of such Person on
its existing debts (including contingent liabilities) as such
debts become absolute and matured, (b) such Person will not
have, as of such date, an unreasonably small amount of capital
for the operation of the businesses in which it is engaged or
proposed to be engaged following such date and (c) such
Person will be able to pay its liabilities, including contingent
and other liabilities, as they mature.
Special Committee
has the meaning set
forth in the Recitals.
Special Meeting
has the meaning set
forth in Section 2.3(a).
Subsidiary
means, as to any Person,
any corporation, partnership, limited liability company,
association, trust or other entity or organization of which such
Person directly or indirectly owns securities or other equity
interests representing more than 50% of the total outstanding
common equity interests or more than 50% of the aggregate voting
power of all outstanding securities or other equity interests
entitled to vote for the election of directors or Persons
holding similar positions.
Superior Proposal
means an Acquisition
Proposal that the Company Board determines, based upon the
recommendation, and with the concurrence by a vote, of a
majority of the members of the Special Committee or of the
Qualified Directors with respect to such Acquisition Proposal
after consultation by the Special Committee or such Qualified
Directors with outside counsel and financial advisors (and
taking into account any changes to the terms and conditions of
this Agreement proposed by Parent to the Company in response to
such Acquisition Proposal), to be (a) more favorable to the
Company and its shareholders than the Merger, and
(b) reasonably capable of being completed within a
reasonable period of time on the terms set forth therein,
including by obtaining any financing contemplated thereby.
Surviving Company
has the meaning set
forth in Section 2.1(a).
Swenson Contributing Shareholders
means each member of the Swenson Granite Group who is a party to
a Swenson Contribution Agreement.
Swenson Contribution Agreement
means
the binding agreements, in the form attached hereto as
Exhibit B
, entered into by and between Parent and
certain members of the Swenson Granite Group pursuant to which
each such member of the Swenson Granite Group has agreed to
contribute to Parent some or all of the shares of Company Common
Stock beneficially owned by such Person as of immediately prior
to the Effective Time in exchange for shares of membership
interest in Parent.
Swenson Granite Group
means the
holders of shares of Company Common Stock set forth on
Exhibit C
hereto who (a) beneficially own and
have the right to vote, or to instruct the vote with respect to,
the number of shares of Company Class A Common Stock and
Company Class B Common Stock set forth opposite their
respective names on such
Exhibit B
and (b) have
entered into a Voting Agreement.
Tax Returns
means all federal, state,
local and foreign tax returns, declarations, statements,
reports, schedules, forms and information returns and any
amendments thereto relating to Taxes.
Taxes
means all federal, state, local
and foreign income, profits, franchise, gross receipts,
environmental, customs duty, capital stock, severances, stamp,
payroll, sales, employment, unemployment, disability, use,
property, withholding, excise, production, value added,
occupancy, Transfer Taxes, and other taxes, duties or
assessments of any nature whatsoever, together with all
interest, penalties and
A-6
additions imposed with respect to such amounts and any interest
in respect of such penalties and additions.
Termination Fee
has the meaning set
forth in Section 8.2(e).
Transaction Agreements
means,
collectively, this Agreement, the Voting Agreements and the
Swenson Contribution Agreements.
Transfer Tax
means all transfer, real
property transfer, stock transfer, documentary, sales, use,
stamp, registration and other similar Taxes (including penalties
and interest).
United States
means the United States
of America.
VBCA
has the meaning set forth in the
recitals.
Vermont Laws
has the meaning set forth
in the recitals.
Voting Agreement
has the meaning set
forth in the Recitals.
Section
1.2
Other
Definitional Provisions; Interpretation
.
The
words hereof, herein and words of
similar import shall, unless otherwise stated, be construed to
refer to this Agreement as a whole and not to any particular
provision of this Agreement, and references to articles,
sections, paragraphs, exhibits and schedules are to the
articles, sections and paragraphs of, and exhibits and schedules
to, this Agreement, unless otherwise specified.
Whenever include, includes or
including is used in this Agreement, such word shall
be deemed to be followed by the phrase without
limitation.
Words describing the singular number shall be deemed to include
the plural and vice versa, words denoting any gender shall be
deemed to include all genders and words denoting natural persons
shall be deemed to include business entities and vice versa.
Terms defined in the text of this Agreement as having a
particular meaning have such meaning throughout this Agreement,
except as otherwise indicated in this Agreement.
ARTICLE II
THE
MERGER
Section
2.1
The
Merger
.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, and in accordance with applicable provisions
of the Vermont Laws, at the Effective Time, Merger Sub shall be
merged with and into the Company. As a result of the Merger, the
separate limited liability company existence of Merger Sub shall
cease, and the Company shall continue as the surviving
corporation of the Merger (the
Surviving
Company
). The Merger shall have the effects set forth
in the applicable provisions of the Vermont Laws. Without
limiting the generality of the foregoing, at the Effective Time,
all of the property, rights, privileges, immunities, powers and
franchises of Merger Sub shall vest in the Surviving Company,
and all of the debts, liabilities and duties of Merger Sub shall
become the debts, liabilities and duties of the Surviving
Company.
(b) The Company Charter and the Company Bylaws, in each
case as in effect immediately prior to the Effective Time, shall
be the articles of incorporation and bylaws, respectively, of
the Surviving Company, until thereafter changed or amended as
provided therein or by applicable Law.
(c) The managers of Merger Sub immediately prior to the
Effective Time shall, from and after the Effective Time, be the
initial directors of the Surviving Company, each to hold office
in accordance with the articles of incorporation and bylaws of
the Surviving Company until their respective successors shall
have been duly elected or appointed and qualified, or until
their earlier death, resignation or removal. The officers of the
Company immediately prior to the Effective Time, shall, from and
after the Effective Time, continue as the officers of the
Surviving Company, each to hold office in accordance with the
articles of incorporation and
A-7
bylaws of the Surviving Company until their respective
successors shall have been duly elected or appointed and
qualified, or until their earlier death, resignation or removal.
(d) If at any time after the Effective Time the Surviving
Company shall determine, in its sole discretion, or shall be
advised, that any deeds, bills of sale, instruments of
conveyance, assignments, assurances or any other actions or
things are necessary or desirable to vest, perfect or confirm of
record or otherwise in the Surviving Company its right, title or
interest in, to or under any of the rights, properties or assets
of either of the Company or Merger Sub acquired or to be
acquired by the Surviving Company as a result of, or in
connection with, the Merger, then the officers and directors of
the Surviving Company shall be authorized to execute and
deliver, in the name and on behalf of either the Company or
Merger Sub, all such deeds, bills of sale, instruments of
conveyance, assignments and assurances and to take and do, in
the name and on behalf of each of such corporations or
otherwise, all such other actions and things as may be necessary
or desirable to vest, perfect or confirm any and all right,
title or interest in, to and under such rights, properties or
assets in the Surviving Company or otherwise to carry out this
Agreement.
Section
2.2
Closing
and Effective Time of the Merger
.
The closing
of the Merger (the
Closing
) shall take place
at 10:00 a.m. (Eastern time) on the second Business Day
after satisfaction or waiver of all of the conditions set forth
in ARTICLE VII (the date on which the Closing occurs being
referred to as the
Closing Date
), other than
those conditions that by their nature are to be satisfied at the
Closing, but subject to the satisfaction or waiver of those
conditions at the Closing, at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP, One Beacon Street, Boston,
Massachusetts 02108, unless another time, date or place is
agreed to in writing by the parties hereto. On the Closing Date,
Parent, Merger Sub and the Company shall cause appropriate
articles of merger (the
Articles of Merger
)
to be executed and filed with the Secretary of State of the
State of Vermont in accordance with the relevant provisions of
the Vermont Laws and shall make any other filings or recordings
required under the Vermont Laws to effect the Merger. The Merger
shall become effective at the time the Articles of Merger shall
have been duly filed with the Secretary of State of the State of
Vermont or such later date and time as is agreed upon by the
parties and specified in the Articles of Merger (such date and
time, the
Effective Time
).
Section
2.3
Meeting
of Shareholders to Approve the Merger
.
(a) The Company shall, in accordance with applicable Law,
the Company Charter and the Company Bylaws, duly call, give
notice of, convene and hold a special meeting of the
Companys shareholders (including any adjournment or
postponement thereof, the
Special Meeting
) as
promptly as reasonably practicable after the SEC confirms
(either expressly or through the lapse of time) that it has no
comments or no further comments, as the case may be, with
respect to the Proxy Statement, for the purpose of considering
and voting on approval of this Agreement;
provided
,
however
, that the Company may postpone or adjourn the
Special Meeting solely to the extent the Special Committee or a
majority of (but not less than two) Qualified Directors with
respect to such determination, or the Company Board based upon
the recommendation of the Special Committee or such Qualified
Directors, determines in good faith, after consultation with
outside counsel, that the Company has received a Superior
Proposal. Subject to Section 6.3, the Company Board, based
in part on the recommendation of the Special Committee, shall
recommend that the holders of the Company Common Stock approve
this Agreement, and shall use reasonable best efforts to solicit
proxies in favor of approval of this Agreement.
(b) As promptly as reasonably practicable after the date
hereof, the Company shall, in accordance with applicable Law,
the Company Charter and the Company Bylaws, prepare and file
with the SEC in preliminary form a proxy statement relating to
this Agreement and the Merger (such proxy statement, as amended
or supplemented, the
Proxy Statement
), and
furnish the information required to be provided to the
shareholders of the Company pursuant to the VBCA and the
Exchange Act. Parent and Merger Sub shall, as promptly as
reasonably practicable after the date hereof, furnish the
Company with any information that may be required in order to
effectuate the preparation and filing of the Proxy Statement
pursuant to this Section 2.3(b). The Company will notify
Parent promptly upon the receipt of and provide a copy to Parent
of any comments from the SEC or its staff with respect to the
Proxy Statement, or any amendments or supplements thereto.
Whenever the Company becomes aware of any event that is required
to be set forth in an amendment or supplement to
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the Proxy Statement, the Company will promptly inform Parent of
such occurrence and will file as soon as reasonably practicable
with the SEC or its staff, and mail to shareholders of the
Company, such amendment or supplement, as and to the extent
required by applicable Law. The Company shall provide Parent
(and its counsel) with a reasonable opportunity to review and
comment on the Proxy Statement, and any amendment or supplement
thereto, prior to filing such with the SEC, and will provide
Parent with a copy of all such filings made with the SEC. The
Proxy Statement shall, subject to Section 6.3(c), include
the Company Board Recommendation.
(c) Parent, Merger Sub, the Company and any required
Affiliates thereof shall jointly prepare and, concurrently with
the Companys filing with the SEC of a preliminary form of
the Proxy Statement, file with the SEC the
Rule 13e-3
Transaction Statement on
Schedule 13E-3
relating to the Transactions (such Transaction Statement, as
amended or supplemented, the
Schedule 13E-3
).
Parent, Merger Sub, the Company and any required Affiliates
thereof shall furnish to each other all information concerning
such party as may be reasonably requested by the other parties
in connection with the preparation of the
Schedule 13E-3.
Parent, Merger Sub, the Company and any required Affiliates
thereof shall, as promptly as reasonably practicable after the
date hereof, furnish the other parties hereto with any
information that may be required in order to effectuate the
preparation and filing of the
Schedule 13E-3
pursuant to this Section 2.3(c). Each of Parent and the
Company will notify the other party promptly upon the receipt of
and provide a copy to the other party of any comments from the
SEC or its staff with respect to the
Schedule 13E-3,
or any amendments or supplements thereto. Whenever the Company
or Parent becomes aware of any event that is required to be set
forth in an amendment or supplement to the
Schedule 13E-3,
the Company or Parent, as the case may be, will promptly inform
Parent of such occurrence and will file as soon as reasonably
practicable with the SEC or its staff, and mail to shareholders
of the Company, such amendment or supplement, as and to the
extent required by applicable Law. Neither the Company nor
Parent shall file the
Schedule 13E-3
or any amendment or supplement thereto without prior consent
from the other party.
(d) If at any time prior to the Special Meeting any fact or
event relating to Parent or Merger Sub or any member, officer or
director of Parent or Merger Sub that should be set forth in an
amendment or supplement to the Proxy Statement or
Schedule 13E-3
should occur or be discovered by Parent or Merger Sub, Parent or
Merger Sub shall, promptly after becoming aware thereof, inform
the Company of such fact or event. If at any time prior to the
Special Meeting any fact or event relating to the Company or any
officer, director or shareholder of the Company (in each case,
other than members of the Swenson Granite Group) that should be
set forth in an amendment or supplement to the
Schedule 13E-3
should occur or be discovered by the Company, the Company shall,
promptly after becoming aware thereof, inform Parent of such
fact or event.
(e) At the Special Meeting, each of Parent and Merger Sub
shall vote, or cause to be voted, all of the shares of Company
Common Stock as to which it is entitled to vote or direct the
vote in favor of approval of this Agreement, and Parent shall
deliver or provide (or cause to be delivered or provided), in
its capacity as a shareholder of the Company to the extent
applicable, any other approvals that are required by applicable
Law to effect the Merger.
ARTICLE III
CONVERSION
OR OTHER TREATMENT OF EQUITY
Section
3.1
Conversion
of Shares
.
(a) At the Effective Time:
(i) Except as otherwise provided in
Section 3.1(a)(iii) and Section 3.4, each share of
Company Common Stock issued and outstanding immediately prior to
the Effective Time (other than shares of Company Common Stock to
be cancelled pursuant to Section 3.1(a)(iii) and Dissenting
Shares) shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into the right to
receive an amount in cash, payable to the holder thereof,
without any interest thereon, equal to $5.25, subject to any
withholding of Taxes required by applicable Law in accordance
with Section 3.5 (the
Merger
Consideration
).
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(ii) The limited liability company interests of Merger Sub
issued and outstanding immediately prior to the Effective Time
shall be converted into and become one validly issued, fully
paid and non-assessable share of Company Class B Common
Stock.
(iii) All shares of Company Common Stock that, immediately
prior to the Effective Time, are held in the Companys
treasury or are held by Parent, Merger Sub or any other direct
or indirect wholly owned Subsidiary of Parent shall be cancelled
and shall cease to exist, and no consideration shall be
delivered in exchange therefor.
(iv) Each share of Company Common Stock converted into the
right to receive the Merger Consideration pursuant to
Section 3.1(a)(i) shall be automatically cancelled and
shall cease to exist, and the holders immediately prior to the
Effective Time of shares of outstanding Company Common Stock not
represented by certificates (
Book Entry
Shares
) and the holders of certificates that,
immediately prior to the Effective Time, represented shares of
outstanding Company Common Stock (the
Certificates
) shall cease to have any rights
with respect to such shares of Company Common Stock other than
the right to receive, upon transfer of such Book Entry Shares or
delivery of such Certificates in accordance with
Section 3.2, the Merger Consideration, without any interest
thereon, for each such share of Company Common Stock held by
them immediately prior to the Effective Time.
(b) If at any time between the date hereof and the
Effective Time any change in the number of outstanding shares of
Company Common Stock shall occur as a result of a
reclassification, recapitalization, stock split (including a
reverse stock split), or combination, exchange or readjustment
of shares, or any stock dividend or stock distribution with a
record date during such period, the amount of the Merger
Consideration as provided in Section 3.1(a)(i) shall be
equitably adjusted to reflect such change.
Section
3.2
Exchange
of Certificates and Book Entry Shares
.
(a) Prior to the Effective Time, Parent shall
(i) select a bank or trust company, reasonably satisfactory
to the Company, to act as the paying agent in the Merger (the
Paying Agent
) and (ii) enter into a
paying agent agreement with the Paying Agent, the terms and
conditions of which shall be reasonably satisfactory to the
Company.
(b) At or prior to the Closing, Parent shall deliver (or
cause to be delivered), in trust, to the Paying Agent, for the
benefit of the holders of shares of Company Common Stock at the
Effective Time, sufficient funds for timely payment of the
aggregate Merger Consideration (such cash hereinafter referred
to as the
Consideration Fund
). In the event
the Consideration Fund shall be insufficient to pay the
aggregate Merger Consideration contemplated by Section 3.1
(including with respect to former Dissenting Shares held by
shareholders of the Company who shall have failed to perfect or
who shall have effectively withdrawn or lost their rights to
appraisal of such Dissenting Shares under Chapter 13 of the
VBCA), Parent shall promptly deliver, or cause to be delivered,
additional funds to the Paying Agent in an amount that is equal
to the deficiency required to make such payments.
(c) Promptly after the Effective Time (and in any event
within five Business Days after the Effective Time), Parent
shall cause the Paying Agent to mail to each holder of record of
Certificates or Book Entry Shares whose shares were converted
into the right to receive Merger Consideration pursuant to
Section 3.1: (i) a letter of transmittal, in customary
form, that shall specify that delivery of such Certificates or
transfer of such Book Entry Shares shall be deemed to have
occurred, and risk of loss and title to the Certificates or Book
Entry Shares, as applicable, shall pass, only upon proper
delivery of the Certificates (or affidavits of loss in lieu
thereof) or transfer of the Book Entry Shares to the Paying
Agent and (ii) instructions for use in effecting the
surrender of the Certificates or transfer of the Book Entry
Shares in exchange for payment of the Merger Consideration, the
form and substance of which letter of transmittal and
instructions shall be substantially as reasonably agreed to by
the Company and Parent and prepared prior to the Closing. Upon
receipt of an agents message by the Paying
Agent in connection with the transfer of a Book Entry Share or
surrender of a Certificate for cancellation to the Paying Agent,
in each case together with such letter of transmittal, duly
executed and completed in accordance with the instructions
thereto, and with such other documents as may be required
pursuant to such instructions, the holder of such Book Entry
Share or Certificate shall be entitled to receive in exchange
therefor,
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subject to any required withholding of Taxes, the Merger
Consideration pursuant to the provisions of this
ARTICLE III, and the Book Entry Share so transferred or
Certificate so surrendered shall forthwith be cancelled. No
interest will be paid to holders of Book Entry Shares or
Certificates in connection with, or accrued on, the Merger
Consideration. If any Merger Consideration is to be paid to a
Person other than a Person in whose name the Book Entry Share
transferred or Certificate surrendered in exchange therefor is
registered, it shall be a condition of such exchange that the
Person requesting such exchange shall pay to the Paying Agent
any transfer or other Taxes required by reason of payment of the
Merger Consideration to a Person other than the registered
holder of the Book Entry Share transferred or Certificate
surrendered, or shall establish to the reasonable satisfaction
of the Paying Agent that such Tax has been paid or is not
applicable.
(d) The Consideration Fund shall be invested by the Paying
Agent as directed by Parent;
provided
,
however
,
that any such investments shall be in short-term obligations of
the United States government or guaranteed by the United States
government and backed by the full faith and credit of the United
States government. Earnings on the Consideration Fund in excess
of the amounts payable to the Company shareholders shall be the
sole and exclusive property of Parent and shall be paid to
Parent or the Surviving Company, as Parent directs. No
investment of the Consideration Fund shall relieve Parent, the
Surviving Company or the Paying Agent from promptly making the
payments required by this ARTICLE III, and following any
losses from any such investment, Parent shall promptly provide
additional cash funds to the Paying Agent for the benefit of the
holders of shares of Company Common Stock at the Effective Time
in the amount of such losses, which additional funds will be
deemed to be part of the Consideration Fund.
(e) At and after the Effective Time, there shall be no
transfers on the stock transfer books of the Company of the
shares of Company Common Stock that were outstanding immediately
prior to the Effective Time. If, after the Effective Time,
Certificates or Book Entry Shares are presented to the Surviving
Company or the Paying Agent for any reason, they shall be
cancelled and exchanged for the Merger Consideration pursuant to
this ARTICLE III, except as otherwise provided by Law.
(f) Any portion of the Consideration Fund (including the
proceeds of any investments thereof) that remains unclaimed by
the former shareholders of the Company one year after the
Effective Time shall be delivered, upon demand, to the Surviving
Company. Any holders of Certificates or Book Entry Shares who
have not theretofore complied with this ARTICLE III with
respect to such Certificates or Book Entry Shares shall
thereafter look only to the Surviving Company for payment of
their claim for Merger Consideration in respect thereof.
(g) Notwithstanding the foregoing, neither the Paying
Agent, Parent, the Surviving Company nor any other party hereto
shall be liable to any Person in respect of cash from the
Consideration Fund delivered to a public official pursuant to
any applicable abandoned property, escheat or similar Law. If
any Certificate or Book Entry Share shall not have been
surrendered or transferred prior to the date which is five
(5) years after the Effective Time, the Merger
Consideration in respect of such Certificate or Book Entry Share
shall, to the extent permitted by applicable Law, become the
property of the Surviving Company, and any holder of such
Certificate or Book Entry Share who has not theretofore complied
with this ARTICLE III with respect thereto shall thereafter
look only to the Surviving Company for payment of their claim
for Merger Consideration in respect thereof.
(h) If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact (such
affidavit shall be in a form reasonably satisfactory to Parent
and the Paying Agent) by the Person claiming such Certificate to
be lost, stolen or destroyed, the Paying Agent shall issue in
exchange for such lost, stolen or destroyed Certificate the
Merger Consideration to which such Person is entitled in respect
of such Certificate pursuant to this ARTICLE III.
Section
3.3
Shares
of Dissenting Shareholders
.
(a) Notwithstanding anything in this Agreement to the
contrary, other than as provided in Section 3.3(b), in the
event that appraisal rights shall be available for shares of
Company Common Stock pursuant to the provisions of the VBCA, any
shares of Company Common Stock that are issued and outstanding
immediately prior to the Effective Time and held by a
shareholder who, in accordance with Section 13.21 of the
VBCA,
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has not voted in favor of the Merger or consented thereto in
writing and who has properly delivered to the Company written
notice of such shareholders intent to assert
dissenters rights and demand payment for his or her shares
if the Merger is effectuated (the
Dissenting
Shares
) shall not be converted into the right to
receive the Merger Consideration, but shall instead be entitled
only to such rights with respect to such Dissenting Shares as
may be granted to such shareholder under the VBCA. From and
after the Effective Time, Dissenting Shares shall not be
entitled to vote for any purpose or be entitled to the payment
of dividends or other distributions (except dividends or other
distributions payable to shareholders of record prior to the
Effective Time). The Company shall promptly provide any notices
of dissent to Parent, and Parent shall have the right to
participate in all negotiations and proceedings with respect to
each such dissent. Except with the prior written consent of
Parent, the Company shall not make any payment with respect to
any Dissenting Shares, or offer to settle or settle, the
dissenters rights claims of any shareholder with respect
to the Merger.
(b) If any shareholder who holds Dissenting Shares
withdraws or loses (through failure to perfect or otherwise)
such shareholders right to obtain payment of the fair
value of such shareholders Dissenting Shares under the
VBCA, then, as of the later of the Effective Time and the
occurrence of such withdrawal or loss, such shareholders
shares of Company Common Stock shall no longer be Dissenting
Shares and, if the occurrence of such withdrawal or loss is
later than the Effective Time, shall be treated as if they had
as of the Effective Time been converted into the right to
receive Merger Consideration, without interest, as set forth in
Section 3.1(a)(i).
Section
3.4
Treatment
of Company Options
.
Prior to the Effective
Time, the Company shall cause each outstanding option to
purchase shares of Company Class A Common Stock (each, a
Company Option
) under either Company Equity
Plan to become fully vested and exercisable. At the Effective
Time, each Company Option outstanding as of immediately prior to
the Effective Time shall be cancelled and the holder thereof
shall be entitled to receive with respect to such Company Option
only a cash payment from the Surviving Company with respect to
the Company Option equal to the product obtained by multiplying
(a) the excess, if any, of the Merger Consideration over
the exercise price per share of such Company Option, by
(b) the number of shares of Company Common Stock issuable
upon exercise of such Company Option (the aggregate of such cash
payments, the
Option Cash-Out Payments
).
Company Options which have an exercise price per share equal to
or greater than the Merger Consideration shall be cancelled as
of the Effective Time without the payment of any consideration.
Parent and the Surviving Company shall cause, and the Company
(and the Surviving Company) shall make appropriate arrangements
with the Paying Agent, the Companys (and the Surviving
Companys) payroll provider
and/or
any
other Person as may be necessary to allow, the lump sum cash
payments required pursuant to this Section 3.4 to be paid
within five Business Days from the date upon which the Effective
Time occurs.
Section
3.5
Withholding
and Other Taxes
.
Each of the Surviving
Company and Parent shall deduct or withhold from the
consideration payable to any Person pursuant to this
ARTICLE III such amounts required to be deducted or
withheld with respect to such payment under applicable Tax Law.
If the Surviving Company or Parent, as the case may be, so
withholds amounts, such amounts shall be treated for all
purposes of this Agreement as having been paid to the Person in
respect of which the Surviving Company or Parent, as the case
may be, made such deduction or withholding.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except as disclosed in (a) the reports and other documents
filed with, or furnished to, the SEC by the Company and publicly
available prior to the date hereof (excluding any risk factor
disclosures contained under the heading Risk
Factors, and any disclosure of risks included in any
forward-looking statements disclaimer)
(collectively, the
Filed Company SEC Reports
)
(provided that any disclosure in such Filed Company SEC Reports
shall be deemed to qualify a representation or warranty only if
the relevance of such disclosure to such representation or
warranty is reasonably apparent from the text of such disclosure
and provided further that the disclosures in the Filed Company
SEC Reports shall not be deemed to qualify any representations
or warranties made in Section 4.2)
and/or
(b) the Disclosure Schedule (such Disclosure
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Schedule shall be arranged in numbered and lettered sections
corresponding to the numbered and lettered sections contained in
this ARTICLE IV and the disclosure of any item in any
section or subsection of the Disclosure Schedule shall be deemed
to qualify or apply to other sections in this ARTICLE IV to
the extent that the relevance of such disclosure to such other
section or subsection in this ARTICLE IV is reasonably
apparent from the text of such disclosure), the Company
represents and warrants to Parent and Merger Sub as follows:
Section
4.1
Organization;
Subsidiaries
.
(a) Each of the Company and its Subsidiaries is a
corporation or other entity duly organized and validly existing
under the laws of the jurisdiction of its incorporation or
organization and has the requisite entity power and authority to
own, lease and operate its properties and to carry on its
business as it is now being conducted. Each of the Company and
its Subsidiaries is duly qualified or licensed to do business
and is in good standing in each jurisdiction in which the nature
of the business conducted by it makes such qualification or
licensing necessary, except where the failure to be so duly
qualified or licensed or in good standing would not have a
Material Adverse Effect. The Company has made available to
Parent correct and complete copies of the Company Charter and
Company Bylaws, each as in effect on the date hereof.
(b) Schedule 4.1(b) sets forth a complete and correct
list of all Subsidiaries of the Company. Neither the Company nor
any of its Subsidiaries owns any capital stock of, or any equity
interest of any nature in, any other corporation, limited
liability company, partnership, joint venture or other business
entity, except for the Subsidiaries listed on
Schedule 4.1(b) and except for passive investments as part
of its cash management program.
(c) During the last five years prior to the date hereof,
neither the Company nor any of its Subsidiaries has conducted
business or sold inventory by any name other than its current
name. Neither the Company nor any of its Subsidiaries has been a
party to a merger or consolidation or acquired all or
substantially all of the assets of any Person during the five
years prior to the date of this Agreement.
Section
4.2
Capitalization
.
(a) The authorized capital stock of the Company consists of
(i) 30,000,000 shares of Company Class A Common
Stock of which 4,812,342 are issued and outstanding as of the
date hereof, (ii) 15,000,000 shares of Company
Class B Common Stock of which 2,603,721 are issued and
outstanding as of the date hereof and
(iii) 2,500,000 shares of preferred stock, no par
value, none of which are issued or outstanding as of the date
hereof. All of the outstanding shares of the Companys
capital stock are duly authorized, validly issued, fully paid,
non-assessable and free of preemptive rights. As of the date
hereof, 314,000 shares of Class A Common Stock are
subject to outstanding Company Options under the Company Equity
Plans. Other than the Company Options specified in the preceding
sentence and issued pursuant to the Company Equity Plans, there
are no existing (i) options, warrants, calls,
subscriptions, restricted shares or other rights, convertible
securities, agreements or commitments obligating the Company or
any of its Subsidiaries to issue, transfer or sell any shares of
capital stock or other equity interest in, the Company or any of
its Subsidiaries, (ii) contractual obligations of the
Company or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any capital stock of the Company or any of its
Subsidiaries or (iii) voting trusts or similar agreements
to which the Company or any of its Subsidiaries is a party with
respect to the voting of the capital stock or other equity
interests of the Company or any of its Subsidiaries.
(b) Schedule 4.2(b) sets forth the following
information with respect to each outstanding Company Option:
(i) the name of the optionee; (ii) the number of
shares of Company Class A Common Stock subject to such
Company Option; (iii) the exercise price per share of
Company Class A Common Stock of such Company Option; and
(iii) the date on which such Company Option expires.
(c) All of the outstanding shares of capital stock or other
equity interests of each of the Companys Subsidiaries are
owned of record and beneficially, directly or indirectly, by the
Company free and clear of all liens, pledges, security interests
or other encumbrances.
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Section
4.3
Authorization;
Validity of Agreement; Company Action
.
The
Company has the requisite corporate power and authority to
execute, deliver and perform this Agreement and, subject to
obtaining the Shareholder Approvals, to consummate the Merger.
The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the Merger have
been duly authorized by the Company Board and the Special
Committee and, except (with respect to such consummation) for
the Shareholder Approvals, no other corporate action on the part
of the Company is necessary to authorize the execution and
delivery by the Company of this Agreement and the consummation
by it of the Merger. This Agreement has been duly executed and
delivered by the Company and, assuming the due and valid
authorization, execution and delivery hereof by Parent and
Merger Sub, is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar Laws, now or hereafter
in effect, affecting creditors rights and remedies
generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
Section
4.4
Consents
and Approvals; No Violations
.
The execution
and delivery of this Agreement by the Company do not, and the
performance by the Company of this Agreement and the
consummation by the Company of the Merger will not,
(a) violate any provision of the Company Charter or the
Company Bylaws, (b) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both)
a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms,
conditions or provisions of any Contract to which the Company or
any of its Subsidiaries is a party or by which any of them or
any of their properties or assets is bound, (c) violate any
Law applicable to the Company, any of its Subsidiaries or any of
their respective properties or assets or (d) other than in
connection or compliance with applicable requirements of federal
securities Laws or the Vermont Laws, require the Company to make
any filing or registration with or notification to, or require
the Company to obtain any authorization, consent or approval of,
any Governmental Entity; except, in the case of clauses (b),
(c) and (d), for such violations, breaches or defaults
that, or filings, registrations, notifications, authorizations,
consents or approvals the failure of which to make or obtain,
(i) would not, individually or in the aggregate, be
materially adverse to the Company and its Subsidiaries, taken as
a whole or (ii) would occur or be required as a result of
the business or activities in which Parent or Merger Sub is or
proposes to be engaged or as a result of any acts or omissions
by, or the regulatory or other status of, or any facts
specifically pertaining to, Parent or Merger Sub.
Section
4.5
Permits;
No Violation of Law
.
The Company and its
Subsidiaries have all material permits, licenses, variances,
exemptions, authorizations, orders and approvals from all
Governmental Entities necessary for them to own, lease or
operate their properties and assets and to carry on their
business and operations as currently conducted
(
Permits
) and are in compliance in all
material respects with the terms and conditions of such Permits.
Schedule 4.5 sets forth a correct and complete list of all
such material Permits held by the Company and its Subsidiaries
as of the date hereof. All such Permits are in full force and
effect, and to the Knowledge of the Company, none of such
Permits will be subject to revocation, withdrawal, suspension,
termination or modification as a result of the execution and
delivery of this Agreement or the consummation of the Merger.
Neither the Company nor any of its Subsidiaries is in violation
of any applicable Law in any respect which would reasonably be
expected to have a Material Adverse Effect.
Section
4.6
SEC
Reports; Disclosure Controls and Procedures
.
(a) The Company has filed all reports and other documents
(including material contracts and other exhibits) with the SEC
required to be filed by the Company since January 1, 2010
(as such reports and other documents may have been amended or
superseded through the date hereof, the
Company SEC
Reports
). As of their respective filing dates (or, if
amended or superseded by a filing prior to the date hereof, as
of the date of such filing), the Company SEC Reports
(i) complied in all material respects with, to the extent
in effect at the time of filing (or, if amended or superseded by
a filing prior to the date hereof, as of the date of such
filing), the applicable requirements of the Exchange Act and
(ii) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. Each of the
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financial statements (including the related notes) of the
Company included in the Company SEC Reports complied at the time
filed (or, if amended or superseded by a filing prior to the
date hereof, as of the date of such filing) as to form in all
material respects with the applicable accounting requirements
and the published rules and regulations of the SEC with respect
thereto in effect at the time of such filing (or, if amended or
superseded by a filing prior to the date hereof, as of the date
of such filing), was prepared in accordance with generally
accepted accounting principles in the United States
(
GAAP
) (except, in the case of unaudited
statements, as permitted by the rules and regulations of the
SEC) applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto) and fairly
presented in all material respects the consolidated financial
position of the Company and its consolidated Subsidiaries as of
the respective dates thereof and the consolidated results of
their operations, shareholders equity and cash flows for
the respective periods then ended (subject, in the case of
unaudited statements, to normal year-end adjustments).
(b) The unaudited consolidated balance sheet of the Company
and its consolidated Subsidiaries as of October 2, 2010 and
the unaudited consolidated statement of operations of the
Company and its consolidated Subsidiaries as of, and for the
three and nine month periods ended, October 2, 2010, each
as provided to Parent, have been prepared in accordance with
GAAP (except as permitted by the rules and regulations of the
SEC) applied on a consistent basis during the period involved
(except as may be indicated in the notes thereto) and fairly
present in all material respects the consolidated financial
position and the consolidated results of their operations of the
Company and its consolidated Subsidiaries as of, and for the
three and nine month periods ended, October 2, 2010.
(c) Since January 1, 2010, there has been no change in
the Companys accounting policies or the methods of making
accounting estimates or changes in estimates that are material
to the Companys financial statements, except as may be
required by any Governmental Entity or change in applicable Law
or accounting rules and regulations. The accounting books and
records of the Company and its Subsidiaries with respect to
transactions entered into by the Company or its Subsidiaries
since January 1, 2008 are true and complete in all material
respects, have been maintained in accordance with sound business
practices and accurately present and reflect in all material
respects all such transactions.
Section
4.7
Contracts
.
All
Material Contracts required to be filed as exhibits to the
Company SEC Reports have been filed with the SEC. To the
Knowledge of the Company, all Material Contracts are valid,
binding and in full force and effect. Neither the Company nor
any applicable Company Subsidiary is in breach of or default in
any material respect under any such Material Contracts, and to
the Knowledge of the Company, no other party to such Material
Contracts is in breach or default in any material respect
thereunder.
Section
4.8
No
Undisclosed Liabilities
.
Neither the Company
nor any of its Subsidiaries has, since July 3, 2010 through
the date hereof, incurred any liabilities or obligations that
would be required to be reflected or reserved against in a
consolidated balance sheet of the Company and its consolidated
Subsidiaries prepared in accordance with GAAP as applied in
preparing the consolidated balance sheet of the Company and its
consolidated Subsidiaries included in the Companys
Quarterly Report on
Form 10-Q
for the fiscal quarter ended July 3, 2010 (the
July 3, 2010 Balance Sheet
) that are not
so reflected or reserved against in the July 3, 2010
Balance Sheet, except for (a) liabilities and obligations
incurred in the ordinary course of business since July 3,
2010, (b) liabilities and obligations incurred in
connection with the Merger or otherwise as contemplated by this
Agreement or (c) liabilities and obligations that would
not, individually or in the aggregate, be materially adverse to
the Company and its Subsidiaries, taken as a whole.
Section
4.9
Employee
Benefit Plans; ERISA
(a) Schedule 4.9(a) sets forth a correct and complete
list, as of the date of this Agreement, of all Benefit Plans and
Benefit Agreements. The terms of the Benefit Plans are in
compliance with, and such Benefit Plans have been administered
in accordance with, the requirements of ERISA, the Code and
other applicable Law, in each case, in all material respects.
The Company and its Subsidiaries have performed in all material
respects all of their respective obligations under all Benefit
Plans and Benefit Agreements, and have made appropriate entries
in their financial records.
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(b) Each Benefit Plan intended to be qualified under
Section 401(a) of the Code, and the trust (if any) forming
a part thereof, has received a favorable determination letter
from the IRS as to its qualification under the Code and to the
effect that each such trust is exempt from taxation under
Section 501(a) of the Code, and to the Knowledge of the
Company nothing has occurred since the date of such
determination letter that would adversely affect such
qualification or tax-exempt status.
(c) All material reports and information required to be
filed with, or provided to, the United States Department of
Labor, IRS, Pension Benefit Guaranty Corporation
(
PBGC
), the SEC and Benefit Plan participants
and beneficiaries with respect to each Benefit Plan have been
timely filed or provided.
(d) No Benefit Plan which is subject to Title IV of
ERISA has been terminated or partially terminated or has been
the subject of a reportable event, as defined in
Section 4043 of ERISA within the three year period prior to
the date hereof.
(e) No proceedings by the PBGC to terminate pursuant to
Title IV of ERISA any Benefit Plan have been instituted. No
liability under Title IV of ERISA has been incurred by the
Company or any of its Subsidiaries with respect to any Benefit
Plan, except for the insurance premiums required to be made to
the PBGC, all of which have been paid as required.
(f) To the Knowledge of the Company, there are not now nor
have there ever been any prohibited transactions, as
such term is defined in Section 4975 of the Code or
Section 406 of ERISA, involving the Company or any of its
Subsidiaries with respect to the Benefit Plans that could
reasonably be expected to subject the Company or one of its
Subsidiaries or their directors, officers, employees or agents
to any material penalty or tax imposed under Section 502(i)
of ERISA or Section 4975 of the Code; or any threatened,
asserted or instituted claims, lawsuits, arbitrations or other
actions by or on behalf of such Benefit Plans or by any employee
alleging a breach of fiduciary duty or violations of ERISA or
other applicable Law with respect to such Benefit Plans, which
could reasonably be expected to result in any material liability
on the part of the Company or any of its Subsidiaries, a Benefit
Plan or the assets of any such plan under ERISA or any other Law.
(g) As of the most recent valuation date for each Employee
Pension Benefit Plan, the benefit liabilities within the meaning
of Section 4001(a)(16) of ERISA (as computed by the
actuaries for such plan using the actuarial assumptions
acceptable under ERISA and reasonable in the aggregate in effect
for such purpose as of such valuation date) of all participants
and former participants in such plans did not exceed the fair
market value of the assets of such Benefit Plan.
(h) Neither the Company nor any of its Subsidiaries has
withdrawn from any Multi-Employer Plan with respect to which
there is any outstanding liability from the Company or any of
its Subsidiaries as of the date of this Agreement. No event has
occurred or circumstance exists that presents a risk of the
occurrence of any withdrawal from, or, to the Knowledge of the
Company, the termination, reorganization or insolvency of, any
Multi-Employer Plan that could result in any liability of the
Company and its Subsidiaries.
(i) To the Knowledge of the Company, no Multi-Employer Plan
to which the Company or any of its Subsidiaries contributes or
has contributed is a party to any pending merger or asset or
liability transfer or is subject to any proceeding brought by
the PBGC.
(j) Except to the extent required under ERISA
Section 601 et seq. and Section 4980B of the Code and
as disclosed in the Filed Company SEC Reports, neither the
Company nor any of its Subsidiaries provides health or welfare
benefits for any retired or former employees, their spouses or
dependents or is obligated to provide health or welfare benefits
to any active employee, their spouses and dependents following
such employees retirement or other termination of service.
(k) No payment that is owed or may become due to any
director, officer, employee or agent of the Company or any of
its Subsidiaries will be non-deductible or subject to tax under
Section 280G or 4999 of the Code in connection with the
Merger; nor will the Company or any of its Subsidiaries be
required to gross up or otherwise compensate any
such person because of the imposition of any excise tax on a
payment to such person.
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(l) Except as contemplated in Section 3.4, the Merger
and the transactions contemplated in connection therewith will
not result in, or accelerate the vesting in or time of payment
of, compensation or benefits due any director, officer, employee
or agent of the Company or any of its Subsidiaries.
(m) Neither the provisions of the Benefit Plans and Benefit
Agreements nor the manner in which the Benefit Plans and Benefit
Agreements have been administered, have given rise to any excise
tax liability under Section 409A of the Code.
Section
4.10
Trademarks
.
Schedule 4.10
contains a complete and accurate list and summary description of
all trade names, registered trademarks, service marks and
applications for the same that are owned by the Company or any
of its Subsidiaries as of the date hereof
(
Marks
). The Company or one of its
Subsidiaries is the owner of all right, title and interest in
and to each of the Marks, free and clear of all levies, security
interests, charges, encumbrances, equities and other adverse
claims. All Marks that have been registered with the United
States Patent and Trademark Office are, as of the date hereof,
currently in compliance in all material respects with all
applicable formal legal requirements, valid and enforceable,
and, to the Knowledge of the Company, as of the date hereof are
not subject to any opposition, invalidation or cancellation. To
the Knowledge of the Company, as of the date hereof, no Mark is
infringed or has been challenged or threatened in writing in any
way.
Section
4.11
Litigation
.
As
of the date hereof, there is no action, claim, suit, proceeding
or governmental investigation pending or, to the Knowledge of
the Company, threatened in writing, against the Company or any
of its Subsidiaries that would reasonably be expected to have a
Material Adverse Effect. As of the date hereof, there is no
Order outstanding against the Company or any of its Subsidiaries
that would reasonably be expected to have a Material Adverse
Effect.
Section
4.12
Environmental
.
The
Company and its Subsidiaries are in compliance in all material
respects with all applicable Environmental Laws and except as
would not be materially adverse to the Company and its
Subsidiaries, taken as a whole, have not placed or permitted to
be placed any Hazardous Substances on any of their properties
except as permitted by applicable Environmental Laws. To the
Knowledge of the Company, the Company and its Subsidiaries have
disposed of all Hazardous Waste generated by its operations only
at facilities and with carriers that maintain valid permits
under RCRA and any other applicable Environmental Laws. Neither
the Company nor any of its Subsidiaries (a) has received
any written notice with respect to the business of, or
properties owned or leased by, the Company or any of its
Subsidiaries from any Governmental Entity or third party that
remains outstanding alleging that the Company or any of its
Subsidiaries is a potentially responsible party or is not in
compliance with any Environmental Laws and (b) has caused
any release of a Hazardous Substance in excess of a
reportable quantity on any property that is used for the
business of the Company or any of its Subsidiaries, which
release remains unresolved. The representations and warranties
contained in this Section 4.12 constitute the sole and
exclusive representations and warranties made by the Company
concerning environmental matters.
Section
4.13
Labor
Matters
.
(a) As of the date hereof: (i) there are no pending
or, to the Knowledge of the Company, threatened strikes,
lockouts or work stoppages involving the employees of the
Company or any of its Subsidiaries; and (ii) neither the
Company nor any of its Subsidiaries is a party to, or bound by,
any collective bargaining agreement with a labor union with
respect to its employees. Except as would not reasonably be
expected to be materially adverse to the Company and its
Subsidiaries, taken as a whole, since September 30, 2005
(i) neither the Company nor any of its Subsidiaries has
engaged in any unfair labor practice or violation of state or
local labor wage and hour or other applicable employment laws,
and (ii) there is no unfair labor practice complaint or
grievance pending or, to the Knowledge of the Company,
threatened in writing against the Company or any of its
Subsidiaries.
(b) To the Knowledge of the Company, since
September 30, 2005 the Companys inventory has been
produced in accordance in all material respects with the Federal
Fair Labor Standards Act of 1938, as amended, and the rules,
regulations and orders thereunder.
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(c) To the Knowledge of the Company, since
September 30, 2005 the Company and its Subsidiaries have
complied in all material respects, and their facilities,
business, assets, property, leaseholds and equipment are in
compliance in all material respects, with the provisions of the
Federal Occupational Safety and Health Act and, as of the date
hereof, are not the subject of any outstanding citations,
notices or orders of non-compliance issued thereunder.
Section
4.14
Real
Property
.
The Company or one or more of its
Subsidiaries have valid title to, or valid leasehold or sublease
interests in or relating to, the real properties disclosed by
the Company in its Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009 filed by the
Company with the SEC as being owned or leased by the Company or
its Subsidiaries.
Section
4.15
Taxes
.
(a) All material Tax Returns due to have been filed by the
Company or any of its Subsidiaries through the date hereof in
accordance in all material respects with all applicable Laws
(pursuant to an extension of time or otherwise) have been duly
filed and are true, correct and complete in all material
respects. All Taxes shown as owing by the Company and its
Subsidiaries on such Tax Returns have been paid in full or are
accrued as liabilities for Taxes on the books and records of the
Company and any of its Subsidiaries. The amounts so paid,
together with all amounts accrued as liabilities for Taxes
(including Taxes accrued as currently payable but excluding any
accrual to reflect timing differences between book and Tax
income) on the books of the Company or any of its Subsidiaries
through the date hereof, are adequate based on the applicable
tax rates and applicable Laws to satisfy all liabilities for
Taxes of the Company and any of its Subsidiaries in any
jurisdiction as of the date hereof, including Taxes accruable
upon income earned as of the date hereof.
(b) As of the date hereof, there are not now any extensions
of time in effect with respect to the dates on which any
material Tax Returns were or are due to be filed by the Company
or any of its Subsidiaries.
(c) Since January 1, 2007 through the date hereof,
(i) all material Tax deficiencies asserted as a result of
any examination by a Governmental Entity of a Tax Return of the
Company or any of its Subsidiaries have been paid in full,
accrued on the books of the Company or any of its Subsidiaries
or finally settled, and (ii) no issue has been raised in
any such examination that, by application of the same or similar
principles, reasonably would be expected to result in a material
proposed Tax deficiency for any other period not so examined.
(d) Since January 1, 2007 through the date hereof,
(i) no claims have been asserted and no proposals or
deficiencies for any Taxes of the Company or any of its
Subsidiaries are being asserted, proposed or, to the Knowledge
of the Company, threatened, and (ii) no audit or
investigation of any Tax Return of the Company or any of its
Subsidiaries is currently underway, pending or, to the Knowledge
of the Company, threatened.
(e) Since January 1, 2007 through the date hereof, no
claim in writing has been made against the Company or any of its
Subsidiaries by any Governmental Entity in a jurisdiction where
the Company or any of its Subsidiaries does not file Tax Returns
asserting that the Company or any of its Subsidiaries is or may
be subject to taxation in such jurisdiction.
(f) Since January 1, 2007, the Company and each of its
Subsidiaries has withheld and paid all material Taxes required
to have been paid by it in connection with amounts paid or owing
to any employee, director, consultants, creditor or equity
holder thereof or other third party.
(g) There are no outstanding waivers or agreements between
any Governmental Entity and the Company or any of its
Subsidiaries for the extension of time for the assessment of any
Taxes or deficiency thereof, nor are there any requests for
rulings, outstanding subpoenas or requests for information,
notice of proposed reassessment of any property owned or leased
by the Company or any of its Subsidiaries or any other matter
pending between the Company or any of its Subsidiaries and any
Governmental Entity.
A-18
(h) As of the date hereof, there are no liens currently
outstanding for Taxes with respect to the Company or any of its
Subsidiaries or the assets or properties of the Company or any
of its Subsidiaries, nor is there any such lien that is pending
or, to the Knowledge of the Company, threatened.
(i) Neither the Company or any of its Subsidiaries is a
party to or bound by any Tax allocation or sharing agreement.
(j) Since January 1, 2007, neither the Company or any
of its Subsidiaries has been a member of an affiliated
group of corporations (within the meaning of Code
§ 1504) filing a consolidated federal income tax
return (other than a group the common parent of which was the
Company).
(k) To the Knowledge of the Company, neither the Company
nor any of its Subsidiaries has any liability for the Taxes of
any Person (other than for itself) under Treasury
Regulation Section 1.1502-6
(or any similar provision of state, local or foreign Law), as a
transferee or successor, by contract or otherwise.
(l) None of the Tax Returns described in
Section 4.15(a) contains any position which is or would be
subject to material penalties under Section 6662 of the
Code (or any similar provision of provincial, state, local or
foreign Law) and the Treasury Regulations issued thereunder.
(m) Since January 1, 2007 though the date hereof,
neither the Company nor any of its Subsidiaries has made any
payments or is currently obligated to make any payments that
will not be deductible under Section 280G of the Code (or
any similar provision of provincial, state, local or foreign
Law).
(n) Since January 1, 2007, the Company and each of its
Subsidiaries have at all times been in compliance in all
material respects with the provisions of Section 6011, 6111
and 6112 of the Code relating to tax shelter disclosure,
registration and list maintenance and with the Treasury
Regulations thereunder.
(o) Since January 1, 2007, (i) neither the
Company nor any of its Subsidiaries has engaged in or entered
into a listed transaction within the meaning of
Treasury
Regulation Sections 1.6011-4(b)(2),
301.6111-2(b)(2) or 301.6112-1(b)(2)(A), (ii) no IRS
Form 8886 has been filed with respect to the Company or any
of its Subsidiaries and (iii) neither the Company nor any
of its Subsidiaries has entered into any tax shelter or listed
transaction with the sole purpose of the avoidance or reduction
of a Tax liability with respect to which there is a significant
risk of challenge of such transaction by a Governmental Entity.
(p) Neither the Company nor any of its Subsidiaries will be
required to include any material item of income in, or exclude
any material item of deduction from, taxable income for any Tax
period after the Effective Time as a result of (i) any
change in method of accounting for a Tax period ending on or
prior to the Effective Time; (ii) any closing
agreement as described in Section 7121 of the Code
(or any corresponding or similar provision of state, local or
foreign income Tax law) executed on or prior to the Effective
Time; (iii) any installment sale or open transaction
disposition made on or prior to the Effective Time;
(iv) any prepaid amount received on or prior to the
Effective Time; or (v) the completed contract method of
accounting, the long-term contract method of accounting, the
cash method of accounting, Section 481 of the Code,
Section 108(i) of the Code, or any intercompany transaction
or excess loss account under Section 1502 of the Code and
the Treasury Regulations promulgated thereunder, or comparable
provisions of state, local or foreign Tax law.
(q) Since January 1, 2007, neither the Company nor any
of its Subsidiaries has distributed stock of another Person, or,
to the Knowledge of the Company, has had its stock distributed
by another Person, in a transaction that was purported or
intended to be governed in whole or in part by Code
§ 355 or Code § 361.
(r) The Company is not a United States real property
holding corporation as defined in Section 897(c)(2)
of the Code.
(s) Since January 1, 2005, the Company has operated
all nonqualified deferred compensation plans (within the meaning
of Section 409A of the Code) in good faith compliance with
Section 409A of the Code, and applicable guidance issued
thereunder. All such nonqualified deferred compensation plans
are listed in Schedule 4.15(s).
A-19
Section
4.16
Brokers
or Finders
.
No investment banker, broker,
finder, financial advisor or intermediary, other than Covington
Associates, LLC, the fees and expenses of which will be paid by
the Company, is entitled to any investment banking, brokerage,
finders or similar fee or commission in connection with
this Agreement or the Merger based upon arrangements made by or
on behalf of the Company or any of its Subsidiaries.
Section
4.17
Vote
Required
.
Without limitation of and subject
to the Majority of the Minority Approval required by
Section 7.1(a), the affirmative vote in favor of approval
of this Agreement of the holders of shares of Company Common
Stock representing a majority of the votes entitled to be cast
by all outstanding shares of Company Common Stock, voting
together as a single class (the
Company Common
Shareholder Approval
), is the only vote and approval
of the Companys shareholders required under the VBCA to
approve this Agreement.
Section
4.18
Special
Committee Adoption and Recommendation; Company Board Adoption
and Recommendation
.
The Special Committee, by
resolutions duly adopted at a meeting duly called and held on or
prior to the date hereof, which resolutions, subject to
Section 6.3, have not been subsequently rescinded, modified
or withdrawn, unanimously (a) determined that the Merger is
fair to and in the best interests of the Companys
shareholders (other than the Swenson Contributing Shareholders),
(b) adopted this Agreement and (c) recommended that
the Company Board adopt this Agreement. The Company Board, based
in part on the recommendation of the Special Committee, by
resolutions duly adopted at a meeting duly called and held on or
prior to the date hereof, which resolutions, subject to
Section 6.3, have not been subsequently rescinded, modified
or withdrawn, unanimously (a) determined that the Merger is
advisable and fair to and in the best interests of the
Companys shareholders (other than the Swenson Contributing
Shareholders), (b) adopted this Agreement and
(c) recommended approval of this Agreement to the
Companys shareholders.
Section
4.19
Proxy
Statement and
Schedule 13E-3
.
(a) The Proxy Statement and
Schedule 13E-3
when filed, distributed or disseminated, as applicable, shall
comply as to form in all material respects with the applicable
requirements of the Exchange Act.
(b) The Proxy Statement, as supplemented or amended, if
applicable, at the time such Proxy Statement or any amendment or
supplement thereto is first mailed to shareholders of the
Company and at the time of the Special Meeting will not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were
made, not misleading. The
Schedule 13E-3,
as supplemented or amended, if applicable, at the time such
Schedule 13E-3
or any amendment or supplement thereto is filed with the SEC
will not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under
which they were made, not misleading.
(c) The representations and warranties contained in this
Section 4.19 will not be deemed to relate to statements or
omissions in the Proxy Statement or
Schedule 13E-3
based upon information furnished or caused to be furnished to
the Company in writing by Parent, Merger Sub or any Affiliate
thereof specifically for use therein.
Section
4.20
Opinion
of Financial Advisor
.
Covington Associates,
LLC has delivered to the Special Committee and the Company Board
its written opinion, dated as of the date hereof, that as of
such date, the Merger Consideration to be received by the
Companys shareholders in the Merger is fair, from a
financial point of view, to such holders, a complete copy of
which opinion has been made available to Parent.
Section
4.21
Absence
of Certain Changes or Events
.
Since
July 3, 2010 through the date hereof, there has not
occurred any event, change, effect, development, state of facts,
condition, circumstance or occurrence that has had a Material
Adverse Effect.
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ARTICLE V
REPRESENTATIONS
AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub jointly and severally represent and
warrant to the Company as follows:
Section
5.1
Organization;
Capitalization and Ownership of Merger
Sub
.
Each of Parent and Merger Sub is a
limited liability company duly organized and validly existing
under the laws of the jurisdiction of organization and has the
requisite limited liability company power and authority to own,
lease and operate its properties and to carry on its business as
it is now being conducted. Each of Parent and Merger Sub is duly
qualified or licensed to do business and in good standing in
each jurisdiction in which the nature of the business conducted
by it makes such qualification or licensing necessary, except
where the failure to be so duly qualified or licensed and in
good standing would not, individually or in the aggregate,
reasonably be expected to prevent or materially impair or delay
the ability of Parent or Merger Sub to perform their respective
obligations under this Agreement, of Parent to enforce its
rights and the obligations of members of the Swenson Granite
Group under the Voting Agreements or the Swenson Contributing
Shareholders under the Swenson Contribution Agreements or of
Merger Sub to consummate the Merger. Parent has made available
to the Company a copy of the respective certificates of
formation and limited liability company agreements of Parent and
Merger Sub, as currently in effect. Parent is the holder of all
the issued and outstanding limited liability company interests
of Merger Sub.
Section
5.2
Authorization;
Validity of Transaction Agreements; Necessary
Action
.
Each of Parent and Merger Sub has the
requisite limited liability company power and authority to
execute, deliver and perform its obligations under each
Transaction Agreement to which it is a party and to consummate
the transactions contemplated thereby, including the Financing
and the Merger. The execution, delivery and performance by
Parent and Merger Sub of each Transaction Agreement to which it
is a party, and the consummation by Parent and Merger Sub of the
transactions contemplated thereby, including the Financing and
the Merger, have been duly and validly authorized by all
necessary limited liability company or other action of Parent
and Merger Sub, and no other limited liability company or other
action on the part of Parent or Merger Sub or their respective
shareholders or members is necessary to authorize the execution,
delivery and performance by Parent and Merger Sub of each
Transaction Agreement to which it is a party, and the
consummation by Parent and Merger Sub of the transactions
contemplated thereby, including the Financing and the Merger.
The holders of shares of membership interests in Parent have
approved this Agreement and the Merger. Each of Parent and
Merger Sub has duly executed and delivered each Transaction
Agreement to which it is a party and, assuming the due and valid
authorization, execution and delivery of the Transaction
Agreements by the other parties thereto, each Transaction
Agreement to which it is a party is a valid and binding
obligation of each of Parent
and/or
Merger Sub, enforceable against each of them in accordance with
its terms, except that (i) such enforcement may be subject
to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws, now or hereafter
in effect, affecting creditors rights and remedies
generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
Section
5.3
Consents
and Approvals; No Violations
.
The execution
and delivery by Parent and Merger Sub of each Transaction
Agreement to which it is a party does not, and the performance
by Parent
and/or
Merger Sub of each such Transaction Agreement and the
consummation by Parent
and/or
Merger Sub of the transactions contemplated thereby, including
the Financing and the Merger, will not, (a) violate any
provision of the certificate of formation or the limited
liability company agreement of Parent or Merger Sub,
(b) result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or
acceleration) under, any Contract to which Parent or any of its
Subsidiaries is a party or by which any of them or any of their
respective properties or assets is bound, (c) violate any
Law applicable to Parent, any of its Subsidiaries or any of
their properties or assets or (d) other than in connection
or compliance with applicable requirements of the Vermont Laws
and other applicable Laws, require Parent or Merger Sub to make
any filing or registration with or notification to, or require
Parent or Merger Sub to obtain any authorization, consent or
approval of, any Governmental Entity; except, in the case of
clauses (b), (c) and (d), for such violations, breaches or
defaults that, or filings, registrations,
A-21
notifications, authorizations, consents or approvals the failure
of which to make or obtain, would not, individually or in the
aggregate, reasonably be expected to prevent or materially
impair or delay the ability of Parent or Merger Sub to perform
their respective obligations under this Agreement, of Parent to
enforce its rights and the obligations of members of the Swenson
Granite Group under the Voting Agreements or the Swenson
Contributing Shareholders under the Swenson Contribution
Agreements or of Merger Sub to consummate the Merger.
Section
5.4
Swenson
Granite Group
.
Exhibit C
hereto
sets forth the names of the members of the Swenson Granite Group
and shares of Company Class A Common Stock and Company
Class B Common Stock as to which such named Persons are
entitled to vote or direct the vote with respect to a vote by
the Companys shareholders to approve this Agreement at the
Special Meeting. Each such member of the Swenson Granite Group
has agreed, pursuant to the terms of a Voting Agreement, to vote
or cause to be voted, all such shares of Company Common Stock in
favor of approval of this Agreement at the Special Meeting. Each
member of the Swenson Granite Group is a party to a Voting
Agreement and each Swenson Contributing Shareholder is subject
to a Swenson Contribution Agreement as to the number of shares
opposite each such members name on
Exhibit C
hereto. Each of the Voting Agreements and Swenson Contribution
Agreements are in full force and effect as of the date of this
Agreement and, to the Knowledge of Parent, are legal, valid and
binding obligations of each member of the Swenson Granite Group
party thereto.
Section
5.5
Disclosure
Documents
.
(a) The
Schedule 13E-3
when filed shall comply as to form in all material respects with
the applicable requirements of the Exchange Act.
(b) The information with respect to Parent and any of its
Subsidiaries that Parent or Merger Sub furnishes, or causes to
be furnished, in writing specifically for use in any Disclosure
Document shall not (a) in the case of the Proxy Statement,
as supplemented or amended, if applicable, at the time such
Proxy Statement or any amendment or supplement thereto is first
mailed to shareholders of the Company, at the Special Meeting or
at the Effective Time and (b) in the case of any Disclosure
Document (other than the Proxy Statement), at the time of the
filing of such Disclosure Document or any supplement or
amendment thereto, and at the time of any distribution or
dissemination thereof, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they were
made, not misleading.
(c) The representations and warranties contained in this
Section 5.5 will not be deemed to relate to statements or
omissions in the
Schedule 13E-3
based upon information furnished or caused to be furnished to
the Parent in writing by Company specifically for use therein.
Section
5.6
Merger
Subs Operations
.
Merger Sub was formed
solely for the purpose of effecting the Merger and the other
transactions contemplated hereby and has not owned any assets,
engaged in any business activities or conducted any operations
other than in connection with this Agreement, the Merger and the
other transactions contemplated hereby.
Section
5.7
Financing
.
Parent
has received a commitment letter, dated as of the date of this
Agreement (the
Financing Letter
), from
Peoples United Bank and Key Bank National Association
(together, the
Lenders
), which commitment
letter contains as exhibits thereto the definitive financing
agreements (the
Financing Agreements
and,
together with the Financing Letter, the
Financing
Documents
) relating to the financing necessary to pay
the Merger Consideration and the Option Cash-Out Payments, repay
any outstanding indebtedness of the Company or any Subsidiary of
the Company required by the terms thereof to be repaid in
connection with the Merger and to pay all related fees and
expenses (the
Financing
), which Financing
Agreements shall be executed, substantially in the form set
forth in the exhibits to the Financing Letter, at or prior to
the Effective Time. The Lenders have committed to provide the
Financing contemplated by the Financing Documents upon and
subject to the terms and conditions set forth in the Financing
Documents. Parent has provided the Company with a true, complete
and correct copy of the Financing Documents. The Financing
Letter is in full force and effect and has not been withdrawn or
terminated or otherwise amended or modified in any respect as of
the date of this Agreement and is a legal, valid and
A-22
binding obligation of Parent and, to the Knowledge of Parent, of
the Lenders. The Financing Agreements, when executed, shall be
valid and binding obligations of Parent and, to the Knowledge of
Parent, of the Lenders. The Financing Documents have not been
and will not be amended or modified, except as permitted by
Section 6.13. Neither Parent nor Merger Sub is in breach of
any of the material terms or conditions set forth in the
Financing Documents and no event has occurred which, with or
without notice, lapse of time or both, would constitute a
material default or material breach or failure to satisfy a
condition precedent on the part of Parent or Merger Sub under
the Financing Documents, and neither Parent nor Merger Sub has
any reason to believe that it will be unable to satisfy on a
timely basis any material term or condition of closing to be
satisfied by it in the Financing Documents on or prior to the
Effective Time. There are no precedent conditions related to the
funding of the full amount of the Financing other than as
expressly set forth in or contemplated by the Financing
Documents. There are no side letters or other agreements,
contracts or arrangements (except for customary fee letters and
engagement letters) related to the funding or investing, as
applicable, of the full amount of the Financing other than as
expressly set forth in or contemplated by the Financing
Documents. The aggregate proceeds contemplated by the Financing
Documents, together with Parents cash on hand, will be
sufficient for Parent
and/or
Merger Sub to pay or cause to be paid the aggregate Merger
Consideration, the Option Cash-Out Payments, any repayment of
outstanding indebtedness of the Company or any Subsidiary of the
Company required by the terms thereof to be repaid in connection
with the Merger such aggregate proceeds required to make such
payments (the
Required Funding Amount
) and
all related fees and expenses. Parent has fully paid any and all
fees that have been incurred and are due and payable on or
before the date hereof in connection with the Financing Letter,
and Parent will pay when due all other fees arising under the
Financing Documents as and when they become due and payable.
Section
5.8
No
Knowledge of Breach of Representation or
Warranty
.
Parent has no Knowledge of any of
the Companys representations or warranties being untrue in
any material respect.
Section
5.9
Litigation
.
As
of the date hereof, there is no action, claim, suit, proceeding
or governmental investigation pending against or, to the
Knowledge of Parent, threatened in writing against or affecting,
Parent or any of its Subsidiaries that would, individually or in
the aggregate, reasonably be expected to prevent or materially
impair or delay the ability of Parent or Merger Sub to perform
their respective obligations under this Agreement, of Parent to
enforce its rights and the obligations of members of the Swenson
Granite Group under the Voting Agreements or the Swenson
Contributing Shareholders under the Swenson Contribution
Agreements or of Merger Sub to consummate the Merger. As of the
date hereof, neither Parent nor any of its Subsidiaries is
subject to any Order against Parent or any of its Subsidiaries
or naming Parent or any of its Subsidiaries as a party, that
would, individually or in the aggregate, reasonably be expected
to prevent or materially impair or delay the ability of Parent
or Merger Sub to perform their respective obligations under this
Agreement, of Parent to enforce its rights and the obligations
of members of the Swenson Granite Group under the Voting
Agreements or the Swenson Contributing Shareholders under the
Swenson Contribution Agreements or of Merger Sub to consummate
the Merger.
Section
5.10
Solvency
.
Assuming
(a) the accuracy of the Companys representations and
warranties contained herein and (b) the Companys
financial statements included in the Company SEC Reports are
accurate in all material respects, immediately after giving
effect to the Financing and the Merger, including the payment of
the aggregate Merger Consideration and the Option Cash-Out
Payments, and payment of all related fees and expenses, Parent,
the Surviving Corporation and their respective Subsidiaries,
taken as a whole, will be Solvent immediately after the
Effective Time.
Section
5.11
Brokers
or Finders
.
No investment banker, broker,
finder, financial advisor or intermediary is entitled to any
investment banking, brokerage, finders or similar fee or
commission in connection with this Agreement, the Merger or the
Financing based upon arrangements made by or on behalf of Parent
or Merger Sub.
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ARTICLE VI
COVENANTS
Section
6.1
Interim
Operations of the Company
.
(a) During
the period from the date hereof until the Effective Time (except
(a) as may otherwise be required in connection with
applicable Law, (b) with the prior written consent of
Parent, which consent shall not be unreasonably withheld,
delayed or conditioned, (c) as contemplated or permitted by
this Agreement or (d) as set forth in the Disclosure
Schedule), the Company shall, and shall cause its Subsidiaries
to, (i) conduct their respective businesses and operations
in the ordinary course consistent with past practice,
(ii) use commercially reasonable efforts to preserve intact
their current business organization and maintain their
relationships with employees, customers, suppliers and others
having business dealings with them and (iii) use
commercially reasonable efforts to maintain in effect all
material Permits. Without limiting the generality of the
foregoing, during the period from the date hereof until the
Effective Time (except (a) as may otherwise be required in
connection with applicable Law, (b) with the prior written
consent of Parent, which consent shall not be unreasonably
withheld, delayed or conditioned, (c) as contemplated or
permitted by this Agreement or (d) as set forth in the
Disclosure Schedule), the Company shall not, and shall cause its
Subsidiaries not to, (a) declare, set aside or pay any
dividends on, or make any other distributions in respect of, any
of its capital stock, other than dividends and distributions by
a direct or indirect wholly owned Subsidiary of the Company,
(b) split, combine or reclassify any of its capital stock,
(c) issue, deliver, sell, grant, pledge or otherwise
encumber any shares of its capital stock or rights to acquire
the same, (d) amend, authorize or propose to amend its
articles of incorporation or by-laws, (e) acquire or agree
to acquire any substantial portion of the assets of, or any
equity interest in, any business or entity or any assets that
are material, individually or in the aggregate, to the Company
and Subsidiaries, taken as a whole, (f) other than in the
ordinary course of business or as may be required by applicable
Law or by Contract, grant to any employee, officer or director
of the Company or any Subsidiary any increase in compensation,
(g) grant or increase any severance or termination pay,
enter into any employment, consulting, severance or termination
agreement with any such employee, officer or director, or enter
into or amend in any material respect any collective bargaining
agreement or Benefit Plan, and (h) other than in the
ordinary course of business, and other than in connection with
the Financing, incur, create, assume or otherwise become liable
for, or repay or prepay, any indebtedness for borrowed money, or
guarantee any such indebtedness of any third party.
Section
6.2
Access
to Information
.
From the date hereof until
the earlier of the Effective Time and the termination of this
Agreement, the Company shall (and shall cause each of its
Subsidiaries to) afford to officers, employees, counsel,
investment bankers, financing sources, accountants and other
authorized representatives (
Representatives
)
of Parent reasonable access, in a manner not disruptive to the
operations of the business of the Company and its Subsidiaries,
during normal business hours and upon reasonable notice, to the
properties, books and records of the Company and its
Subsidiaries and, during such period, shall (and shall cause
each of its Subsidiaries to) furnish promptly to such
Representatives all information concerning the business,
properties and personnel of the Company and its Subsidiaries, in
each case as may reasonably be requested and necessary to
consummate the Financing and the Merger; provided
,
however, that nothing herein shall require the Company or any of
its Subsidiaries to disclose any information to Parent or Merger
Sub if such disclosure would, in the reasonable judgment of the
Company and after taking into account the provisions of
applicable non-disclosure agreements, (a) cause significant
competitive harm to the Company or its Subsidiaries if the
Merger were not consummated, (b) violate applicable Law or
any request or requirement of any Governmental Entity or the
provisions of any Contract to which the Company or any of its
Subsidiaries is a party or (c) jeopardize any
attorney-client or other legal privilege. If any material is
withheld by the Company or any of its Subsidiaries pursuant to
the preceding sentence, then the Company will so inform Parent
of the general nature of what is being withheld. Parent agrees
that it will not, and will cause its Representatives not to, use
any information obtained pursuant to this Section 6.2 for
any competitive or other purpose unrelated to the consummation
of the Merger or the Financing. The Confidentiality Agreement
shall apply with respect to information furnished hereunder by
the Company, its Subsidiaries and their Representatives and
shall survive termination of this Agreement.
A-24
Section
6.3
Acquisition
Proposals
.
(a) The Company will as promptly as reasonably practicable
(and in any event within two Business Days after receipt by the
Company Board or the Special Committee) notify Parent of the
receipt of any Acquisition Proposal. The Company shall notify
Parent, in writing, of any decision of the Company Board or of
the Special Committee or a majority of the (but not less than
two) Qualified Directors (with respect to both this Agreement
and such Acquisition Proposal) as to whether to consider any
Acquisition Proposal or to enter into discussions or
negotiations concerning any Acquisition Proposal or to provide
material non-public information or data with respect to the
Company to any Person, which notice shall be given as promptly
as reasonably practicable after such determination was reached
(and in any event no later than two Business Days after such
determination was reached). The Company will (i) provide
Parent with written notice setting forth such information as is
reasonably necessary to keep Parent reasonably informed in all
material respects of the status and material terms of any such
Acquisition Proposal and of any material amendments thereto and
(ii) promptly (and in any event within two Business Days of
such determination) notify Parent of any determination by the
Company Board or of the Special Committee or a majority of the
(but not less than two) Qualified Directors (with respect to
both this Agreement and such Acquisition Proposal) that such
Acquisition Proposal constitutes a Superior Proposal. The
Company will provide to Parent copies of all non-public
information which the Company shall provide to an entity or
person or group thereof making an Acquisition Proposal.
(b) Subject to Section 6.3(c) and Section 6.3(d),
neither the Company Board nor any committee thereof shall,
directly or indirectly, (i)(A) withdraw or modify in a manner
adverse to Parent or Merger Sub the Company Board
Recommendation; (B) adopt or recommend any Acquisition
Proposal; or (C) in the event of a tender offer or exchange
offer for any outstanding Company Common Stock, fail to
recommend against acceptance of such tender offer or exchange
offer by the Companys shareholders within 10 Business Days
of the commencement thereof (for the avoidance of doubt, the
taking of no position or a neutral position by the Company Board
or any committee thereof in respect of the acceptance of any
tender offer or exchange offer by its shareholders shall
constitute a failure to recommend against any such offer) (any
action described in clauses (A)-(C) above being referred to as a
Change of Recommendation
) or
(ii) allow the Company to execute or enter into any merger
agreement, acquisition agreement or other similar agreement with
respect to any Acquisition Proposal (an
Acquisition
Agreement
).
(c) Notwithstanding the foregoing or anything else in this
Agreement to the contrary, prior to the Shareholder Approvals,
the Company may, if the Special Committee or a majority of the
(but not less than two) Qualified Directors (with respect to
both this Agreement and such Acquisition Proposal), and the
Company Board if required by applicable provisions of the
Vermont Laws or the Company Bylaws, determines in good faith,
after consultation with its outside counsel, that the failure to
take such action would reasonably be expected to be inconsistent
with the fiduciary duties of the Companys directors under
applicable Law, (i) make a Change of Recommendation
and/or
(ii) in response to a Superior Proposal, cause the Company
to terminate this Agreement to enter into an Acquisition
Agreement that contemplates a Superior Proposal;
provided
,
however
, that the Company may not make a
Change of Recommendation or terminate this Agreement pursuant to
this Section 6.3(c) unless the Company shall have provided
at least five Business Days notice to Parent that the
Company intends to take such action and specifying the reasons
therefor, including, if the basis of the proposed action by the
Company is a Superior Proposal, the material terms and
conditions of such Superior Proposal (it being understood and
agreed that any amendment to any material term of such Superior
Proposal shall require a new notice and a new five Business Day
period). In determining whether to make a Change of
Recommendation or to cause the Company to so terminate this
Agreement pursuant to the terms of this Section 6.3(c), the
Special Committee or a majority of the (but not less than two)
Qualified Directors (with respect to both this Agreement and
such Acquisition Proposal), and the Company Board if required by
applicable provisions of the Vermont Laws or the Company Bylaws,
shall take into account any changes to the terms and conditions
of this Agreement proposed by Parent to the Company in response
to any such notice.
(d) Nothing contained in this Section 6.3 or elsewhere
in this Agreement shall prohibit the Company, the Company Board,
or the Special Committee or a majority of the (but not less than
two) Qualified Directors (with respect to both this Agreement
and such Acquisition Proposal) from taking and disclosing to the
A-25
Companys shareholders a position with respect to a tender
offer or exchange offer by a third party or from taking any
action or making any disclosure required by applicable Law,
including
Sections 14d-9
and
14e-2
of
the Exchange Act.
Section
6.4
Publicity
.
The
initial press release by the Company with respect to the
execution of this Agreement shall be mutually acceptable to
Parent and the Company. Neither the Company nor Parent (nor any
of their respective Affiliates) shall issue any other press
release or make any other public announcement with respect to
this Agreement, the Merger or the other transactions
contemplated hereby without the prior agreement of the other
party, except as may be required by applicable Law, in which
case the party proposing to issue such press release or make
such public announcement shall use commercially reasonable
efforts to consult in good faith with the other party before
making any such public announcements;
provided
,
however
, that the Company will no longer be required to
obtain the prior agreement of or consult with Parent in
connection with any such press release or public announcement if
the Company Board has effected a Change of Recommendation or in
connection with any such press release or public announcement
pursuant to Section 6.3(d).
Section
6.5
Indemnification
and Insurance
.
(a) Each of the parties hereto agrees that all rights to
indemnification, advancement of expenses and exculpation from
liabilities for acts or omissions occurring at or prior to the
Effective Time in favor of each present and former director and
officer of the Company or any of its Subsidiaries, and each
individual who is serving or has served at the request of the
Company as a director, office or trustee of another Person, in
each case determined as of the Effective Time (each such
individual, together with such persons heirs, executors or
administrators, an
Indemnified Party
), as
provided in the Companys and its Subsidiaries
respective articles of incorporation or bylaws or any
indemnification or other agreements of the Company or any of its
Subsidiaries, in each case as in effect on the date hereof,
shall remain obligations of the Surviving Company, without
further action, at the Effective Time, shall survive the Merger,
shall continue in full force and effect in accordance with their
terms and shall not be amended, repealed or otherwise modified
in any manner that would adversely affect the rights thereunder
of the Indemnified Parties, unless such modification is required
by applicable Law.
(b) Without limiting any additional rights that any
Indemnified Party may have under any Contract, from and after
the Effective Time, the Surviving Company shall indemnify and
hold harmless each Indemnified Party against all claims, losses,
liabilities, damages, judgments, inquiries, fines, amounts paid
in settlement and reasonable fees, costs and expenses, including
reasonable attorneys fees and disbursements, incurred in
connection with any proceeding, whether civil, criminal,
administrative or investigative, arising out of, pertaining to
or in connection with the fact that the Indemnified Party is or
was an officer, director, employee, fiduciary or agent of the
Company, or of another entity if such service was at the request
of or for the benefit of the Company, whether asserted or
claimed prior to, at or after the Effective Time, to the fullest
extent the Surviving Company is permitted to do so under
applicable Law. In the event of any such proceeding, each
Indemnified Party will be entitled to advancement of expenses
from the Surviving Company incurred in the defense of the
proceeding (provided that any Person to whom expenses are
advanced shall have provided an undertaking to repay such
advances if it is finally determined that such Person is not
entitled to indemnification), and the Surviving Company shall
provide such advancement of expenses, to the fullest extent the
Surviving Company is permitted to do so under applicable Law.
The Surviving Company shall reasonably cooperate with the
Indemnified Parties in the defense of any such matter and any
determination made or required to be made with respect to
whether an Indemnified Partys conduct complies with
standards under applicable Law shall be made by independent
legal counsel selected by the Surviving Company and reasonably
acceptable to the Indemnified Party. No Indemnified Party shall
settle, compromise or consent to the entry of any judgment in
any such matter indemnifiable under this Section 6.5(b)
unless Parent consents in writing to such settlement, compromise
or consent, which consent by Parent shall not be unreasonably
withheld.
(c) Parent shall cause to be maintained in effect for not
less than six years from the Effective Time the current policies
of directors and officers liability insurance and
fiduciary liability insurance maintained by the Company and its
Subsidiaries for the Indemnified Parties and any other
employees, agents or other
A-26
individuals otherwise covered by such insurance policies prior
to the Effective Time (collectively, the
Insured
Parties
) with respect to matters occurring at or prior
to the Effective Time (including the Merger and the other
transactions contemplated hereby);
provided
,
however
, that Parent and the Surviving Company shall not
be required to pay an annual premium for such insurance in
excess of 300% of the last annual premium paid prior to the date
of this Agreement; and
provided
,
further
, that in
lieu of the purchase of such insurance by Parent or the
Surviving Company, the Company may at its option prior to the
Effective Time purchase a
six-year
run-off (Extended Reporting Period) program for directors
and officers liability insurance and fiduciary liability
insurance for the Insured Parties.
(d) This Section 6.5 (i) is intended to benefit
and be enforceable by the Insured Parties and the Indemnified
Parties and their heirs and representatives, and shall be
binding on all successors and assigns of Parent, Merger Sub and
the Surviving Company and (ii) is in addition to, and not
in substitution for, any other rights to indemnification or
contribution that any such individual may have by contract or
otherwise. As a separate and independent obligation and without
any requirement of demand, or of nonperformance or non-payment
by the Surviving Company, Parent hereby guarantees the payment
and performance by the Surviving Company of the indemnification,
expense advancement and other obligations pursuant to this
Section 6.5. Parent shall cause the Surviving Company to
comply with all of its obligations under this Section 6.5.
(e) In the event that Parent, the Surviving Company or any
of their successors or assigns (i) consolidates with or
merges into any other Person and shall not be the continuing or
surviving Person of such consolidation or merger or
(ii) transfers or conveys a majority of its properties and
assets to any Person, then, and in each such case, proper
provision shall be made so that the successors, assigns and
transferees of Parent or the Surviving Company or their
respective successors or assigns, as the case may be, assume the
obligations set forth in this Section 6.5.
Section
6.6
Reasonable
Best Efforts; Notification
.
Subject to the
terms and conditions hereof, the Company, Parent and Merger Sub
shall, and Parent and the Company shall cause their respective
Subsidiaries to, each use their reasonable best efforts to take,
or cause to be taken, all actions, and do, or cause to be done,
and to assist and cooperate with the other parties in doing, all
things necessary, proper or advisable to consummate and make
effective the Merger and the other transactions contemplated
hereby as promptly as practicable, including:
(a) obtaining from any Governmental Entity or, to the
extent reasonably requested by Parent, any other third party
consents, licenses, permits, waivers, approvals, authorizations
or orders, making any filings and sending any notices, in each
case, which are material and required to be obtained, made or
sent by the Company or Parent or any of their Subsidiaries in
connection with the authorization, execution and delivery of
this Agreement and the consummation of the Merger;
provided
,
however
, that in connection therewith
none of the Company or its Subsidiaries will be required to make
or agree to make any payment or accept any material conditions
or obligations, including amendments to existing conditions and
obligations; and
(b) subject to the limitation set forth in the proviso to
the penultimate sentence of Section 6.13(b), executing or
delivering any additional instruments necessary to consummate
the Merger and to fully carry out the purposes of this Agreement.
The Company and Parent shall cooperate with each other in
connection with the making of all such filings, submissions,
applications and requests. The Company and Parent shall each use
their reasonable best efforts to furnish to each other (on an
outside counsel basis if appropriate) all information required
for any filing, submission, application or request to be made
pursuant to applicable Law in connection with the Merger. The
Company shall notify Parent promptly after becoming aware of any
representation or warranty made by it in this Agreement being or
becoming untrue or inaccurate, or any failure of the Company or
any of its Subsidiaries to comply with or satisfy in any
material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement, such that
the conditions set forth in Section 7.2(a) or
Section 7.2(b) would not be satisfied;
provided
,
however
, that no such notification shall affect the
representations, warranties, covenants or agreements of the
Company or the conditions to the obligations of Parent and
Merger Sub under this Agreement.
A-27
Section
6.7
Section 16
Matters
.
Prior to the Effective Time, the
Company shall be permitted to take any such steps as may be
reasonably necessary or advisable to cause any dispositions of
Company Common Stock (including derivative securities with
respect to Company Common Stock) resulting from the Merger by
each individual who is subject to the reporting requirements of
Section 16(a) of the Exchange Act with respect to the
Company, to be exempt under
Rule 16b-3
promulgated under the Exchange Act, such steps to be taken in
accordance with the No-Action Letter dated January 12,
1999, issued by the SEC to Skadden, Arps, Slate,
Meagher & Flom LLP.
Section
6.8
Tax
Matters
.
All real and personal property
transfer, documentary, sales, use, registration, value-added,
stamp, duty and other similar Taxes incurred in connection with
the Merger and the other transactions contemplated hereby shall
be borne by Parent.
Section
6.9
Obligations
of Merger Sub and the Surviving
Company
.
Parent shall cause Merger Sub and
the Surviving Company to perform their respective obligations
under this Agreement and shall cause Merger Sub to consummate
the Merger on the terms and conditions set forth in this
Agreement. Parent hereby guarantees the payment by Merger Sub
and the Surviving Company of any amounts payable by Merger Sub
or the Surviving Company pursuant to the Merger and otherwise as
provided in this Agreement.
Section
6.10
Voting
of Company Common Stock
.
(a) Parent shall vote or cause to be voted at the Special
Meeting all shares of Company Common Stock which it or any of
its Subsidiaries is entitled to vote or to direct the voting of
in favor of approval of this Agreement. Parent shall enforce,
and not waive any of, its rights under the Voting Agreements,
and pursuant thereto will cause each of the members of the
Swenson Granite Group to vote or cause to be voted at the
Special Meeting all shares of Common Company Stock which the
members of the Swenson Granite Group are entitled to vote or to
direct the voting of in favor of approval of this Agreement.
(b) In order for the Company to determine whether the
Majority of the Minority Approval has been obtained, immediately
following the closing of the polls at the Special Meeting and
the tabulation of the vote by the Inspector of Elections, Parent
shall, to its Knowledge, certify to the Company and the
Inspector of Elections in writing the number of shares of
Class A Common Stock owned directly or through a broker or
other nominee by any member of Parent as of the record date for
the Special Meeting and the number of such shares that were
voted in favor of approval of this Agreement.
Section
6.11
FIRPTA
Withholding
.
The parties hereto agree that
the Surviving Company and Parent are not required to, and shall
not, withhold from the consideration payable to any Person
pursuant to ARTICLE III any amounts under section 1445
of the Code.
Section
6.12
Post-Signing
Actions by the Company Board
.
From the date
hereof until the Effective Time, the approval of the Special
Committee or a majority of the (but not less than two)
Qualifying Directors (with respect to this Agreement) then in
office shall be required to authorize (and, subject to the
Company Charter, the Company Bylaws and applicable provisions of
the Vermont Laws, such authorization shall constitute the
authorization of the Company Board and no other action on the
part of the Company, including any action by any other director
of the Company, shall be required to authorize) any termination
of this Agreement by the Company, any amendment of this
Agreement or any waiver of any benefit or right of the Company
hereunder, including any decrease in or change of form of the
Merger Consideration, and any extension of time for performance
of any obligation or agreements or conditions contained in this
Agreement for the benefit of the Company, or any action or
determination by the Company required or permitted to be taken
or made by the Company hereunder. From the date hereof until the
Effective Time, any action by the Company to enforce any
obligation of Parent or Merger Sub under this Agreement shall be
effected only by action of the Special Committee or a majority
of the (but not less than two) Qualified Directors (with respect
to this Agreement), subject, however, to the Company Charter,
the Company Bylaws and applicable provisions of the Vermont Laws.
A-28
Section
6.13
Financing;
Enforcement of Swenson Contribution Agreements
.
(a) Parent and Merger Sub acknowledge and agree that,
except as set forth in the penultimate sentence of
Section 6.13(b), prior to the Effective Time, the Company
and its Affiliates have no obligations or responsibility of any
kind for or in connection with the Financing or any alternative
financing that Parent or Merger Sub may obtain or seek to obtain
in connection with the Merger.
(b) Parent shall 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 to (i) maintain in effect
the Financing Letter and, if executed prior to the Effective
Time, the Financing Agreements, (ii) execute the Financing
Agreements and upon execution thereof deliver a copy thereof to
the Company, (iii) satisfy or obtain a waiver of all
conditions that are within its control on a timely basis to
obtain the Financing as contemplated by the Financing Documents,
(iv) comply in all material respects with its obligations
under the Financing Documents and (v) consummate the
Financing at or prior to the Effective Time. Parent shall keep
the Company reasonably informed of material developments in
respect of the financing process relating thereto. Until the
Financing has been consummated and the proceeds thereof applied
to pay amounts required hereunder to be paid, or caused to be
paid, by Parent, Merger Sub or the Surviving Company,
(i) Parent shall enforce its rights under the Financing
Documents and (ii) Parent shall not agree to or permit any
amendment or modification of, or waiver under, the Financing
Documents or other final documentation relating to the
Financing, in each case, in a manner that would delay or prevent
the Closing, without the prior written consent of the Company,
except as otherwise permitted under Section 6.13(e). From
the date hereof until the Closing Date, upon request of Parent,
the Company shall, and shall use reasonable best efforts to
cause its Subsidiaries, and its and their Affiliates and
Representatives to reasonably cooperate with Parent and Merger
Sub in connection with the Financing, provided that prior to the
Effective Time, neither the Company nor any of its Subsidiaries
shall be (i) required to execute and deliver any Financing
Documents or to consummate any transactions contemplated thereby
or (ii) enter into any agreements or take any action, in
each case, in connection with the Financing, that would impose
or result in the creation of any obligation on the Company or
any of its Subsidiaries. Parent shall promptly, upon request by
the Company, reimburse the Company for all
out-of-pocket
expenses incurred by the Company or its Affiliates or
Representatives in connection with such cooperation.
(c) Parent shall enforce, and not waive any of its rights
under, the Swenson Contribution Agreements, and pursuant
thereto, after the date hereof and in any event prior to the
Effective Time will acquire and hold the shares of Company
Common Stock currently owned by the Swenson Contributing
Shareholders and listed on
Exhibit C
.
(d) If, notwithstanding the use of best efforts by Parent
and Merger Sub to satisfy its obligations under
Section 6.13(b), the Financing Documents expire or are
terminated prior to the Closing, in whole or in part, Parent and
Merger Sub shall (i) promptly notify the Company of such
expiration or termination and the reasons therefor and
(ii) unless this Agreement is sooner terminated pursuant to
ARTICLE VIII, use its best efforts through the End Date to
promptly arrange for alternative financing (in an amount at
least equal to the Required Funding Amount from other sources on
economic terms which are comparable to the terms set forth in
the Financing Documents and which do not include any conditions
of such alternative financing that are more onerous than or in
addition to the conditions set forth in the Financing Documents)
to replace the financing contemplated by such expired or
terminated agreements.
(e) Notwithstanding anything to the contrary contained in
Section 6.13(b), at any time Parent or Merger Sub may amend
or replace the Financing with alternative financing arrangements
which (i) provide Parent prior to or concurrent with the
Effective Time with funds in an amount at least equal to the
Required Funding Amount, (ii) are no less favorable to the
Company than the Financing and (iii) do not prevent or
materially impair or delay the Closing. In the event Parent or
Merger Sub replaces the Financing with any such alternative
financing arrangements, the terms of Section 6.13(b) shall
no longer apply with respect to the Financing, but shall
thereafter apply with respect to the such alternative financing
arrangements.
Section
6.14
Stockholder
Litigation
.
The Company shall promptly advise
Parent orally and in writing of any action, claim, suit,
proceeding or governmental investigation commenced or asserted
after the date of
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this Agreement against the Company or any of its directors by
any stockholder of the Company relating to this Agreement and
the Merger, and shall keep Parent reasonably informed regarding
any such litigation.
Section
6.15
Supplements
to Disclosure Schedule
.
From time to time
prior to the Closing, the Company shall give prompt notice to
Parent and thereafter promptly supplement or amend the
Disclosure Schedule with respect to any matter hereinafter
arising which, if existing or occurring at the date hereof,
would have been required to be set forth or described in the
Disclosure Schedule. No supplement or amendment of the
Disclosure Schedule made pursuant to this Section 6.15
shall be deemed to cure any breach of any representation,
warranty, covenant or agreement made in this Agreement unless
Parent specifically agrees thereto in writing.
ARTICLE VII
CONDITIONS
Section
7.1
Conditions
to Each Partys Obligation to Effect the
Merger
.
The obligations of the Company, on
the one hand, and Parent and Merger Sub, on the other hand, to
consummate the Merger are subject to the satisfaction (or waiver
by the Company, Parent and Merger Sub, if permissible under Law)
at or prior to the Closing of the following conditions:
(a) the Shareholder Approvals shall have been
obtained; and
(b) no Governmental Entity of competent jurisdiction in the
United States shall have enacted or issued any Order or taken
any other action enjoining or otherwise prohibiting consummation
of the Merger or materially changing the terms or conditions of
this Agreement.
Section
7.2
Conditions
to Obligations of Parent and Merger Sub
.
The
obligation of Merger Sub to consummate the Merger is further
subject to the satisfaction (or waiver by Merger Sub, if
permissible under Law) at or prior to the Closing of the
following conditions:
(a) the representations and warranties of the Company
contained in (i) Section 4.21 shall be true and
accurate in all respects and (ii) Section 4.1 through
Section 4.20 shall be true and accurate as of the date of
this Agreement and on and as of the Closing Date (other than
those representations and warranties that address matters only
as of a particular date or only with respect to a specific
period of time, which representations and warranties need only
be true and accurate as of such date or with respect to such
period);
provided
,
however
, that the condition set
forth in Section 7.2(a)(ii) shall be deemed to have been
satisfied unless the impact of the failure of any of such
representations and warranties (when read without exception or
qualification as to materiality or Material Adverse Effect) to
be so true and accurate has had a Material Adverse Effect;
(b) the Company shall have performed or complied in all
material respects with all agreements or covenants required to
be performed or complied with by it under this Agreement at or
prior to the Closing;
(c) the Company shall have delivered to Parent a
certificate, dated the Closing Date, signed by an executive
officer of the Company certifying that the conditions set forth
in Section 7.2(a) and Section 7.2(b) have been
satisfied;
(d) not more than 20% of the shares of Company Common Stock
outstanding immediately prior to the Effective Time (for this
purpose assuming the exercise for Company Class A Common
Stock immediately prior to the Effective Time of all then
outstanding Company Options) shall be Dissenting Shares; and
(e) from the date of this Agreement through the Effective
Time, there shall not have occurred any event that has had a
Material Adverse Effect.
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Section
7.3
Conditions
to Obligation of the Company
.
The obligation
of the Company to consummate the Merger is further subject to
the satisfaction (or waiver by the Company, if permissible under
Law) at or prior to the Closing of the following conditions:
(a) the representations and warranties of Parent and Merger
Sub contained in ARTICLE V shall be true and accurate as of
the date of this Agreement and on and as of the Closing Date
(other than those representations and warranties that address
matters only as of a particular date or only with respect to a
specific period of time, which representations and warranties
need only be true and accurate as of such date or with respect
to such period);
provided
,
however
, that the
condition set forth in this Section 7.3(a) shall be deemed
to have been satisfied unless the impact of the failure of any
of such representations and warranties (when read without
exception or qualification as to materiality) to be so true and
accurate, individually or in the aggregate, prevents Merger Sub
from consummating, or Parent from causing Merger Sub to
consummate, or materially impairs the ability of Merger Sub to
consummate or of Parent to cause Merger Sub to consummate, the
Merger;
(b) Parent and Merger Sub shall have performed or complied
in all material respects with all agreements or covenants
required to be performed or complied with by them under this
Agreement at or prior to the Closing; and
(c) Parent shall have delivered to the Company a
certificate, dated the Closing Date, signed by an executive
officer of Parent certifying that the conditions set forth in
Section 7.3(a) and Section 7.3(b) have been satisfied.
Section
7.4
Frustration
of Closing Conditions
.
Neither Parent nor
Merger Sub may rely on the failure of any condition set forth in
Section 7.1 or Section 7.2 to be satisfied as a basis
for not consummating the Merger if such failure was caused by
such partys failure to act in good faith or use its
reasonable best efforts to consummate the Merger, as required by
and subject to Section 6.6. The Company may not rely on the
failure of any condition set forth in Section 7.1 or
Section 7.3 to be satisfied as a basis for not consummating
the Merger if such failure was caused by such partys
failure to act in good faith or use its reasonable best efforts
to consummate the Merger, as required by and subject to
Section 6.6.
ARTICLE VIII
TERMINATION
Section
8.1
Termination
.
Anything
herein or elsewhere to the contrary notwithstanding, this
Agreement may be terminated and the Merger may be abandoned at
any time prior to the Effective Time, whether before or after,
receipt of the Shareholder Approvals (other than the Majority of
the Minority Approval in the case of termination pursuant to
Section 8.1(b)(iii) and other than the Company Common
Shareholder Approval in the case of termination pursuant to
Section 8.1(c)(iii)):
(a) by the mutual written consent of the Company and
Parent; or
(b) by either the Company or Parent:
(i) if the Merger shall not have been consummated on or
prior to May 18, 2011 (the
End Date
);
provided
,
however
, that the right to
terminate this Agreement under this Section 8.1(b) shall
not be available to any party whose breach of this Agreement has
been the cause of, or resulted in, the failure of such
conditions to be satisfied on or prior to such date; or
(ii) if any Governmental Entity of competent jurisdiction
in the United States shall have enacted or issued any Order or
taken any other action, in each case such that the condition set
forth in Section 7.1(b) cannot be satisfied on or prior to
the End Date, and such Order or other action shall have become
final and non-appealable, unless the party seeking to terminate
this Agreement pursuant to this Section 8.1(b)(ii) shall
not have complied with its obligations under
Section 6.6; or
(iii) if the Majority of the Minority Approval shall not
have been obtained at the Special Meeting duly convened at which
a vote on approval of this Agreement was taken; or
A-31
(c) by the Company:
(i) upon a breach of any covenant or agreement on the part
of Parent or Merger Sub, or if any representation or warranty of
Parent or Merger Sub shall be untrue, in any case such that a
condition set forth in Section 7.3(a) or
Section 7.3(b) would not be satisfied and such breach is
either incapable of being cured prior to the End Date or, if
capable of being cured prior to the End Date, is not so cured on
or before the End Date;
provided
,
however
, that
the right to terminate this Agreement under this
Section 8.1(c)(i) shall not be available to the Company if
it or any of its Subsidiaries has failed to perform in any
material respect any of its obligations under this Agreement;
(ii) in compliance with Section 6.3(c); or
(iii) if the Company Common Shareholder Approval shall not
have been obtained at the Special Meeting duly convened at which
a vote on approval of this Agreement was taken; or
(d) by Parent:
(i) upon a breach of any covenant or agreement on the part
of the Company, or if any representation or warranty of the
Company shall be untrue, in any case such that a condition set
forth in Section 7.2(a) or Section 7.2(b) would not be
satisfied and such breach is incapable of being cured prior to
the End Date or, if capable of being cured prior to the End
Date, is not so cured on or before the End Date;
provided
,
however
, that the right to terminate
this Agreement under this Section 8.1(d)(i) shall not be
available to Parent or Merger Sub if either of them has failed
to perform in any material respect any of its obligations under
or in connection with this Agreement; or
(ii) if a Change of Recommendation shall have occurred.
Section
8.2
Notice
and Effect of Termination
.
(a) If a party is entitled to terminate this Agreement
pursuant to Section 8.1(b), (c), or (d), in order to do so
written notice of such termination must be given by such party
to the other party or parties specifying the provision hereof
pursuant to which such termination is made and a reasonably
detailed description of the basis therefor (and in the case of
termination by Parent pursuant to Section 8.1(d)(i) or
(ii), such written notice of termination must be given within 10
Business Days after Parent shall have become aware that such
right of termination has arisen), whereupon this Agreement shall
forthwith become null and void, and except as set forth in the
last sentence of Section 6.2, this Section 8.2 and
Section 9.12, there shall be no liability under or in
connection therewith on the part of Parent, Merger Sub or the
Company or their respective directors, officers, employees,
shareholders, Representatives, agents or advisors;
provided
,
however
, that, subject to and without
limitation of Section 8.2(d) or Section 8.2(e), in
each case, if applicable, nothing contained in this
Section 8.2 shall relieve Parent, Merger Sub or the Company
from liability for breach of any covenant or agreement contained
herein.
(b) If this Agreement is terminated by the Company pursuant
to Section 8.1(c)(i) due to Parents or Merger
Subs breach of their covenants or agreements contained
herein, then, in addition to and without limitation of the
remedies available to the Company for such any breach, including
the rights of the Company described in clause (b)(ii) of
Section 9.6, but subject to the limitations set forth in
Section 8.2(e) if applicable, Parent shall pay to the
Company by wire transfer of immediately available funds, to an
account designated by the Company, no later than two Business
Days after such termination, an amount in cash equal to all
out-of-pocket
costs and expenses incurred by or on behalf of the Company in
connection with the initial acquisition proposal submitted by
Parent to the Company Board, the process undertaken by or on
behalf of the Special Committee in response to such proposal,
this Agreement and the transactions contemplated hereby,
including, without limitation, the fees and disbursements of
counsel, financial advisors, accountants and bankers and the
fees paid to members of the Special Committee (collectively, the
Company Expenses
), as reasonably
documented by the Company.
(c) If this Agreement is terminated by Parent pursuant to
Section 8.1(d)(i) due to the Companys breach of its
covenants or agreements contained herein, then, in addition to
and without limitation of the remedies
A-32
available to Parent for such any breach, the Company shall pay
to Parent by wire transfer of immediately available funds, to an
account designated by Parent, no later than two Business Days
after such termination, an amount in cash equal to all
out-of-pocket
costs and expenses incurred by Parent in connection with this
Agreement and the transactions contemplated hereby, including,
without limitation, the fees and disbursements of counsel,
financial advisors, accountants and bankers (collectively, the
Parent Expenses
), as reasonably documented by
Parent.
(d) If this Agreement is terminated by the Company pursuant
to Section 8.1(c)(ii), then the Company shall pay to Parent
by wire transfer of immediately available funds, to an account
designated by Parent, no later than two Business Days after such
termination, an amount in cash equal to the Parent Expenses.
Parent and Merger Sub agree that in the event that the Parent
Expenses are paid to the Company pursuant to this
Section 8.2(d), the payment of such Parent Expenses shall
be the sole and exclusive remedy of Parent and Merger Sub
against the Company or any of its Representatives or Affiliates
for, and in no event will Parent or Merger Sub seek to recover
any other money damages or seek any other remedy based on a
claim in law or equity with respect to, (i) any loss
suffered as a result of the failure of the Merger to be
consummated, (ii) the termination of this Agreement,
(iii) any liabilities or obligations arising under this
Agreement, or (iv) any claims or actions arising out of or
relating to any breach, termination or failure of or under this
Agreement, and upon payment to Parent of the Parent Expenses,
neither the Company nor any Representative or Affiliate of the
Company shall have any further liability or obligation to Parent
or Merger Sub relating to or arising out of this Agreement or
the transactions contemplated hereby.
(e) If (i) all of the conditions set forth in
ARTICLE VII shall have been satisfied or waived (other than
those conditions that by their terms are to be satisfied at the
Closing, provided that such conditions shall have been capable
of being satisfied as of the date of termination of this
Agreement), (ii) the Merger shall not have been consummated
on or prior to the End Date by reason of Parent failing to
obtain the proceeds of the Financing or any alternative
financing and (iii) the Company terminates this Agreement
pursuant to Section 8.1(b), then Parent shall pay to the
Company by wire transfer of immediately available funds, to an
account designated by the Company, no later than two Business
Days after such termination, an amount in cash equal to the
greater of (A) the Company Expenses and (B) $2,518,000
(the
Termination Fee
). The Company agrees
that in the event that the Termination Fee is paid to the
Company pursuant to this Section 8.2(e), the payment of
such Termination Fee shall be the sole and exclusive remedy of
the Company against Parent, Merger Sub or any of their
Representatives or Affiliates for, and in no event will the
Company seek to recover any other money damages or seek any
other remedy based on a claim in law or equity with respect to,
(i) any loss suffered as a result of the failure of the
Merger to be consummated, (ii) the termination of this
Agreement, (iii) any liabilities or obligations arising
under this Agreement, or (iv) any claims or actions arising
out of or relating to any breach, termination or failure of or
under this Agreement, and upon payment to the Company of the
Termination Fee, neither Parent, Merger Sub nor any
Representative or Affiliate of Parent shall have any further
liability or obligation to the Company relating to or arising
out of this Agreement or the transactions contemplated hereby
(except that Parent and Merger Sub shall also be obligated with
respect to the last two sentences of Section 6.2).
(f) If the Company or Parent, as the case may be, receives
insurance proceeds as a result of any losses or expenses with
respect to which it has also received reimbursement payments
pursuant to, in the case of the Company, from Parent pursuant to
Section 8.2(b), or, in the case of Parent, from the Company
pursuant to Section 8.2(c) or Section 8.2(d), then the
party receiving such insurance proceeds shall pay the amount of
such insurance proceeds (net of any actual costs, expenses or
premiums incurred in connection with securing or obtaining such
proceeds and in any event not in excess of the reimbursement
payment actually received from Parent or the Company, as the
case may be, with respect to the Company Expenses or Parent
Expenses, as the case may be) to such other party as such
insurance proceeds are actually received by the Company or
Parent. The Company and Parent shall each use commercially
reasonable efforts to pursue any insurance claim that is or may
be available to such party with respect to Company Expenses or
Parent Expenses, as the case may be, for which such expenses
have been reimbursed by the other party.
A-33
ARTICLE IX
MISCELLANEOUS
Section
9.1
Amendment
and Modification
.
Subject to applicable Law,
this Agreement may be amended, modified and supplemented in any
and all respects, whether before or after any vote of the
shareholders of the Company contemplated hereby, by written
agreement of the parties hereto, at any time prior to the
Closing Date with respect to any of the terms contained herein;
provided
,
however
, that after either
Shareholder Approval has been obtained, no such amendment,
modification or supplement shall reduce or change the Merger
Consideration or adversely affect the rights of the
Companys shareholders hereunder without obtaining the
Shareholder Approvals with respect to such amendment,
modification or supplement.
Section
9.2
Non-Survival
of Representations and Warranties
.
None of
the representations and warranties in this Agreement or in any
schedule, instrument or other document delivered pursuant to
this Agreement shall survive the Effective Time or the
termination of this Agreement. This Section 9.2 shall not
limit any covenant or agreement contained in this Agreement that
by its terms is to be performed in whole or in part after the
Effective Time.
Section
9.3
Notices
.
All
notices, consents and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been
duly given upon receipt,
provided
that any notice
received on any Business Day after 5:00 p.m., local time,
or on any non-Business Day, shall be deemed to have been
received at 9:00 a.m., local time, on the next Business
Day) by hand delivery, by prepaid overnight courier (providing
written proof of delivery), by confirmed facsimile transmission
or by certified or registered mail (return receipt requested and
first class postage prepaid), addressed as follows:
(a) if to Parent or Merger Sub, to:
Swenson Granite Company, LLC
369 North State Street
Concord, NH 03301
Facsimile:
(603) 227-9541
President and Chief Executive Officer
with a copy (which shall not constitute notice) to:
Sheehan Phinney Bass + Green PA
1000 Elm Street
Manchester, NH 03101
Facsimile:
(603) 641-2340
Attention: Alan L. Reische
(b) if to the Company, to:
Rock of Ages Corporation
560 Graniteville Road
Graniteville, Vermont 05654
Facsimile:
(802) 476-2210
|
|
|
|
Attention:
|
James L. Fox, Chairman of the Special Committee
|
of the Board of Directors
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
Boston, Massachusetts 02108
Facsimile:
(617) 573-4822
Attention: Kent A. Coit
A-34
and to:
McLane Graf Raulerson & Middleton, Professional
Association
900 Elm Street
P.O. Box 326
Manchester, NH
03105-0326
Facsimile:
(603) 625-5650
Attention: Michael B. Tule
or to such other address or facsimile number for a party as
shall be specified in a notice given in accordance with this
Section 9.3.
Section
9.4
Interpretation
.
The
parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any
provisions of this Agreement. The inclusion of any item in the
Disclosure Schedule shall not be deemed to be an admission or
evidence of materiality of such item, nor shall it establish any
standard of materiality for any purpose whatsoever.
Section
9.5
Counterparts
.
This
Agreement may be executed in multiple counterparts, each of
which when executed and delivered shall be deemed to be an
original but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile or other means of
electronic transmission shall be as effective as delivery of a
manually executed counterpart.
Section
9.6
Entire
Agreement; Third-Party Beneficiaries
.
This
Agreement (including the Disclosure Schedule and the exhibits,
annexes and instruments referred to herein) and the
Confidentiality Agreement (a) constitute the entire
agreement and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the
subject matter hereof and (b) except for (i) the
rights of the Companys shareholders to receive the Merger
Consideration and the holders of the Company Options to receive
the consideration described in Section 3.4 following the
Effective Time, (ii) subject to the limitation set forth in
Section 9.12 and Section 8.2(e), if applicable, the
right of the Company, on behalf of its shareholders and the
holders of the Company Options, to pursue specific performance
as set forth in Section 9.12 or, if specific performance is
not sought or not granted as a remedy, damages (which damages
the parties agree may be based upon a decrease in share value or
lost premium) in the event of Parents or Merger Subs
breach of this Agreement or fraud, which right is hereby
acknowledged and agreed by Parent and Merger Sub, and
(iii) as provided in Section 6.5 (which is intended
for the benefit of the Insured Parties and the Indemnified
Parties, all of whom shall be third-party beneficiaries of
Section 6.5), are not intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder.
Section
9.7
No
Other Representations and Warranties; Prior
Investigation
.
(a) Parent has conducted its own independent review and
analysis of the businesses, assets, condition, operations and
prospects of the Company and its Subsidiaries and acknowledges
that it has been provided access to the properties, premises and
records of the Company and its Subsidiaries for this purpose.
Except for the representations and warranties of the Company
expressly set forth in ARTICLE IV, none of the Company or
its Subsidiaries nor any of their respective Representatives
makes any representation or warranty, either express or implied,
as to the Company or its Subsidiaries or as to the accuracy or
completeness of any of the information provided or made
available to Parent or any of its Representatives. Without
limiting the generality of the foregoing, none of the Company or
its Subsidiaries nor any of their respective Representatives or
any other Person has made a representation or warranty with
respect to (i) any projections, estimates, forecasts or
budgets for the Company or its Subsidiaries or (ii) any
material, documents or information relating to the Company or
its Subsidiaries made available to Parent or its Representatives
in any data room, confidential memorandum, other
offering materials or otherwise, except as expressly and
specifically covered by a representation or warranty set forth
in ARTICLE IV.
A-35
(b) In connection with Parents investigation of the
Company, Parent has received from the Company and its
Representatives certain projections and other forecasts as well
as operational and strategic information, including projected
financial statements, cash flow items and other data of the
Company and its Subsidiaries and certain business plan
information of the Company and its Subsidiaries. Parent, on
behalf of itself and Merger Sub, acknowledges that there are
uncertainties inherent in attempting to make such projections
and other forecasts and plans and accordingly is not relying on
them, that Parent is familiar with such uncertainties, that on
behalf of itself and Merger Sub Parent is taking full
responsibility for making its own evaluation of the adequacy and
accuracy of all projections and other forecasts and plans so
furnished to it and that each of Parent and Merger Sub and their
respective Representatives shall have no claim against any
Person with respect thereto.
Section
9.8
Severability
.
If
any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable, such term, provision,
covenant or restriction shall be deemed to be modified to the
extent necessary to render it valid, effective and enforceable,
and the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section
9.9
Governing
Law
.
This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware
applicable to contracts to be made and performed entirely
therein without giving effect to the principles of conflicts of
law thereof or of any other jurisdiction except that the Merger
and the effects thereof and other matters to which the VBCA
applies shall be governed by VBCA.
Section
9.10
Jurisdiction
.
Each
of the parties hereto hereby (a) expressly and irrevocably
submits to the exclusive personal jurisdiction of any United
States federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this
Agreement or the transactions contemplated hereby,
(b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from
any such court and (c) agrees that it will not bring any
action relating to this Agreement or the transactions
contemplated hereby in any court other than a United States
federal or state court sitting in the State of Delaware;
provided
,
however
, that each of the parties shall
have the right to bring any action or proceeding for enforcement
of a judgment entered by any United States federal court located
in the State of Delaware or any Delaware state court in any
other court or jurisdiction.
Section
9.11
Service
of Process
.
Each party irrevocably consents
to the service of process outside the territorial jurisdiction
of the courts referred to in Section 9.10 in any such
action or proceeding by mailing copies thereof by registered
United States mail, postage prepaid, return receipt requested,
to its address as specified in or pursuant to Section 9.3.
However, the foregoing shall not limit the right of a party to
effect service of process on the other party by any other
legally available method.
Section
9.12
Specific
Performance
.
Parent and Merger Sub
acknowledge and agree that, in the event of any breach of this
Agreement by Parent or Merger Sub, the Company and the Persons
described in Section 9.6 would be irreparably and
immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that (a) Parent and
Merger Sub will, and hereby do, waive, in any action for
specific performance, the defense of adequacy of a remedy at law
and any other objections to specific performance of this
Agreement and (b) the Company, on its behalf and on behalf
of the Persons described in Section 9.6, shall be entitled,
in addition to any other remedy to which they may be entitled at
law or in equity, to compel specific performance to prevent or
restrain breaches or threatened breaches of this Agreement in
any action instituted in accordance with Section 9.10.
Notwithstanding the foregoing or any other provisions of this
Agreement, the parties hereto acknowledge and agree that the
Company shall not, either on its behalf or on behalf of the
Persons described in Section 9.6, be entitled to enforce
specifically the obligations of Parent to consummate the Merger
and the other transactions contemplated by this Agreement in the
event that the Company is entitled to and receives the
Termination Fee.
Section
9.13
Assignment
.
Neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding
sentence, this Agreement will be
A-36
binding upon, inure to the benefit of and be enforceable by the
parties and their respective permitted successors and assigns.
Section
9.14
Expenses
.
Except
as otherwise set forth herein, all costs and expenses incurred
in connection with this Agreement and the consummation of the
Merger and the other transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or
not the Merger is consummated.
Section
9.15
Headings
.
Headings
of the articles and sections of this Agreement and the table of
contents, schedules, annexes and exhibits are for convenience of
the parties only and shall be given no substantive or
interpretative effect whatsoever.
Section
9.16
Waivers
.
Any
failure of any of the parties hereto to comply with any
obligation, covenant, agreement or condition herein may be
waived by the party or parties entitled to the benefits thereof
only by a written instrument signed by the party granting such
waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
[Remainder
of page intentionally left blank.]
[Signature
Page Follows]
A-37
IN WITNESS WHEREOF, each of the Company, Parent and Merger Sub
has caused this Agreement to be signed by its duly authorized
officer as of the date first written above.
ROCK OF AGES CORPORATION
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By:
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/s/ Donald
M. Labonte
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Name: Donald M. Labonte
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Title:
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President and Chief Executive Officer
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SWENSON GRANITE COMPANY LLC
Name: Kurt M. Swenson
GRANITE ACQUISITION, LLC
Name: Kurt M. Swenson
A-38
Annex B
VOTING AGREEMENT
This VOTING AGREEMENT (this
Agreement
) is
made and entered into as of October 18, 2010 , by and
between Swenson Granite Company LLC, a Delaware limited
liability company
(Parent),
and the
undersigned stockholder
(Stockholder)
of Rock
of Ages Corporation
(Company)
.
RECITALS
A. This Agreement is entered into in connection with that
certain Agreement and Plan of Merger dated as of even date
herewith, as amended from time to time (the
Merger
Agreement
), by and among the Company, Parent and
Granite Acquisition, LLC
(Merger Sub),
pursuant to which Merger Sub will merge with and into the
Company, the separate limited liability company existence of
Merger Sub will cease, and the Company will continue as the
surviving corporation as a wholly-owned subsidiary of Parent,
all upon and subject to the terms and conditions of the Merger
Agreement (the
Merger
). Capitalized terms
that are used in this Agreement which are not otherwise defined
herein will have the meanings given such terms in the Merger
Agreement. This Agreement shall take effect only upon the date
of execution of the Merger Agreement (the
Effective
Date
).
B. As of the Effective Date, Stockholder owns (including
shares held both beneficially and of record and other shares
held either beneficially or of record) the number of shares of
the Class A Common Stock
and/or
Class B Common Stock of the Company set forth below
Stockholders name on the signature page of this Agreement
(all such shares, together with any shares of capital stock of
the Company that may hereafter be acquired by Stockholder, being
collectively referred to herein as the
Subject
Shares
).
C. Stockholder is entering into this Agreement in
connection with, and as a material inducement to, the entry into
the Merger Agreement by Parent.
AGREEMENT
The parties to this Agreement, intending to be legally bound,
agree as follows:
1.
TRANSFER OF SUBJECT SHARES.
1.1
NO DISPOSITION OR ENCUMBRANCE OF SUBJECT
SHARES.
Stockholder agrees with Parent that,
prior to the Expiration Date (as defined below), Stockholder
will not, directly or indirectly, sell, transfer, exchange,
pledge, encumber or otherwise dispose of, or in any other way
reduce Stockholders risk of ownership or investment in, or
make any offer or agreement relating to any of the foregoing
with respect to, any Subject Shares;
provided
,
however
, that notwithstanding the foregoing, Stockholder
may transfer all or any portion of the Subject Shares
(a) by will or intestacy, (b) to Stockholders
members, partners, affiliates or immediate family members
(including Stockholders spouse, lineal descendants,
father, mother, brother, sister or first cousin, and father,
mother, brother or sister of Stockholders spouse),
(c) to Parent or any parent, subsidiary or affiliate of
Parent, or (d) to a trust, the beneficiaries of which are
such Stockholder
and/or
members of Stockholders immediate family;
provided
,
further
, that the donee or transferee agrees in a writing
reasonably satisfactory to Parent to be bound by the
restrictions set forth in this Agreement in the same manner as
Stockholder. As used herein, the term
Expiration
Date
means the earlier to occur of (i) such time
as the Merger Agreement is terminated in accordance with its
terms, (ii) the Effective Time (as defined in the Merger
Agreement), or (iii) the date of execution of a written
agreement by both Parent and Stockholder to terminate this
Agreement. Any sale, transfer, exchange, pledge, encumbrance or
other disposition in violation of this Section 1.1 shall be
void ab initio.
1.2
TRANSFER OF VOTING
RIGHTS.
Stockholder agrees that, prior to the
Expiration Date, Stockholder will not deposit any of the Subject
Shares into a voting trust or grant a proxy or enter into an
agreement or understanding of any kind with any person with
respect to the voting of any of the Subject
B-1
Shares, except in connection with a vote to approve the
transaction contemplated by the Merger Agreement in accordance
with Section 2.
2.
VOTING OF SUBJECT SHARES.
2.1
VOTE FOR MERGER.
Stockholder
agrees that, prior to the Expiration Date and subject to the
terms hereof, at any meeting of the stockholders of the Company,
however called, and in any action taken by the written consent
of stockholders of the Company without a meeting, Stockholder
will appear and vote or grant a proxy to vote, or execute a
written consent with respect to, the Subject Shares:
(i) in favor of the Merger, the execution, delivery
and performance by the Company of the Merger Agreement and the
adoption and approval of the terms thereof and in favor of each
of the other actions and agreements contemplated by the Merger
Agreement and any action reasonably requested by Parent in
furtherance of the foregoing; and
(ii) against (A) any Acquisition Proposal
involving the Company (other than the Merger) or any other
action or agreement that would result in a breach of any
covenant, representations or warranty or other obligation or
agreement of the Company under the Merger Agreement or which
could result in any of the conditions to the Companys
obligations under the Merger Agreement not being fulfilled (an
Alternative Transaction
), (B) any
reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any of its Subsidiaries, and
(C) any other action, agreement or transaction involving
the Company (or any subsidiary thereof) that is intended, or
would reasonably be expected to, materially impede, interfere
with or prevent the consummation of the Merger or the any other
transactions contemplated by the Merger Agreement or this
Agreement. Stockholder shall not commit or agree to take any
action inconsistent with the foregoing. Stockholder acknowledges
receipt and review of a copy of the Merger Agreement.
2.2
GRANT OF PROXY.
In the event
that Stockholder breaches or threatens to breach any provision
of this Agreement, then Parent shall have, and in such event
Stockholder grants to Parent, an irrevocable proxy to vote or
give consent or approval (including giving a written consent) in
respect of the Subject Shares, for and in the name, place and
stead of Stockholder, in accordance with this Section 2,
revoking all other proxies in respect of the Subject Shares.
Such proxy shall be deemed coupled with an interest under this
Agreement and shall be irrevocable, and Stockholder shall be
deemed to ratify and confirm any action taken by Parent pursuant
to such proxy. Parent may not exercise such proxy on any other
matter except as specified above.
2.3
NO CONFLICTING
AGREEMENTS.
Prior to the Expiration Date,
Stockholder will not enter into any agreement or understanding
with any Person to vote or give instructions in any manner
inconsistent with the provisions of this Section 2.
Stockholder shall not, among other things, enter into any
agreement that would disable or restrict his legal power,
authority and right to vote all of the Subject Shares as
provided in this Agreement, other than as specifically
contemplated in Section 2.2 above.
2.4
STOCKHOLDER CAPACITY
ONLY.
Stockholder (as applicable) makes no
agreement or understanding herein as a director of the Company.
Stockholder is entering into this Agreement solely in his or her
capacity as a record or beneficial owner, as applicable, of the
Subject Shares, and nothing herein shall be deemed to limit or
affect any actions taken in his capacity as a director or
officer of the Company. No actions taken by Stockholder, or
failure by Stockholder to take any actions, in his or her
capacity as a director or officer of the Company shall be deemed
to constitute a breach of this Agreement.
3.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
STOCKHOLDER.
Stockholder hereby represents,
warrants and covenants as follows:
3.1
AUTHORITY,
ENFORCEABILITY.
Stockholder has full power and
authority to enter into, execute, deliver and perform
Stockholders obligations under this Agreement and to make
the representations, warranties and covenants contained herein,
and that all corporate or similar action required for the
authorization, execution, delivery and the performance of all
obligations of Stockholder under this Agreement and the
agreements contemplated hereby have been obtained. This
Agreement has been duly executed and delivered by Stockholder
and constitutes a legal, valid and binding obligation of
B-2
Stockholder, enforceable against Stockholder in accordance with
its terms. The execution and delivery of this Agreement and the
performance by Stockholder of his or her obligations hereunder
will not result in any breach or violation of or be in conflict
with or constitute a default under any agreement, judgment,
order, injunction, law or regulation to which Stockholder is a
party or by which the Subject Shares are bound.
3.2
SUBJECT SHARES OWNED.
As
of the Effective Date of this Agreement, Stockholder owns in the
aggregate (including shares held both beneficially and of record
and other shares held either beneficially or of record) the
number of shares of the Company capital stock set forth below
Stockholders name on the signature page of this Agreement,
free and clear from any encumbrance, and does not directly or
indirectly own, either beneficially or of record, any shares of
capital stock of the Company, or rights to acquire any shares of
capital stock of the Company, or other securities of the
Company, other than the Subject Shares set forth below
Shareholders name on the signature page hereof. If
Stockholder is a beneficial owner but not the record holder of
the Subject Shares, Stockholder agrees to take all actions
necessary to cause the record holder to vote all of the Subject
Shares in accordance with Section 2. Stockholder agrees to
notify Parent promptly of any additional shares of capital stock
of the Company that Stockholder becomes the record or beneficial
owner of after the date of this Agreement, all of which shall be
covered by this Agreement and be Subject Shares.
3.3
FURTHER ASSURANCES.
Stockholder
agrees to execute and deliver to Parent any additional documents
and instruments, and take such actions, as are reasonably
necessary to carry out the purposes and intent of this Agreement.
3.4
RELIANCE BY PARENT.
Stockholder
understands and acknowledges that Parent is entering into the
Merger Agreement in reliance upon the execution and delivery of
this Agreement by Stockholder and the representations and
warranties of Stockholder contained herein.
4.
SCHEDULE 13D
MATTERS.
Stockholder acknowledges and agrees
that, by the execution and delivery of this Agreement in
connection with the execution and delivery by Parent of the
Merger Agreement, he or she may be deemed to be a member of a
group, as that term is used in
Rule 13d-5(b)
under the Securities Exchange Act of 1934, as amended (the
Exchange Act
) with Parent and certain other
persons (the
Swenson Granite Group
) for
purposes of compliance with the reporting requirements of
Section 13(d) of the Exchange Act. In accordance with
Rule 13d-1(k)
under the Exchange Act, Stockholder agrees to the filing on
behalf of him- or herself of an amendment to the Statement on
Schedule 13D filed on May 12, 2010 (the
Swenson Granite Group 13D
) by Parent and
other members of the Swenson Granite Group to report (among
other things) the accession of the Stockholder to the Swenson
Granite Group. Stockholder hereby grants the following power of
attorney in connection with the Swenson Granite Group 13D:
POWER OF
ATTORNEY
The undersigned does hereby appoint Kurt M. Swenson his or its
true and lawful attorney-in-fact, for the purpose of, from time
to time, executing in his or its name and on his or its behalf,
any and all amendments to the Statement on Schedule 13D
filed by Swenson Granite Company LLC and the group including the
same with respect to the Common Stock of Rock of
Ages Corporation (the
Company
), which
such attorney-in-fact shall determine to be necessary or
appropriate to comply with the reporting requirements of
Section 13(d) of the Securities Exchange Act of 1934, as
amended, and filing the same with the U.S. Securities and
Exchange Commission and the Company on behalf of the
undersigned, and delivering, furnishing or filing any such
documents as exhibits thereto, and giving and granting to such
attorney-in-fact the power and authority to act in the premises
as fully and to all intents and purposes as the undersigned
might or could do if personally present, hereby ratifying and
confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof. Any such determination by the
attorney-in-fact shall be conclusively evidenced by such
persons execution, delivery, furnishing or filing of the
applicable document. This power of attorney shall remain in
effect until expressly revoked in writing by the undersigned.
B-3
5.
MISCELLANEOUS.
5.1
SEVERABILITY.
If any provision
of this Agreement, or the application thereof, will for any
reason and to any extent be invalid or unenforceable, the
remainder of this Agreement and application of such provision to
other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto.
5.2
AMENDMENT AND WAIVER.
This
Agreement or any provision hereof may be amended, modified,
superseded, canceled, renewed, waived or extended only by an
agreement in writing executed by Parent and Stockholder. The
waiver by a party of any breach hereof or default in the
performance hereof will not be deemed to constitute a waiver of
any other default or any succeeding breach or default.
5.3
ASSIGNMENT.
This Agreement and
all rights and obligations hereunder may not be transferred or
assigned by Parent or Stockholder at any time without the prior
written consent of Parent and Stockholder;
provided
,
however
, that Stockholder may transfer or assign this
Agreement and all rights and obligations hereunder under the
conditions set forth in Section 1.1 without the prior
written consent of Parent. This Agreement will be binding upon,
and inure to the benefit of, the persons or entities who are
permitted, by the terms of this Agreement, to be successors,
assigns and personal representatives of the respective parties
hereto.
5.4
GOVERNING LAW.
The validity,
interpretation and enforcement of this Agreement will be
governed by and construed in accordance with the internal laws
of the State of Vermont, excluding that body of laws pertaining
to conflict of laws.
5.5
CONSENT TO JURISDICTION; VENUE;
WAIVER.
In any action or proceeding between any
of the parties arising out of or relating to this Agreement,
each of the parties irrevocably and unconditionally consents and
submits to the exclusive jurisdiction and venue of the state
courts of the State of Vermont and to the United States District
Court for the District of Vermont, and agrees that all claims in
respect of such action or proceeding may be heard and determined
exclusively in any Vermont state or federal court sitting in the
State of Vermont. PARENT AND STOCKHOLDER HEREBY IRREVOCABLY
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER SOUNDING IN TORT, CONTRACT, OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ACTIONS OF PARENT OR STOCKHOLDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
5.6
COSTS OF ENFORCEMENT.
If any
party to this Agreement seeks to enforce its rights under this
Agreement by legal proceedings or otherwise, the non-prevailing
party will pay all costs and expenses incurred by the prevailing
party, including, without limitation, all reasonable
attorneys and experts fees.
5.7
COUNTERPARTS.
This Agreement
may be executed in counterparts, each of which will be deemed an
original but all of which, taken together, constitute one and
the same agreement.
5.8
CERTAIN ADJUSTMENTS.
In the
event of a stock split, stock dividend or distribution, or any
change in the Companys common stock by reason of a stock
split, reverse stock split, recapitalization, combination,
reclassification, readjustment, exchange of shares or the like,
the term Subject Shares shall be deemed to refer to
and include such shares as well as all such stock dividends and
distributions and any securities into which or for which any or
all of such shares may be changed or exchanged or which are
received in the transaction.
5.9
WAIVER OF APPRAISAL
RIGHTS.
Stockholder hereby irrevocably waives any
and all rights he or she may have as to appraisal, dissent or
any similar or related matter with respect to any of the Subject
Shares that may arise with respect to the Merger or any of the
transactions contemplated by the Merger Agreement, including,
without limitation, under 13.21 of the Vermont Business
Corporation Act, as amended.
5.10
ENTIRE AGREEMENT;
TERMINATION.
This Agreement and the documents
referred to herein constitute the entire agreement and
understanding of the parties with respect to the subject matter
of this Agreement, and supersede all prior understandings and
agreements, whether oral or written, between or among
B-4
the parties hereto with respect to the specific subject matter
hereof. This Agreement shall only terminate on the Expiration
Date.
5.11
SPECIFIC PERFORMANCE; INJUNCTIVE
RELIEF.
The parties hereto acknowledge that each
party will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants
or agreements set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to each
party upon any such violation, each party shall have the right
to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available
at law or in equity, without the posting of any bond.
5.12
NOTICES.
All notices,
requests, claims, demands and other communications hereunder
shall be in writing and sufficient if delivered in person, by
facsimile, or sent by overnight courier (prepaid) to the
respective parties as follows:
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If to Parent:
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Swenson Granite Company LLC
369 North State Street
Concord, NH 03301
Attention: Robert Pope, President and Chief Executive Officer
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With copy to:
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Sheehan Phinney Bass + Green PA
1000 Elm Street
Manchester, NH 03101
Attention: Alan L. Reische, Esq.
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If to Stockholder:
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To the addresses for notice set forth on the last page hereof.
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or to such other address as any party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall only be effective upon receipt.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
B-5
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the Effective Date.
STOCKHOLDER:
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(INDIVIDUAL SIGNATURE BLOCK):
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(ENTITY SIGNATURE BLOCK):
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(please print or type complete name of entity)
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(signature)
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Name:
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By:
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(please print or type full name)
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(signature)
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Name:
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(please
print or type full name)
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Title:
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(please
print or type full name)
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Class A Common Stock of the Company held directly or
indirectly (No. of Shares):
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Class B Common Stock of the Company held directly or
indirectly (No. of Shares):
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Address:
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With a copy of any notice to:
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Telephone:
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Telephone:
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Facsimile:
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Facsimile:
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SWENSON GRANITE COMPANY LLC
Name:
Title:
[SIGNATURE
PAGE TO VOTING AGREEMENT]
B-6
Affirmation
by Witness
I, the undersigned witness, witnessed the Stockholder sign this
Agreement, which includes a provision by which the Stockholder
is granting a power of attorney. I affirm that the Stockholder
appeared to me to be of sound mind and free from duress at the
time the Stockholder signed this Agreement, and the Stockholder
affirmed to me that the Stockholder was aware of the nature of
this document and signed it freely and voluntarily.
Acknowledgment
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[The witness and the notary may not be the same person.]
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State
of
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County
of
, ss.
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At ,
in said County and State,
this
day
of ,
2010, personally appeared the above-named Stockholder, who is
known to me or was otherwise suitably identified, and
he/she
acknowledged to me that the execution of this Agreement was his
or her free act and deed.
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Before me,
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Notary Public
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Print
Name:
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Commission
Expires:
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Acceptance
by Agent
The undersigned agent, Kurt M. Swenson, is executing this
Agreement solely for the purpose of attesting, with respect to
the power of attorney granted to him in this Agreement, that he:
(A) accepts the appointment as agent; (B) understands
the duties under the power of attorney and under the law;
(C) understands that he has a duty to act if expressly
required to do so in the power of attorney consistent with 14
V.S.A. § 3506(c) and other applicable laws; and
(D) understands that he is expected to use his special
skills or expertise on behalf of the principal, if so specified
in the power of attorney.
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Signed on the day
of ,
2010
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Kurt M. Swenson
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[SIGNATURE
PAGE TO VOTING AGREEMENT CONTINUED]
B-7
Annex C
CONTRIBUTION
AGREEMENT
This CONTRIBUTION AGREEMENT (the
Agreement
)
is made and entered into as of October 18, 2010, by and
between Swenson Granite Company LLC, a Delaware limited
liability company (
Parent
), and the
undersigned stockholder (
Stockholder
) of Rock
of Ages Corporation (
Company
).
RECITALS
A. This Agreement is entered into in connection with that
certain Agreement and Plan of Merger dated as of even date
herewith, as amended from time to time (the
Merger
Agreement
), by and among the Company, Parent and
Granite Acquisition, LLC (
Merger Sub
),
pursuant to which Merger Sub will merge with and into the
Company, the separate limited liability company existence of
Merger Sub will cease, and the Company will continue as the
surviving corporation as a wholly-owned subsidiary of Parent,
all upon and subject to the terms and conditions of the Merger
Agreement (the
Merger
). Capitalized terms
that are used in this Agreement which are not otherwise defined
herein will have the meanings given such terms in the Merger
Agreement. This Agreement shall take effect only upon the date
of execution of the Merger Agreement (the
Contribution Agreement Effective Date
).
B. Stockholder currently holds shares of membership
interest in Parent or is related by blood or marriage to a
holder of shares of membership interest in Parent; Stockholder
also currently owns record or beneficial title to those shares
of Class A Common Stock and Class B Common Stock of
the Company (all such shares of Stockholder, the
Company Shares
) set forth on the signature
page of this Agreement, which Stockholder has agreed to deposit
under the terms and conditions of this Agreement (following
deposit by Shareholder in accordance herewith, Company Shares
are referred to as
Deposited Company Shares
).
Shortly prior to the Effective Time of the Merger,
Stockholders Deposited Company Shares will be contributed
to Parent in consideration for the issuance to the Stockholder
of (i) a number of additional shares of membership interest
in Parent to be determined based on the Exchange Ratio set forth
in Section 1.5 of this Agreement, and (ii) an amount
of cash in lieu of fractional shares of membership interest in
Parent as is determined in accordance with Section 1.5 of
this Agreement.
C. Stockholder is entering into this Agreement in
connection with, and as a material inducement to, Parent
entering into the Merger Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound,
agree as follows:
1.
AUTHORIZATION AND SALE OF SHARES.
1.1
AUTHORIZATION.
Parent has duly
authorized and taken, or will prior to the Exchange Effective
Time (as defined in Section 1.5 below) have duly authorized
and taken, all such limited liability company action and other
action as is necessary for (i) the issuance, sale and
delivery, pursuant to the terms of this Agreement and other
similar Contribution Agreements between Parent and certain other
holders of shares of Class A Common Stock
and/or
Class B Common Stock of the Company, of shares of
membership interest in Parent (shares of membership interest in
Parent are referred to herein as
Parent
Shares
), and (ii) the payment of cash in lieu of
fractional shares of membership interest in Parent pursuant to
the terms of this Agreement and other similar Contribution
Agreements between Parent and certain other holders of shares of
Class A Common Stock
and/or
Class B Common Stock of the Company.
1.2
DEPOSIT OF COMPANY SHARES.
No later
than thirty (30) calendar days after the Contribution
Agreement Effective Date, Stockholder and any agent of
Stockholder holding certificates evidencing Company Shares
(including without limitation any broker holding securities in
street name) shall deliver or cause to be delivered
one or more certificates representing the Company Shares to
Parent, duly endorsed for transfer or together with duly
executed stock powers both reasonably acceptable in form to
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Parent and sufficient to transfer the same to Parent for
disposition in accordance with the terms of this Agreement. Such
Company Shares shall be held by Parent or any agent duly
authorized by Parent in accordance with the terms of this
Agreement.
1.3
POWER OF ATTORNEY.
Stockholder hereby
irrevocably constitutes and appoints Robert Pope, President and
Chief Executive Officer of Parent, and any individual who shall
hereafter succeed such person as Chief Executive Officer of
Parent, and any other person designated in writing by Parent
from time to time, each of them individually, as its true and
lawful attorney-in-fact (the
Attorney
)
with full power to act alone and of substitution and
resubstitution, and with full power in the name of, for and on
behalf of Stockholder, with respect to all matters arising in
connection with the Merger
and/or
the
Exchange, to (a) vote or execute written consents with
respect to the Deposited Company Shares in accordance with the
Voting Agreement dated as of even date herewith between Parent
and Stockholder, (b) sell and deliver to the Parent the
Deposited Company Shares as part of the Exchange in return for
the consideration set forth in Section 1.5 below, and
(c) make, execute, acknowledge and deliver all such other
contracts, stock powers, receipts, certificates, letters and
other writings, and in general to do all things and to take all
actions which the Attorney, in his sole discretion, may consider
necessary or proper in connection with or to carry out his
powers with regard to parts (a) and (b) of this
sentence. The Attorney is empowered to determine the time or
times when, purpose for, and manner in which any power herein
conferred upon him shall be exercised, and the parties hereto
acknowledge that Robert Pope is an officer of the Parent. The
power of attorney granted herein is an agency coupled with an
interest and all authority conferred hereby shall be
irrevocable, and shall not be terminated by any act of any of
the undersigned or by operation of law, whether by the death or
incapacity of any of the undersigned or by the occurrence of any
other event or events; notwithstanding the foregoing, the power
of attorney granted herein shall terminate upon the termination
of this Agreement in accordance with Section 3.9 below.
1.4
COVENANT REGARDING TRANSFER OF COMPANY
SHARES.
Stockholder agrees with Parent that,
prior to the Expiration Date (as defined below), Stockholder
will not, other than as contemplated herein, directly or
indirectly, sell, transfer, exchange, pledge, encumber or
otherwise dispose of, or in any other way reduce
Stockholders risk of ownership or investment in, or make
any offer or agreement relating to any of the foregoing with
respect to, any Deposited Company Shares;
provided,
however,
that notwithstanding the foregoing, Stockholder may
transfer all or any portion of the Deposited Company Shares
(a) by will or intestacy, (b) to Stockholders
members, partners, affiliates or immediate family members
(including Stockholders spouse, lineal descendants,
father, mother, brother, sister or first cousin, and father,
mother, brother or sister of Stockholders spouse),
(c) to Parent or any parent, subsidiary or affiliate of
Parent, or (d) to a trust, the beneficiaries of which are
such Stockholder
and/or
members of Stockholders immediate family;
provided,
further,
that the donee or transferee agrees, in a writing
reasonably satisfactory in form and content to Parent, to be
bound by the restrictions set forth in this Agreement, and to
grant the powers granted to Attorney herein, in the same manner
as Stockholder. Any sale, transfer, exchange, pledge,
encumbrance or other disposition in violation of this
Section 1.4 shall be void ab initio.
1.5
TRANSFER OF COMPANY SHARES.
Effective
as of 5:00 p.m. Eastern (U.S.) Time on the Business Day
immediately preceding the day on which the Effective Time shall
occur (the
Exchange Effective Time
),
Stockholder shall, through and by the Attorney, sell, assign and
convey to Parent all of his or her right, title and interest in
and to the Company Shares set forth on the signature page
hereof, in consideration of the issuance and payment (the
Exchange
) to Stockholder of (i) a number
of Parent Shares to be determined by multiplying each Company
Share being sold, assigned and conveyed by a fraction, the
numerator of which shall be the Merger Consideration and the
denominator of which shall be $18,241.30 (such fraction, the
Exchange Ratio
), and rounding the result down
to the nearest whole integer, and (ii) an amount of cash in
lieu of issuance of any fractional share that would otherwise be
issued pursuant to part (i) of this sentence, calculated
pursuant to the provisions of the last sentence of this Section
1.5. Upon issuance of the Parent Shares in the Exchange to the
Stockholder, such Parent Shares shall be fully-paid and duly and
validly issued to Stockholder. From and after the Exchange
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Effective Time, the Stockholder shall be considered a
Shareholder as defined in the Amended and Restated Limited
Liability Company Agreement of Parent dated as of July 27,
2010, as amended (the
LLC Agreement
)
for all purposes thereunder. Notwithstanding anything to the
contrary herein, no fraction of a Parent Share shall be issued
to Stockholder pursuant to this Agreement, but in lieu thereof
(if Stockholder would otherwise be entitled to a fraction of a
Parent Share pursuant to part (i) of the first sentence of
this Section 1.5), Stockholder shall receive from Parent an
amount of cash (rounded to the nearest whole cent) equal to the
product of (i) that fraction of a Parent Share that
Stockholder would otherwise be due multiplied by
(ii) $18,241.30.
1.6
EXCHANGE OBLIGATION
UNCONDITIONAL.
Stockholder acknowledges and
agrees that Parent is entering into the Merger Agreement in
reliance on the execution, delivery and complete performance of
this Agreement by Stockholder, and that the Company will prepare
definitive proxy materials for its shareholders based on the
representations, warranties and covenants of Stockholder
contained in this Agreement. From and after the Contribution
Agreement Effective Date of this Agreement, Stockholders
obligation to effect the Exchange at the Exchange Effective Time
shall be absolute and unconditional, and shall not be relieved
on account of any condition precedent, condition subsequent,
breach or alleged breach or non-performance by Parent or any
other party to the Merger Agreement.
1.7
AGREEMENT TO BE BOUND BY LLC
AGREEMENT.
In the event that the Stockholder is
not currently a member of the Company, then by execution of this
Agreement, the Stockholder hereby agrees to become a member of
Parent at the Exchange Effective Time, and agrees to be bound by
the terms and conditions of the LLC Agreement.
2.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
STOCKHOLDER.
Stockholder hereby represents,
warrants and covenants as follows:
2.1
AUTHORITY;
ENFORCEABILITY.
Stockholder has full power and
authority to enter into, execute, deliver and perform
Stockholders obligations under this Agreement and to make
the representations, warranties and covenants contained herein,
and that all corporate or similar action required for the
authorization, execution, delivery and the performance of all
obligations of Stockholder under this Agreement and the
agreements contemplated hereby have been obtained. This
Agreement has been duly executed and delivered by Stockholder
and constitutes a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with
its terms. The execution and delivery of this Agreement and the
performance by Stockholder of his obligations hereunder will not
result in any breach or violation of, or be in conflict with or
constitute a default under, or result in the imposition or any
lien or security interest under, any agreement, judgment, order,
injunction, law or regulation to which Stockholder is a party or
by which the Deposited Company Shares are bound.
2.2
SUBJECT SHARES OWNED.
As of the
Contribution Agreement Effective Date, Stockholder owns in the
aggregate (including shares held both beneficially and of record
and other shares held either beneficially or of record) the
number of shares of the Company capital stock set forth below
Stockholders name on the signature page of this Agreement,
free and clear from any lien, claim or other encumbrance. If
Stockholder is a beneficial owner but not the record holder of
the Deposited Company Shares, Stockholder agrees to take all
actions necessary to cause the record holder to deliver to
Parent record and beneficial title to all of the Deposited
Company Shares in accordance with Section 1.
2.3
FURTHER ASSURANCES.
Stockholder
agrees to execute and deliver to Parent any additional documents
and instruments, and take such actions, as are reasonably
necessary to carry out the purposes and intent of this Agreement.
3.
MISCELLANEOUS.
3.1
SEVERAL AGREEMENTS.
This Agreement,
by and between Parent and Stockholder, represents one of several
such contribution agreements between Parent and certain persons
who own of record or beneficially Company Shares. Each such
contribution agreement shall be a several obligation of
Stockholder and Parent, and the execution and delivery,
performance or termination of this Agreement shall not be
subject to or
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conditioned upon the execution and delivery, performance or
termination by any other person of the terms of any such other
contribution agreement.
3.2
SEVERABILITY.
If any provision of
this Agreement, or the application thereof, will for any reason
and to any extent be invalid or unenforceable, the remainder of
this Agreement and application of such provision to other
persons or circumstances will be interpreted so as reasonably to
effect the intent of the parties hereto.
3.3
AMENDMENT AND WAIVER.
This Agreement
or any provision hereof may be amended, modified, superseded,
canceled, renewed, waived or extended only by an agreement in
writing executed by Parent and Stockholder. The waiver by a
party of any breach hereof or default in the performance hereof
will not be deemed to constitute a waiver of any other default
or any succeeding breach or default.
3.4
ASSIGNMENT.
This Agreement and all
rights and obligations hereunder may not be transferred or
assigned by Parent or Stockholder at any time without the prior
written consent of Parent and Stockholder;
provided
,
however
, that Stockholder may transfer or assign this
Agreement and all rights and obligations hereunder under the
conditions set forth in Section 1.4. This Agreement will be
binding upon, and inure to the benefit of, the persons or
entities who are permitted, by the terms of this Agreement, to
be successors, assigns and personal representatives of the
respective parties hereto.
3.5
GOVERNING LAW.
The validity,
interpretation and enforcement of this Agreement will be
governed by and construed in accordance with the internal laws
of the State of Vermont, excluding that body of laws pertaining
to conflict of laws.
3.6
CONSENT TO JURISDICTION; VENUE;
WAIVER.
In any action or proceeding between any
of the parties arising out of or relating to this Agreement,
each of the parties irrevocably and unconditionally consents and
submits to the exclusive jurisdiction and venue of the state
courts of the State of Vermont and to the United States District
Court for the District of Vermont, and agrees that all claims in
respect of such action or proceeding may be heard and determined
exclusively in any Vermont state or federal court sitting in the
State of Vermont. PARENT AND STOCKHOLDER HEREBY IRREVOCABLY
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER SOUNDING IN TORT, CONTRACT, OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ACTIONS OF PARENT OR STOCKHOLDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
3.7
COSTS OF ENFORCEMENT.
If any party to
this Agreement seeks to enforce its rights under this Agreement
by legal proceedings or otherwise, the non-prevailing party will
pay all costs and expenses incurred by the prevailing party,
including, without limitation, all reasonable attorneys
and experts fees.
3.8
COUNTERPARTS.
This Agreement may be
executed in counterparts, each of which will be deemed an
original but all of which, taken together, constitute one and
the same agreement.
3.9
ENTIRE AGREEMENT; TERMINATION.
This
Agreement and the documents referred to herein constitute the
entire agreement and understanding of the parties with respect
to the subject matter of this Agreement, and supersede all prior
understandings and agreements, whether oral or written, between
or among the parties hereto with respect to the specific subject
matter hereof. This Agreement shall only terminate on the
Expiration Date
, which shall be the earlier
to occur of (i) such time as the Merger Agreement is
terminated in accordance with its terms, (ii) the Effective
Time (as defined in the Merger Agreement), or (iii) the
date of execution of a written agreement by both Parent and
Stockholder explicitly terminating this Agreement.
3.10
SPECIFIC PERFORMANCE; INJUNCTIVE
RELIEF.
The parties hereto acknowledge that each
party will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants
or agreements set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to each
party upon any such violation, each party shall have the right
to enforce such
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covenants and agreements by specific performance, injunctive
relief or by any other means available at law or in equity,
without the posting of any bond.
3.11
NOTICES.
All notices, requests,
claims, demands and other communications hereunder shall be in
writing and sufficient if delivered in person, by facsimile, or
sent by overnight courier (prepaid) to the respective parties as
follows:
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If to Parent:
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Swenson Granite Company LLC
369 North State Street
Concord, NH 03301
Attention: Robert Pope, President and Chief Executive Officer
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With copy to:
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Sheehan Phinney Bass + Green PA
1000 Elm Street
Manchester, NH 03101
Attention: Alan L. Reische, Esq.
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If to Stockholder:
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To the addresses for notice set forth on the last page hereof.
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or to such other address as any party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall only be effective upon receipt.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the Contribution Agreement Effective Date.
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STOCKHOLDER:
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(INDIVIDUAL SIGNATURE BLOCK):
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(ENTITY SIGNATURE BLOCK):
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(please print or type complete name of entity)
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(signature)
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Name:
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By:
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(please print or type full
name)
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(signature)
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Name:
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(please print or type full name)
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Title:
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(please print or type full name)
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Class A Common Stock of the Company held directly or
indirectly (No. of Shares):
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Class B Common Stock of the Company held directly or
indirectly (No. of Shares):
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Class A Common Stock of the Company held directly or
indirectly (No. of Shares) to be converted:
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Class B Common Stock of the Company held directly or
indirectly (No. of Shares) to be converted:
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Address:
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With a copy of any notice to:
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Telephone:
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Telephone:
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Facsimile:
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Facsimile:
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SWENSON GRANITE COMPANY LLC
Name:
Title:
[SIGNATURE
PAGE TO CONTRIBUTION AGREEMENT]
C-6
Affirmation
by Witness
I, the undersigned witness, witnessed the Stockholder sign this
Agreement, which includes a provision by which the Stockholder
is granting a power of attorney. I affirm that the Stockholder
appeared to me to be of sound mind and free from duress at the
time the Stockholder signed this Agreement, and the Stockholder
affirmed to me that the Stockholder was aware of the nature of
this document and signed it freely and voluntarily.
Witness
Print
Name:
Acknowledgment
[The witness and the notary may not be the same person.]
State of
County of
, ss.
At ,
in said County and State, this day
of ,
2010, personally appeared the above-named Stockholder, who is
known to me or was otherwise suitably identified, and
he/she
acknowledged to me that the execution of this Agreement was his
or her free act and deed.
Before me,
Notary Public
Print Name:
Commission
Expires:
Acceptance
by Agent
The undersigned agent, Kurt M. Swenson, is executing this
Agreement solely for the purpose of attesting, with respect to
the power of attorney granted to him in this Agreement, that he:
(A) accepts the appointment as agent; (B) understands
the duties under the power of attorney and under the law;
(C) understands that he has a duty to act if expressly
required to do so in the power of attorney consistent with 14
V.S.A. § 3506(c) and other applicable laws; and
(D) understands that he is expected to use his special
skills or expertise on behalf of the principal, if so specified
in the power of attorney.
Signed on the day
of ,
2010
Kurt M. Swenson
[SIGNATURE
PAGE TO CONTRIBUTION AGREEMENT, CONTINUED]
C-7
Opinion of
Covington Associates, LLC
October 15, 2010
Special Committee of
the Board of
Directors of Rock of
Ages Corporation
Board of Directors
of Rock of Ages Corporation
560 Graniteville Road
Graniteville, VT
05654
Gentlemen and Madam:
We understand that
Swenson Granite Company LLC (Acquiror) and Rock of
Ages Corporation (the Company) propose to enter
into a definitive merger agreement (the Merger
Agreement) pursuant to which, among other things, Acquiror
will pay or cause to be paid, in cash, $5.25 for each share of
common stock of the Company (the Common Stock)
issued and outstanding immediately prior to the effective time
described in the Merger Agreement, in cancellation of such
shares (the Transaction). Notwithstanding the
foregoing, shares of Common Stock owned by Acquiror or any
direct or indirect wholly-owned subsidiary of Acquiror or by any
holder who is entitled to demand and properly demands and
perfects such holders appraisal rights will not be
entitled to such consideration. We understand that prior to the
closing of the Transaction under the Merger Agreement, certain
outstanding shares of Common Stock held by specified
stockholders who are members of the Acquiror will be exchanged
for shares of membership interest in the Acquiror and will not
be entitled to such cash merger consideration. The cash merger
consideration payable pursuant to the Merger Agreement as
aforesaid is referred to herein as the Cash Merger
Consideration.
You have requested
that Covington Associates, LLC (Covington
Associates) provide an opinion (the Opinion)
as to whether, as of the date hereof, the Cash Merger
Consideration to be received by the holders of outstanding
Common Stock in the Transaction pursuant to the Merger Agreement
is fair to such holders from a financial point of view.
In connection with
this Opinion, we have made such reviews, analyses and inquiries
as we have deemed necessary and appropriate under the
circumstances. Among other things, we have:
1. Reviewed the
draft of the Merger Amendment received from the Company on
October 15, 2010;
2. Reviewed
certain publicly available business and financial information
relating to the Company that we deemed to be relevant;
3. Reviewed
certain information relating to the historical, current and
future operations, financial condition and prospects of the
Company made available to us by the Company, including
(a) financial projections (and adjustments thereto)
prepared by the management of the Company relating to the
Company for the fiscal years ending December 31, 2010
through December 31, 2015 (the Financial
Projections);
4. Spoken with
certain members of the management of the Company regarding the
business, operations, financial condition and prospects of the
Company, the Transaction and related matters;
5. Compared the
financial and operating performance of the Company with that of
other public companies that we deemed to be relevant;
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6. Considered
the publicly available financial terms of certain transactions
that we deemed to be relevant;
7. Reviewed the
current and historical market prices and trading volume for the
Common Stock, and the historical market prices and certain
financial data of the publicly traded securities of certain
other companies that we deemed to be relevant;
8. Conducted
such other financial studies, analyses and inquiries, including
a discounted cash flow analysis, and considered such other
information and factors as we deemed appropriate.
We have relied upon
and assumed, without independent verification, the accuracy and
completeness of all data, material and other information
furnished, or otherwise made available, to us, discussed with or
reviewed by us, or publicly available, and do not assume any
responsibility with respect to such data, material and other
information. In addition, management of the Company has advised
us, and we have assumed, that the Financial Projections reviewed
by us have been reasonably prepared in good faith on bases
reflecting the best currently available estimates and judgments
of such management as to the future financial results and
condition of the Company, and we express no opinion with respect
to such projections or the assumptions on which they are based.
We have relied upon and assumed, without independent
verification, that the historical financial statements of the
Company provided to us have been prepared in accordance with
United States generally accepted accounting principles, that
there has been no change in the business, assets, liabilities,
financial condition, results of operations, cash flows or
prospects of the Company since the date of the most recent
financial statements provided to us that would be material to
our analyses or this Opinion, and that there is no information
or any facts that would make any of the information reviewed by
us incomplete or misleading.
We have relied upon
and assumed, without independent verification, that (a) the
representations and warranties of all parties to the Merger
Agreement and all other related documents and instruments that
are referred to therein are true and correct, (b) each
party to the Merger Agreement and such other related documents
and instruments will fully and timely perform all of the
covenants and agreements required to be performed by such party,
(c) all conditions to the consummation of the Transaction
will be satisfied without waiver thereof, and (d) the
Transaction will be consummated in a timely manner in accordance
with the terms described in the Merger Agreement and such other
related documents, without any amendments or modifications
thereto. We also have relied upon and assumed, without
independent verification, that (i) the Transaction will be
consummated in a manner that complies in all respects with all
applicable federal and state statutes, rules and regulations,
and (ii) all governmental, regulatory, and other consents
and approvals necessary for the consummation of the Transaction
will be obtained and that no delay, limitations, restrictions or
conditions will be imposed or amendments, modifications or
waivers made that would have an effect on the Company that would
be material to our analyses or this Opinion. In addition, we
have relied upon and assumed, without independent verification,
that the final form of the Merger Agreement will not differ in
any material respect from the draft thereof identified above.
Furthermore, in
connection with this Opinion, we have not been requested to
make, and have not made, any physical inspection or independent
appraisal or evaluation of any of the assets, properties or
liabilities (fixed, contingent, derivative, off-balance-sheet or
otherwise) of the Company or any other party, nor were we
provided with any such appraisal or evaluation. We did not
estimate, and express no opinion regarding, the liquidation
value of any entity or business. We have undertaken no
independent analysis of any potential or actual litigation,
regulatory action, possible unasserted claims or other
contingent liabilities, to which the Company is or may be a
party or is or may be subject, or of any governmental
investigation of any possible
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D-2
unasserted claims or
other contingent liabilities to which the Company is or may be a
party or is or may be subject.
This Opinion is
necessarily based on financial, economic, market and other
conditions as in effect on, and the information made available
to us as of, the date hereof. We have not undertaken, and are
under no obligation, to update, revise, reaffirm or withdraw
this Opinion, or otherwise comment on or consider events
occurring or coming to our attention after the date hereof.
This Opinion is
furnished for the use and benefit of the Special Committee of
the Board of Directors of the Company (the Special
Committee) and the Board of Directors of the Company (the
Board) in connection with their consideration of the
Transaction and may not be used for any other purpose without
our prior written consent, except that this Opinion may be
reproduced and included in its entirety in any filing made by
the Company with the Securities and Exchange Commission and any
disclosure document distributed to the Companys
shareholders in connection with the Transaction. This Opinion
should not be construed as creating any fiduciary duty on the
part of Covington Associates to any party. This Opinion is not
intended to be, and does not constitute, a recommendation to the
Special Committee or the Board, any security holder or any other
person, as to how to act or vote with respect to any matter
relating to the Transaction.
We will receive a
fee from the Company for rendering this Opinion, which is not
contingent upon the successful completion of the Transaction. We
will also receive a fee from the Company upon the closing of the
Transaction. The Company has agreed to reimburse certain of our
expenses and to indemnify us and certain related parties for
certain potential liabilities arising out of our engagement.
We have not been
requested to opine as to, and this Opinion does not express an
opinion as to or otherwise address, among other things:
(i) the underlying business decision of the Company, its
security holders or any other party to proceed with or effect
the Transaction, (ii) the terms of any arrangements,
understandings, agreements or documents related to, or the form
or any other portion or aspect of, the Transaction or otherwise
(other than the Cash Merger Consideration to the extent
expressly specified herein), (iii) the fairness of any
portion or aspect of the Transaction to the holders of any class
of securities, creditors or other constituencies of the Company,
or to any other party, except if and only to the extent
expressly set forth in the last sentence of this Opinion,
(iv) the relative merits of the Transaction as compared to
any alternative business strategies that might exist for the
Company or any other party or the effect of any other
transaction in which the Company or any other party might
engage, (v) the fairness of any portion or aspect of the
Transaction to any one class or group of the Companys or
any other partys security holders vis-à-vis any other
class or group of the Companys or such other partys
security holders (including, without limitation, the allocation
of any consideration among or within such classes or groups of
security holders), (vi) the fairness of the Transaction to
holders of Common Stock to the extent such holders exchange
their shares of Common Stock for shares of membership interest
in the Acquiror as described above, and therefore we are not
expressing an opinion on the fairness of the Cash Merger
Consideration relative to the consideration to be received by
the exchanging shareholders, (vii) whether or not the
Company, its security holders or any other party is receiving or
paying reasonably equivalent value in the Transaction,
(viii) the solvency, creditworthiness or fair value of the
Company or any other participant in the Transaction, or any of
their respective assets, under any applicable laws relating to
bankruptcy, insolvency, fraudulent conveyance or similar
matters, or (ix) the fairness, financial or otherwise, of
the amount, nature or any other aspect of any compensation to or
consideration payable to or received by any officers, directors
or employees of any party to the Transaction, any class of such
persons or any other party, relative to the Cash Merger
Consideration or otherwise. Furthermore, no opinion, counsel or
interpretation is intended in matters that require legal,
regulatory, accounting, insurance, tax or other similar
professional advice. It is assumed that such opinions, counsel
or interpretations have been or will be obtained from the
appropriate professional sources. Furthermore, we have relied,
with your consent, on the assessments by the Company
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D-3
and its advisers, as
to all legal, regulatory, accounting, insurance and tax matters
with respect to the Company and the Transaction. The issuance of
this Opinion was approved by the persons within Covington
Associates authorized to approve opinions of this nature.
Based upon and
subject to the foregoing, and in reliance thereon, it is our
opinion that, as of the date hereof, the Cash Merger
Consideration to be received by holders of Common Stock in the
Transaction pursuant to the Merger Agreement is fair to such
holders from a financial point of view.
Very truly yours,
COVINGTON
ASSOCIATES, LLC
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265
Franklin Street,
3
rd
Floor
Boston,
Massachusetts 02110
T
617.314.3950 F 617.314.3955
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www.covllc.com
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D-4
Annex E
Chapter 13
of the Vermont Business Corporation Act
SUBCHAPTER 1.
RIGHT TO DISSENT AND OBTAIN PAYMENT FOR SHARES
§ 13.01.
Definitions.
In this chapter:
(1)
Corporation
means the issuer of the
shares held by a dissenter before the corporate action, or the
surviving or acquiring corporation by merger or share exchange
of that issuer.
(2)
Dissenter
means a shareholder who is
entitled to dissent from corporate action under
section 13.02 of this title and who exercises that right
when and in the manner required by sections 13.20 through
13.28 of this title.
(3)
Fair value,
with respect to a
dissenters shares, means the value of the shares
immediately before the effectuation of the corporate action to
which the dissenter objects, excluding any appreciation or
depreciation in anticipation of the corporate action unless
exclusion would be inequitable.
(4)
Interest
means interest from the
effective date of the corporate action until the date of
payment, at the average rate currently paid by the corporation
on its principal bank loans or, if none, at a rate that is fair
and equitable under all the circumstances.
(5)
Record shareholder
means the person
in whose name shares are registered in the records of a
corporation or the beneficial owner of shares to the extent of
the rights granted by a nominee certificate on file with a
corporation.
(6)
Beneficial shareholder
means the
person who is a beneficial owner of shares held by a nominee as
the record shareholder.
(7)
Shareholder
means the record
shareholder or the beneficial shareholder.
§ 13.02.
Right to dissent.
(a) A shareholder is entitled to dissent from, and obtain
payment of the fair value of his or her shares in the event of,
any of the following corporate actions:
(1)
Merger.
Consummation of a plan of
merger to which the corporation is a party
(A) if shareholder approval is required for the merger by
section 11.03 of this title or the articles of
incorporation and the shareholder is entitled to vote on the
merger; or
(B) if the corporation is a subsidiary that is merged with
its parent under section 11.04 of this title;
(2)
Share exchange.
Consummation of a
plan of share exchange to which the corporation is a party as
the corporation whose shares will be acquired, if the
shareholder is entitled to vote on the plan;
(3)
Sale of assets.
Consummation of a
sale or exchange of all, or substantially all, of the property
of the corporation other than in the usual and regular course of
business, if the shareholder is entitled to vote on the sale or
exchange, including a sale in dissolution, but not including a
sale pursuant to court order or a sale for cash pursuant to a
plan by which all or substantially all of the net proceeds of
the sale will be distributed to the shareholders within one year
after the date of sale;
(4)
Amendment to articles.
An amendment
of the articles of incorporation that materially and adversely
affects rights in respect of a dissenters shares because
it:
(A) alters or abolishes a preferential right of the shares;
(B) creates, alters, or abolishes a right in respect of
redemption, including a provision respecting a sinking fund for
the redemption or repurchase, of the shares;
E-1
(C) alters or abolishes a preemptive right of the holder of
the shares to acquire shares or other securities;
(D) excludes or limits the right of the shares to vote on
any matter, or to cumulate votes, other than a limitation by
dilution through issuance of shares or other securities with
similar voting rights; or
(E) reduces the number of shares owned by the shareholder
to a fraction of a share if the fractional share so created is
to be acquired for cash under section 6.04 of this
title; or
(5)
Market exception.
Any corporate
action taken pursuant to a shareholder vote to the extent the
articles of incorporation, bylaws, or a resolution of the board
of directors provides that voting or nonvoting shareholders are
entitled to dissent and obtain payment for their shares.
(b) A shareholder entitled to dissent and obtain payment
for his or her shares under this chapter may not challenge the
corporate action creating his or her entitlement unless the
action is unlawful or fraudulent with respect to the shareholder
or the corporation.
§ 13.03.
Dissent by nominees and beneficial
owners.
(a) A record shareholder may assert dissenters rights
as to fewer than all the shares registered in his or her name
only if he or she dissents with respect to all shares
beneficially owned by any one person and notifies the
corporation in writing of the name and address of each person on
whose behalf he or she asserts dissenters rights. The
rights of a partial dissenter under this subsection are
determined as if the shares as to which the shareholder dissents
and the shareholders other shares were registered in the
names of different shareholders.
(b) A beneficial shareholder may assert dissenters
rights as to shares held on his or her behalf only if:
(1) he or she submits to the corporation the record
shareholders written consent to the dissent not later than
the time the beneficial shareholder asserts dissenters
rights; and
(2) he or she does so with respect to all shares of which
he or she is the beneficial shareholder or over which he or she
has power to direct the vote.
SUBCHAPTER 2.
PROCEDURE FOR EXERCISE OF DISSENTERS RIGHTS
§ 13.20.
Notice of dissenters
rights.
(a) If proposed corporate action creating dissenters
rights under section 13.02 of this title is submitted to a
vote at a shareholders meeting, the meeting notice must
state that shareholders are or may be entitled to assert
dissenters rights under this chapter and be accompanied by
a copy of this chapter.
(b) If corporate action creating dissenters rights
under section 13.02 of this title is taken without a vote
of shareholders, the corporation shall notify in writing all
shareholders entitled to assert dissenters rights that the
action was taken and send them the dissenters notice
described in section 13.22 of this title.
§ 13.21.
Notice of intent to demand
payment.
(a) If proposed corporate action creating dissenters
rights under section 13.02 of this title is submitted to a
vote at a shareholders meeting, a shareholder who wishes
to assert dissenters rights
(1) must deliver to the corporation before the vote is
taken written notice of his or her intent to demand payment for
his or her shares if the proposed action is effectuated; and
(2) must not vote his or her shares in favor of the
proposed action.
(b) A shareholder who does not satisfy the requirements of
subsection (a) of this section is not entitled to payment
for his or her shares under this chapter.
E-2
§ 13.22.
Dissenters notice.
(a) If proposed corporate action creating dissenters
rights under section 13.02 of this title is authorized at a
shareholders meeting, the corporation shall deliver a
written dissenters notice to all shareholders who
satisfied the requirements of section 13.21 of this title.
(b) The dissenters notice must be sent no later than
ten days after the corporate action was taken, and must:
(1) state where the payment demand must be sent and where
and when certificates for certificated shares must be deposited;
(2) inform holders of uncertificated shares to what extent
transfer of the shares will be restricted after the payment
demand is received;
(3) supply a form for demanding payment that includes the
date of the first announcement to news media or to shareholders
of the terms of the proposed corporate action and requires that
the person asserting dissenters rights certify whether or
not the person acquired beneficial ownership of the shares
before that date;
(4) set a date by which the corporation must receive the
payment demand, which date may not be fewer than 30 nor more
than 60 days after the date the subsection (a) notice
is delivered; and
(5) be accompanied by a copy of this chapter.
§ 13.23.
Duty to demand payment.
(a) A shareholder sent a dissenters notice described
in section 13.22 of this title must demand payment, certify
whether he or she acquired beneficial ownership of the shares
before the date required to be set forth in the dissenters
notice pursuant to section 13.22(b)(3) of this title, and
deposit his or her certificates in accordance with the terms of
the notice.
(b) The shareholder who demands payment and deposits his or
her share certificates under subsection (a) of this section
retains all other rights of a shareholder until these rights are
cancelled or modified by the taking of the proposed corporate
action.
(c) A shareholder who does not demand payment or deposit
his or her share certificates where required, each by the date
set in the dissenters notice, is not entitled to payment
for his or her shares under this chapter.
§ 13.24.
Share restrictions.
(a) The corporation may restrict the transfer of
uncertificated shares from the date the demand for their payment
is received until the proposed corporate action is taken or the
restrictions released under section 13.26 of this title.
(b) The person for whom dissenters rights are
asserted as to uncertificated shares retains all other rights of
a shareholder until these rights are cancelled or modified by
the taking of the proposed corporate action.
§ 13.25.
Payment.
(a) Except as provided in section 13.27 of this title,
as soon as the proposed corporate action is taken, or upon
receipt of a payment demand, the corporation shall pay each
dissenter who complied with section 13.23 of this title the
amount the corporation estimates to be the fair value of his or
her shares, plus accrued interest.
(b) The payment must be accompanied by:
(1) the corporations balance sheet as of the end of a
fiscal year ending not more than 16 months before the date
of payment, an income statement for that year, a statement of
changes in shareholders equity for that year, and the
latest available interim financial statements, if any;
E-3
(2) a statement of the corporations estimate of the
fair value of the shares and how such estimate was calculated;
(3) an explanation of how the interest was calculated;
(4) a statement of the dissenters right to demand
payment under section 13.28 of this title; and;
(5) a copy of this chapter.
§ 13.26.
Failure to take action.
(a) If the corporation does not take the proposed action
within 60 days after the date set for demanding payment and
depositing share certificates, the corporation shall return the
deposited certificates and release the transfer restrictions
imposed on uncertificated shares.
(b) If after returning deposited certificates and releasing
transfer restrictions, the corporation takes the proposed
action, it must send a new dissenters notice under
section 13.22 of this title and repeat the payment demand
procedure.
§ 13.27.
After-acquired shares.
(a) A corporation may elect to withhold payment required by
section 13.25 of this title from a dissenter unless the
dissenter was the beneficial owner of the shares before the date
set forth in the dissenters notice as the date of the
first announcement to news media or to shareholders of the terms
of the proposed corporate action.
(b) To the extent the corporation elects to withhold
payment under subsection (a) of this section, after taking
the proposed corporate action, it shall estimate the fair value
of the shares, plus accrued interest, and shall pay this amount
to each dissenter who agrees to accept it in full satisfaction
of his or her demand. The corporation shall send with its offer
a statement of its estimate and calculation of the fair value of
the shares, an explanation of how the interest was calculated,
and a statement of the dissenters right to demand payment
under section 13.28 of this title.
§ 13.28.
Procedure if shareholder
dissatisfied with payment or offer.
(a) A dissenter may notify the corporation in writing of
his or her own estimate of the fair value of his or her shares
and amount of interest due, and demand payment of his or her
estimate (less any payment under section 13.25 of this
title), or reject the corporations offer under
section 13.27 of this title and demand payment of the fair
value of his or her shares and interest due, if:
(1) the dissenter believes that the amount paid under
section 13.25 or offered under section 13.27 is less
than the fair value of his or her shares or that the interest
due is incorrectly calculated;
(2) the corporation fails to make payment under
section 13.25 within 60 days after the date set for
demanding payment; or
(3) the corporation, having failed to take the proposed
action, does not return the deposited certificates or release
the transfer restrictions imposed on uncertificated shares
within 60 days after the date set for demanding payment.
(b) A dissenter waives his or her right to demand payment
under this section unless he or she notifies the corporation of
his or her demand in writing under subsection (a) of this
section within 30 days after the corporation made or
offered payment for his or her shares.
SUBCHAPTER 3.
JUDICIAL APPRAISAL OF SHARES
§ 13.30.
Court action.
(a) If a demand for payment under section 13.28 of
this title remains unsettled, the corporation shall commence a
proceeding within 60 days after receiving the payment
demand and petition the court to determine the fair value of the
shares and accrued interest. If the corporation does not
commence the
E-4
proceeding within the
60-day
period, it shall pay each dissenter whose demand remains
unsettled the amount demanded.
(b) The corporation shall commence the proceeding in the
superior court of the county where the corporations
principal office (or, if none in this state, its registered
office) is located. If the corporation is a foreign corporation
without a registered office in this state, it shall commence the
proceeding in the county in this state where the registered
office of the domestic corporation merged with or whose shares
were acquired by the foreign corporation was located.
(c) The corporation shall make all dissenters (whether or
not residents of this state) whose demands remain unsettled
parties to the proceeding as in an action against their shares
and all parties must be served with a copy of the complaint.
Nonresidents may be served by registered or certified mail or by
publication as provided by law.
(d) The jurisdiction of the court in which the proceeding
is commenced under subsection (b) of this section is
plenary and exclusive. The court may appoint one or more persons
as appraisers to receive evidence and recommend decision on the
question of fair value. The appraisers have the powers described
in the order appointing them, or in any amendment to it. The
dissenters are entitled to the same discovery rights as parties
in other civil proceedings.
(e) Each dissenter made a party to the proceeding is
entitled to judgment
(1) for the amount, if any, by which the court finds the
fair value of his or her shares, plus interest, exceeds the
amount paid by the corporation; or
(2) for the fair value, plus accrued interest, of his or
her after-acquired shares for which the corporation elected to
withhold payment under section 13.27 of this title.
§ 13.31.
Court costs and counsel fees.
(a) The court in an appraisal proceeding commenced under
section 13.30 of this title shall determine all costs of
the proceeding, including the reasonable compensation and
expenses of appraisers appointed by the court. The court shall
assess the costs against the corporation, except that the court
may assess costs against all or some of the dissenters, in
amounts the court finds equitable, to the extent the court finds
the dissenters acted arbitrarily, vexatiously, or not in good
faith in demanding payment under section 13.28 of this
title.
(b) The court may also assess the fees and expenses of
counsel and experts for the respective parties, in amounts the
court finds equitable.
(1) against the corporation and in favor of any or all
dissenters if the court finds the corporation did not
substantially comply with the requirements of
sections 13.20 through 13.28 of this title; or
(2) against either the corporation or a dissenter, in favor
of any other party, if the court finds that the party against
whom the fees and expenses are assessed acted arbitrarily,
vexatiously, or not in good faith with respect to the rights
provided by this chapter.
(c) If the court finds that the services of counsel for any
dissenter were of substantial benefit to other dissenters
similarly situated, and that the fees for those services should
not be assessed against the corporation, the court may award to
these counsel reasonable fees to be paid out of the amounts
awarded the dissenters who were benefited.
E-5
Annex F
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form 10-K
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(Mark One)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the fiscal
year ended December 31,
2009
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OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the transition period
from to
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Commission file Number:
000-29464
ROCK OF
AGES CORPORATION
(Exact name of registrant as
specified in its charter)
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Vermont
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030153200
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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560 GRANITEVILLE ROAD
GRANITEVILLE, VERMONT 05654
(Address of principal executive
offices and zip code)
(802)
476-3121
(Registrants telephone
number, including area code)
Securities registered pursuant to Section 12(b) of the
Act: None
Securities registered pursuant to Section 12(g) of the
Act:
CLASS A COMMON STOCK, NO PAR VALUE
(Title of Class)
Indicate by check mark whether the registrant is a well-known
seasoned issuer, as defined in Rule 405 of the Securities
Act. Yes
o
No
þ
Indicate by check mark whether the registrant is not required to
file reports pursuant to Section 13 or Section 15(d)
of the
Act. Yes
o
No
þ
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been
subject to such filing requirements for the past
90 days. Yes
þ
No
o
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of
Regulation S-K
is not contained herein, and will not be contained, to the best
of registrants knowledge, in definitive proxy or
information statements incorporated by reference in
Part III of this
Form 10-K
or any amendment to this
Form 10-K.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large
accelerated
filer
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Accelerated
filer
o
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Non-accelerated
filer
o
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Smaller
reporting
company
þ
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(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company
(as defined in
Rule 12b-2
of the Exchange
Act.) Yes
o
No
þ
As of June 30, 2009, the aggregate market value of the
registrants voting stock held by non-affiliates of the
registrant was $9,902,954. As of March 20, 2010, there were
outstanding 4,812,342 shares of Class A Common Stock
and 2,603,721 shares of Class B Common Stock.
F-1
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on
Form 10-K,
including Managements Discussion and Analysis of
Financial Condition and Results of Operations in
Item 7, contains forward-looking statements that involve
risks and uncertainties, as well as assumptions that, if they
never materialize or prove incorrect, could cause the results of
Rock of Ages Corporation (Rock of Ages or the
Company) and events to differ materially from those
contained in such statements. All statements other than
statements of historical fact could be deemed forward-looking
statements, and may include projections of revenue, gross
profit, expenses, earnings or losses from operations or other
financial items; any statements of the plans, strategies and
objectives of the Company or its management for future
operations; any statements regarding future economic conditions
or performance; any statements of expectation or belief; and any
statements of assumptions underlying any of the foregoing.
The risks, uncertainties and assumptions may include, but are
not limited to, the following:
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our ability to certify adequate internal controls over our
financial reporting;
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our reliance on our line of credit with the CIT Group to fund
our business operations
and/or
strategy;
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our ability to maintain compliance with our covenants in our
credit facility;
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our ability to form and maintain strategic alliances with
cemeteries, funeral homes and memorial retailers;
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uncertainties involving production recovery, quarry yields
and demand for Rock of Ages dimension stone;
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the impact of the weak economic conditions and the future
impact of such conditions on the granite and granite memorial
industries, and demand for our products;
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and other risks and uncertainties described herein,
including, but not limited to the items discussed in Risk
Factors That May Affect Future Results in Item 1A of
this report, and that are otherwise described from time to time
in Rock of Ages reports filed with the Securities and
Exchange Commission after the date of filing of this report.
We assume no obligation to update these forward-looking
statements to reflect actual results or changes in factors or
assumptions affecting such forward-looking statements.
F-3
PART I
GENERAL
Rock of Ages is a Vermont corporation founded in 1885 and is an
integrated granite quarrier and manufacturer whose principal
product is granite memorials used primarily in cemeteries. We
own and operate nine active quarry properties and five
manufacturing and sawing facilities in North America,
principally in Vermont and the Province of Quebec. We sell
memorials wholesale to approximately 115 independent authorized
Rock of Ages retailers in the United States as well as
approximately 116 independent retailers in Canada. We sell
higher end memorials with prices in excess of $25,000 to
cemeteries, funeral homes, other retailers or to the consumer.
We market and sell our memorials at various price points:
Square Seal, Round Seal and Signature
. Our memorials are
offered in granites of various colors and are covered by a full
perpetual or a limited perpetual warranty, depending on the
particular granite and brand. We believe the
Rock of Ages
trademark is one of the oldest and best-known brand names in
the granite memorialization industry, and we actively promote
our brand name and place a seal bearing the brand name on each
branded memorial. The Company also sells unbranded memorials.
On December 8, 2009, the Company completed the change in
its state of incorporation from Delaware to Vermont (the
Reincorporation). Pursuant to an Agreement and Plan
of Merger adopted by the Board of Directors and approved by the
stockholders on October 19, 2009, Rock of
Ages Corporation, a Delaware corporation, was merged with
and into its wholly-owned subsidiary, Rock of
Ages Corporation (Vermont), with Rock of
Ages Corporation (Vermont) as the surviving corporation.
The name of the surviving corporation was changed to Rock
of Ages Corporation. The Board of Directors
determined to reincorporate the Company in Vermont primarily
because of its desire to reduce corporate expenses. As a
Delaware corporation the Company was required to pay
approximately $160,000 in annual franchise fees to the State of
Delaware. As a Vermont corporation the Company pays a flat
filing fee of $35 annually. As a result of the reincorporation
the Company is now governed by the Vermont Business Corporation
Act, Title 11 of the Vermont Statutes Annotated (the
VBCA).
Rock of Ages, Signature, Sealmark, American Black, Barre
Gray, Bethel White, Salisbury Pink, Gardenia White, Laurentian
Pink
and
Galactic Blue
are trade names or trademarks
of the Company. We rely on both registered and common-law
trademarks in the United States and in other countries to
protect the goodwill associated with these brands.
Until January 17, 2008, we were also engaged in the retail
sale of memorials. We embarked upon our retail strategy in
connection with our initial public offering in 1997 and from
1997 to 2005 we acquired 28 retail monument companies with
approximately 80 locations in 16 states. However, in 2007
our Board of Directors determined that it was in the best
interests of the Company and its stockholders to exit the retail
business, to simplify and reduce the cost of the existing
management infrastructure, and to focus on our core quarrying
and manufacturing business, including our wholesale memorial
distribution system.
In December 2007, the Board authorized the sale of the retail
division to PKDM Holdings, Inc. (PKDM), a company
owned by Richard M. Urbach, the President and Chief Operating
Officer of the retail division, and James Barnes, the financial
manager of the retail division, for approximately
$8 million. The sale was completed on January 17,
2008. In connection with the sale, we entered into a five year
supply agreement with PKDM and its operating subsidiary, North
American Heritage Services, Inc. (NAHS), naming it
as an authorized Rock of Ages retailer in the existing retail
territories formerly serviced by its owned retail stores, and
PKDM agreed to minimum annual memorial purchases from the
Company of $3.5 million during each year of the five year
term, excluding private mausoleums. PKDMs minimum purchase
obligation under the Supply Agreement is subject to reduction if
PKDM permanently closes or sells stores that were operated by
them on the date of the original Supply Agreement. Pursuant to
the Supply Agreement, the amount of such reduction is equal to
the three year average annual purchases of closed or sold
stores. Due to the closure or sale of a number of locations by
PKDM during 2008, effective January 16, 2009 the parties
agreed to revise the minimum purchase requirements to $1,780,000
for the year of the agreement ending on January 17, 2009
and to $1,210,000 for each of the remaining years of the initial
term and any renewal term. At the time of the
F-4
sale in January of 2008, the Company retained $2,125,000 of
inventory located at various retail locations and PKDM is
responsible for purchasing the inventory, at its current book
value, as it is sold, with a payment in full for any inventory
remaining due on the tenth anniversary of the transaction. The
balance of consigned inventory with PKDM at December 31,
2009 was $1,900,000.
VIKA, Ltd. (VIKA), a quarry company located in the
Ukraine, in which we had held a 1/3 equity interest since
2002, experienced continuing operational difficulties leading to
reductions in both the production and sale of Galactic Blue
granite blocks. As a result, our investment in VIKA was fully
written-off in 2007. On June 30, 2009, the Company agreed
to sell its one-third ownership interest in VIKA to the
remaining VIKA shareholder for $170,583 payable in four equal
installments of $42,646 due from July to October 2009.
These payments were received in 2009 as agreed. In conjunction
with this sale the Company entered into an exclusive
distribution agreement with VIKA pursuant to which the Company
has the exclusive worldwide right to sell and distribute all
quarried products of VIKA including slabs and other finished
products through 2012.
On April 17, 2009, Rock of Ages Canada, (ROA
Canada), a wholly owned subsidiary of the Company signed
an Asset Purchase Agreement and completed the purchase of the
real and personal property comprising the Polycor Stanstead
Quarry, located in Stanstead, Quebec, Canada from Carrieres
Polycor, Inc., (Polycor). The purchase price for the
quarry, building and inventory was $1.3 million. In
connection with the purchase, Polycor entered into an agreement
that limits Polycor from owning or operating a quarry similar to
the Stanstead Gray quarry within fifty kilometers of Stanstead,
Quebec. This agreement also prohibits Polycor from soliciting
ROA Canadas customers for sales of gray granite. In
connection with the purchase, ROA Canada entered into a supply
agreement with Polycor, for 30 years whereby ROA Canada
must supply Polycor with standard sized blocks of up to 300
cubic meters (or 10,594 cubic feet) a month. ROA Canada also
assumed the remaining three years of supply agreements with two
unrelated granite manufacturers. The Company was in compliance
with its obligations under these agreements in 2009.
During 2009, we had operations in two business segments: Quarry
and Manufacturing. Included within the business segments are
operations that are conducted through unincorporated divisions
of Rock of Ages and other operations that are conducted by
separately incorporated subsidiaries. Financial information by
business segment and geographic area is incorporated herein by
reference to note 14 of the Notes to Consolidated Financial
Statements included in this report. In addition, information
regarding the revenues of each business segment is incorporated
herein by reference to Item 7, Managements
Discussion and Analysis of Financial Condition and Results of
Operations. Risks attendant to foreign operations are also
incorporated herein by reference to Risk Factors that May
Affect Future Results in Item 1A. Additional
information regarding each business segment and Rock of Ages in
general is set forth herein.
STRATEGY
We seek to enhance the overall profitability of the
Companys businesses through a strategy which includes the
following principal elements:
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Direct sales of mausoleums and estate and civic memorials to
cemeteries and consumers
. We expect to continue
to expand sales of private mausoleums, and estate and civic
memorials directly to the customer through our mausoleum and
special features sales force based at our Barre, Vermont
manufacturing plant.
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Strategic alliances with cemeteries, funeral homes and
memorial retailers to expand our wholesale distribution in North
America.
We have formed and will continue to
pursue strategic alliances with memorial retailers, funeral
directors and cemetery owners to sell mausoleums, estate
memorials, features and granite memorials in cooperation with
them as authorized Rock of Ages retailers or other
relationships, in order to increase both pre-need and at-need
sales of granite memorials.
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Enhancing quarry and manufacturing
productivity.
We seek to substantially reduce our
costs of quarrying and manufacturing and enhance our
productivity through investments in the most efficient equipment
and technology and maintaining a flexible workforce.
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Branding.
We believe the Rock of Ages brand is
one of the best-known brand names in the memorial industry. We
will continue to promote and support the Rock of Ages brand sold
at independent authorized Rock of Ages retailers.
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F-5
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Acquisitions of quarries and distribution
rights.
While we own or control many of the
highest quality granite quarries in North America, we will
continue to explore the possibility of acquiring selected
granite quarriers in North America and internationally to assure
we will continue to have the colors and grades of granites
sought by retail purchasers of granite memorials in North
America, as well as exclusive granites for other uses. We will
also continue to explore the acquisition of distribution rights
to certain colors and grades of granites.
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Personalization.
We intend to continue to
expand and enhance our memorial product lines in color, design
and style to meet each customers personal requirements.
Our objective is to provide a full range of memorials available
at various price points.
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Reducing unallocated corporate overhead and corporate
infrastructure.
We continue to seek ways to
streamline our operations and cut overhead costs.
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PRODUCTS
Our principal products may be classified into two general
product lines: granite quarry products (with limited value added
manufacturing performed) and manufactured granite products,
primarily granite memorials. The principal raw material for both
granite product lines is natural granite as it comes from the
ground, with the primary difference between the product lines
being the extent of the processing or manufacturing of the
granite. For each of the last two years, 2009 and 2008, revenues
derived from the sale of granite quarry products have accounted
for 47% and 51%, respectively, of consolidated revenues; and
revenues derived from the sale of manufactured granite products
at wholesale have accounted for 53% and 49%, respectively, of
consolidated revenues.
Granite
Quarry Products
Our principal quarry product is granite blocks, the raw material
of the dimension granite industry. These blocks are extracted
from quarries in various sizes through a drilling, blasting and
wire sawing process in the quarry. The range of block sizes is
large, but most manufacturers of granite memorials and other
products generally require minimum dimensions of height, width
and length to maximize the efficiency of their block sawing
equipment in meeting the required dimensions of the finished
product. Granite blocks are normally sold in heights from
2'6" to 5', widths of 3' to 5', and
lengths from 7' to 10'. These blocks typically weigh
between 20 and 30 tons. Our quarry revenues are also derived, to
a lesser degree, from the sale of blocks purchased from other
quarries for resale through our distribution system, and from
the sale of rough or sawn slabs.
Granite differs from deposit to deposit by color, grade
and/or
quality. We quarry and sell blocks of (i)
Barre Gray
granite from our Barre, Vermont quarries and gray granite
from our Stanstead, Quebec quarry, (ii) black granite from
our
American Black
quarry in Pennsylvania,
(iii) pink granites from our
Laurentian Pink
quarry
in Quebec and our
Salisbury Pink
quarry in North
Carolina, and (iv) white granites from our
Bethel White
quarry in Vermont and our
Gardenia White
quarry in
North Carolina. We also sell black granite with prominent blue
feldspar from the
Galactic Blue
quarry in the Ukraine
under an exclusive world-wide sales agreement.
We sell granite blocks for memorial, building and other uses.
While each of our quarries sells granite for memorial use and
for building use, the output of the
Bethel White
quarry,
the
Gardenia White
quarry, the
Salisbury Pink
quarry and the
Galactic Blue
quarry are primarily
sold and used for building granite use (such as building
cladding, tiles, pavers, steps, countertops and other building
products) outside North America. The output of the other
quarries is primarily for memorial use in North America.
A quarry sales force both in and outside North America sells our
granite blocks. The quarry sales force markets and advertises
our granite blocks in various trade publications and by
attending trade shows worldwide. Outside of North America, our
quarry sales force generally sells directly to manufacturing
plants or to independent distributors who buy blocks and resell
them.
Other quarry products include waste pieces not of a shape or
size suitable for manufacturing, which are sold for erosion
control for embankments, bridges or piers, and for other uses.
In certain quarries, we have arrangements with crusher operators
who operate on or near our quarries and sell crushed stone. The
revenues
F-6
and profits of these products are not material. We have no
marketing and advertising programs for these other quarry
products.
Manufactured
Products
The principal manufactured product of Rock of Ages is granite
memorials, which are sold to retailers of granite memorials and
substantially all of which are placed in cemeteries in
remembrance of the life of a person. Our memorials encompass a
wide range of granites, including granite blocks purchased from
others, as well as a wide array of sizes, styles and shapes
ranging from small, inexpensive markers set flush to the ground,
to very elaborate and expensive personal mausoleums available at
various price ranges. The broad classifications of granite
memorials used by the industry are generally markers, hickeys,
slants, standard uprights, estate uprights, pre-assembled
mausoleums, conventional mausoleums and columbaria. We also sell
public and civic memorials not placed in cemeteries, both on a
wholesale basis and directly to the customer. From time to time,
memorial retailers or others order granite products such as
benches, steps and other products that may or may not be for
cemetery use, but are classified by us as memorial sales.
Rock of Ages is widely recognized for the personalized granite
memorials it produces and the very large memorials it can
produce. We have made many large private and public memorials,
including a full size granite replica of a Mercedes-Benz
automobile and the massive Atlantic and Pacific arches of the
World War II memorial in Washington DC.
Our granite memorials are sold to retailers by our memorial
sales force that regularly speak with customers by phone and
make personal visits. Our mausoleums and special features group
sells both to retailers and direct to the customer. We provide
various point of sale materials to independent authorized Rock
of Ages retailers, we advertise in trade publications and attend
trade shows in the United States and Canada.
Rock of Ages also manufactures certain precision granite
products which are made at our Barre, Vermont plant. These
products include surface plates, machine bases, bases for
coordinate measuring devices, press rolls and other products
manufactured to exacting dimensions. These products are sold to
the manufacturers of precision measuring devices or end users. A
precision products sales force that phones or visits customers,
sells these products. We also advertise our precision products
in various trade publications, provide printed sales materials
to prospective customers and attend industry conventions.
Retail
Products
On January 17, 2008, we completed the sale of our retail
operations to PKDM and exited the retail business entirely.
MANUFACTURING
AND RAW MATERIALS
Rock of Ages quarries and manufactures granite in the United
States and Canada at the locations indicated in Item 2
Properties. We also outsource the manufacturing of
certain memorial products pursuant to supply agreements with
other manufacturers. In connection with the sale of the Lawson
manufacturing plant in Barre, Vermont in 2001, the Company
entered into a Supply Agreement with Adams Granite Co.
(Adams). The Company agreed to purchase a minimum of
$3,000,000 of monuments from Adams each year for a term of seven
years with various stipulations as to variations from the
minimum order and pricing agreements. The Supply
Agreement with Adams was amended over the years reducing the
minimum order obligation to $1,200,000 for the final year ending
January 10, 2010. The Company exceeded its minimum order
obligation for the final year ending January 10, 2010 and
no longer has an obligation to purchase monuments from Adams.
There were no plants acquired in 2009. We believe our
manufacturing and quarrying capacity, together with our
manufacturing outsourcing arrangements, are generally sufficient
to meet anticipated production requirements for the foreseeable
future.
The most significant raw material we use in our manufacturing
operations is granite blocks primarily from our quarries. We
believe we have an adequate supply from our quarries to supply
our manufacturing operations. We also purchase certain colors of
granite, primarily red and black, from other quarriers. We
F-7
believe there is an adequate supply of memorial granite
available from our quarries and quarries owned by others for the
foreseeable future.
Significant supplies used in our manufacturing operations
include industrial diamond segments for saw blades and wires,
drill steel, drill bits and abrasives. There are a number of
sources for these supplies at competitive prices.
We had manufacturing backlogs of $7.4 million and
$7.1 million as of December 31, 2009 and 2008,
respectively. These backlogs occurred in the normal course of
business. Of the manufacturing backlog orders as of
December 31, 2009, we expect 100% to be filled during the
2010 fiscal year. We have not historically had a material
backlog of quarry block or slab orders.
We do not normally maintain a significant inventory of finished
manufactured products in anticipation of future orders in our
manufacturing operations. In connection with the sale of our
retail operations to PKDM on January 17, 2008, we retained
finished memorial inventory which is located at the various
retail locations sold to PKDM and at December 31, 2009 has
an aggregate book value of approximately $1.9 million. This
inventory has been consigned to PKDM for sale to customers. Any
finished inventory not sold by PKDM within 10 years of the
closing date will be purchased by PKDM at book value at that
time. Approximately 75% of our manufactured product orders are
delivered within two to twelve weeks of the order date, as is
customary in the granite memorial industry. The delivery time
depends on the size and complexity of the memorial. Our quarry
operations have inventories of granite blocks.
RESEARCH
AND DEVELOPMENT
We do not have a research and development department for any of
our products. From time to time, we conduct market research, as
well as research on new product designs and on equipment to
improve the Companys technology. These activities are not
separately accounted for as research, and we had no expenditures
classified for financial reporting purposes as research in 2009
or 2008.
COMPETITION
The dimension stone industry is highly competitive. We compete
with other dimension stone quarriers, including quarriers of
granite, marble, limestone, travertine and other natural stones.
We also compete with manufacturers of so-called engineered
stone as well as manufacturers of other building materials
like concrete, aluminum, glass, wood and other materials. The
competition with providers of these materials is based on price,
availability of supply, end-user preference for certain colors,
patterns or textures, and other factors.
The granite memorial industry is also highly competitive. We
compete with other granite quarriers and manufacturers in the
sale of granite blocks for memorial use, and finished memorials,
on the basis of price, color, quality, geographic proximity,
service, design, production capability, availability of supply
and delivery options. All of our colors of granite are subject
to competition from memorial grade granite blocks of similar
color supplied by quarriers located throughout the world. There
are approximately 130 manufacturers of granite memorials in
North America with a majority of them being located in the
Elberton, Georgia area.
Our quarrying and manufacturing competitors include both
domestic and international companies, some of which may have
greater financial, technical, manufacturing, marketing and other
resources than we have. Foreign competitors may have access to
lower cost labor and extensive commercial deposits of memorial
and building grade granite, and may be subject to less
restrictive regulatory requirements. For example, companies in
South Africa, India and China manufacture and export finished
granite memorials into North America, which compete with our
products.
PATENTS,
TRADEMARKS AND LICENSES
We hold a number of domestic and foreign patents, trademarks and
copyrights, including the original registered trademark
Rock of Ages, which we first registered in 1913. We
believe the loss of a single patent, trademark or copyright,
other than the Rock of Ages trademark, would not
have a material adverse effect on our business, financial
condition or results of operations. See Item 1A
Risk Factors That May Affect Future Results.
F-8
EMPLOYEES
We had approximately 257 employees as of December 31,
2009. We had approximately 268 employees as of
December 31, 2008.
The collective bargaining agreements with the Granite Cutters
Association and the United Steelworkers of America which
together represent approximately 100 employees in our
Vermont manufacturing and quarrying operations were renewed in
2009. The contracts with the Granite Cutters Association and the
United Steelworkers of America for our Vermont manufacturing
plant employees will expire on April 29, 2011 and the
contract with the United Steelworkers of America for our Vermont
quarry employees will expire on April 27, 2012. We also
renewed in 2009 the agreement with the United Steelworkers union
representing substantially all the production workforce in our
granite quarry and manufacturing plants located in Stanstead,
Quebec. The agreement will cover approximately fifty workers,
and is for a term of approximately four years, commencing
November 1, 2009 and expiring on October 31, 2013. We
also have a collective bargaining agreement with one union
representing approximately 5 employees in our Laurentian
Quarry. This agreement expired on January 31, 2010. Since
this quarry does not operate in the winter due to weather
conditions, we will be negotiating with this union late in the
first quarter of 2010 when the quarry reopens. We expect no
problems with these negotiations and should have a signed
agreement by the second quarter of 2010. See
Item 1A Risk Factors That May Affect Future
Results.
We believe our relations with our employees are generally good,
and recognize that our employees are among our most important
assets.
SEASONALITY
Historically, our operations have experienced certain seasonal
patterns. Generally, our net sales are highest in the second or
third quarter and lowest in the first quarter of each year due
primarily to weather. See Item 7 Managements
Discussion and Analysis of Financial Conditions and Results of
Operations Seasonality.
REGULATION AND
ENVIRONMENTAL COMPLIANCE
Our quarry and manufacturing operations are subject to
substantial regulation by federal, state and foreign
governmental agencies and other authorities, including OSHA, the
Mine Safety and Health Administration and similar state and
Canadian authorities. Our operations are also subject to
extensive laws and regulations administered by the United States
Environmental Protection Agency and similar state and Canadian
authorities for the protection of the environment, including
those relating to air and water quality, noise levels, and solid
and hazardous waste handling and disposal. These laws and
regulations may require us to fund remedial action or to pay
damages regardless of fault. Environmental laws and regulations
may also impose liability with respect to divested or terminated
operations even if the operations were divested or terminated
many years ago. In addition, current and future environmental or
occupational health and safety laws, regulations or regulatory
interpretations may require significant expenditures for
compliance which could require us to modify our operations. We
cannot predict the effect of such laws, regulations or
regulatory interpretations on our business, financial condition
or results of operations.
AVAILABLE
INFORMATION
We maintain a website with the address www.rockofages.com. We
are not including the information contained on our website as a
part of, or incorporating it by reference into, this Annual
Report on
Form 10-K.
We make available free of charge through our website our Annual
Report on
Form 10-K,
Quarterly Reports on
Form 10-Q
and Current Reports on
Form 8-K
(in each case without exhibits), and amendments to these reports
(without exhibits) filed as soon as reasonably practicable after
such reports are electronically filed with the Securities and
Exchange Commission.
F-9
Risk
Factors That May Affect Future Results
The risks and uncertainties described below are not the only
ones we face. Additional risks and uncertainties not presently
known to us or which are currently deemed immaterial may also
impair our business, financial condition and results of
operations. If any of these risks actually occur, our business,
financial condition and results of operations could be
materially adversely affected.
If we
or our independent registered public accounting firm are unable
to affirm the effectiveness of our internal control over
financial reporting in future years, the market value of our
common stock could be adversely affected.
Our independent registered public accounting firm must audit and
report on our internal controls over financial reporting as of
December 31, 2010 and subsequent fiscal year end dates,
respectively, and such report must be included in our Annual
Report on
Form 10-K
for the year ending December 31, 2010, and in subsequent
Annual Reports on
Form 10-K
for subsequent years, respectively. In 2007 we disclosed
material weaknesses in our internal control over financial
reporting in Item 9A(T) Controls and Procedures
of the Annual Report on
Form 10-K.
In 2008 we remediated the weaknesses and accordingly reported no
material weaknesses in our internal control over financial
reporting as of December 31, 2008 and December 31,
2009. However, we cannot assure you that we or our independent
registered public accounting firm will be able to report that
our internal control over financial reporting are effective as
of December 31, 2010 and subsequent fiscal year end dates.
In this event, investors could lose confidence in the
reliability of our financial statements, which could result in a
decrease in the market value of our Class A Common Stock.
Moreover, even though we believe we have corrected the material
weaknesses reported in 2007, our internal controls may not
prevent all potential errors, because any system of controls and
procedures, regardless of its design, can provide only
reasonable, and not absolute, assurance that the objectives of
the control system will be achieved. There are inherent
limitations to the effectiveness of any system of controls and
procedures, including the possibility of human error and the
circumvention or overriding of the controls and procedures.
We
rely on the CIT Group to fund our working capital
needs.
We rely on our credit facility for working capital needs. The
lead agent/administrator on the credit facility is the CIT
Business Group, a subsidiary of CIT Group, Inc.
(CIT). On November 1, 2009, CIT filed for
Chapter 11 bankruptcy protection in a pre-packaged plan of
reorganization. During the months leading up to the bankruptcy
filing, CIT continued to fund all requests for advances on the
revolving line of credit. On December 10, 2009, CIT emerged
from bankruptcy and was able to restructure its debt
obligations. However, CITs financial condition remains
precarious and there is no guarantee it will continue to fund
our requests or continue to honor its commitments under the
credit facility. If CIT can no longer honor its commitments, we
would be forced to secure other sources of financing to meet all
of our cash needs, which would have a material and adverse
impact on the Companys business.
Our
financing requirements may increase and we could have limited
access to capital markets.
The United States and worldwide capital and credit markets have
recently experienced significant price volatility, dislocations
and liquidity disruptions, which have caused market prices of
many stocks to fluctuate substantially and the spreads on
prospective debt financings to widen considerably. In addition,
declining capital ratios of many lending institutions and the
very weak commercial paper market have adversely impacted
various lending institutions including our long-term lender CIT,
which may adversely impact our ability to borrow under our
existing lines of credit. While we believe that our current
resources and access to capital markets are adequate to support
operations over the near term and foreseeable future, we cannot
assure you that these circumstances will remain unchanged. Our
need for capital is dependent on operating results and may be
greater than expected. Our ability to maintain our current
sources of debt financing depends on our ability to remain in
compliance with covenants contained in our financing agreements,
including, among
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other requirements, maintaining a minimum total net worth and
minimum cash flow and debt coverage ratios. If changes in
capital markets restrict the availability of funds or increase
the cost of funds, we may be required to modify, delay or
abandon some of our planned expenditures, which could have a
material adverse effect on our business, financial condition,
results of operations and cash flows.
Our
credit facility with CIT includes restrictions on our business
operations that we must comply with, and financial tests that we
must meet in order to continue to borrow under the facility to
support our operations.
The terms of our credit facility with CIT restrict our ability
to, among other things, consummate asset sales, participate in
mergers, incur additional debt, pay dividends, repurchase stock
or make investments or guarantees without the prior consent of
CIT. The terms also contain covenants that require us to meet
financial tests, including a minimum Fixed Charge Coverage Ratio
and a maximum Total Liabilities to Net Worth Ratio, in order to
continue to borrow under the facility and avoid a default that
might lead to an early termination of the facility. The
restrictions in our credit facility may prevent us from taking
actions that we believe would be in the best interest of the
Company and its shareholders and make it difficult to execute
our business strategy successfully. The terms of this credit
facility, including these covenants, are generally described in
Item 7 of this report under the caption Liquidity and
Capital Resources Credit Facility.
As described under such caption, we were in violation of our
credit facility because we sustained a net loss during 2008, and
we failed to meet the Fixed Charge Coverage Ratio covenant for
the four fiscal quarters ending December 31, 2008. These
violations were primarily as a result of two non-cash charges
taken during the fourth quarter of 2008. First, we took a
$3,930,000 charge for the write-down of second grade block
inventory at three of our export quarries, and second, we took a
$1,348,000 charge for the write-down of our former headquarters
building in Barre, Vermont, which was taken out of service when
we consolidated our offices in Barre. We received a waiver from
our lenders allowing us to be in compliance with our credit
facility and our lenders agreed to allow us, in calculating the
Fixed Charge Coverage Ratio, to add back the non-cash
write-downs taken with respect to the second grade inventory and
the vacated building for the first three quarters of 2009. At
December 31, 2009, we were in compliance with all existing
covenants and expect to remain in compliance through the
remaining term of the credit facility. However, we cannot
provide assurances that we will be able to maintain compliance
with the covenants in our credit facility, Moreover, if we fail
to maintain compliance with such covenants we cannot provide
assurances that we will continue to receive waivers of any
non-compliance. If we are unable to comply with the financial or
other covenants of our credit facility, and we could not obtain
waivers of such non-compliance, we will likely be unable to
borrow additional amounts under the facility and amounts owed
under the facility could be accelerated and become due and
payable immediately, which would materially impact our liquidity
and financial conditions and could require us to cease
operations or seek protection under state or federal insolvency
or bankruptcy laws.
Our
business is subject to a number of operating risks that are
difficult to predict and manage.
Our quarry and manufacturing operations are subject to numerous
risks and hazards inherent in those industries, including among
others, unanticipated surface or underground conditions, varying
saleable granite recovery rates due to natural cracks and other
imperfections in granite deposits, equipment failures, accidents
and worker injuries, labor issues, weather conditions and
events, unanticipated transportation costs and price
fluctuations. These risks and hazards are generally not
predictable. As a result, actual costs and expenditures,
production quantities and delivery dates, as well as revenues,
may differ materially from those anticipated, which could
adversely affect our operating results. During 2009, we
experienced production recovery problems in our Bethel White,
Gardenia White and American Black quarries, which negatively
affected results of operations in 2009. These production
recovery issues may persist in 2010, and we cannot assure you
that our substantial continuing efforts to improve production
recovery will improve our quarry segment results for 2010.
F-11
Changes
in the securities laws and regulations have increased, and are
likely to continue to increase, our costs, and may also
adversely affect our ability to attract and retain qualified
directors.
The Sarbanes-Oxley Act has required changes in some of our
corporate governance, securities disclosure and compliance
practices. Pursuant to the requirements of that Act, the SEC and
the Nasdaq Stock Market have promulgated rules and listing
standards covering a variety of subjects. Compliance with these
new rules and listing standards has increased our legal costs,
and significantly increased our accounting and auditing costs,
and we expect these costs to continue to increase, and to
materially impact our financial results. In particular, we have
incurred and will continue to incur substantial expense in the
on-going evaluation and testing of our internal control over
financial reporting as we comply with Section 404 of the
Sarbanes-Oxley Act. These changes in securities laws and
regulations may make it more difficult and more expensive for us
to obtain directors and officers liability
insurance. Likewise, these developments may make it more
difficult for us to attract and retain qualified members of our
board of directors, particularly independent directors, or
qualified executive officers.
The
pension funding requirements may adversely affect our cash
flow.
Compliance with pension funding requirements could adversely
affect our cash flow. We have a qualified defined benefit
pension plan which covers eligible employees as of
March 31, 2009. On January 5, 2009, the Companys
Board of Directors approved actions to proceed with amendments
to its defined benefit pension plan by freezing membership and
future benefits in the plan. This action was effective as of
March 31, 2009. At December 31, 2009, this plan is
underfunded by $4.8 million, which means that promised
pension benefits could potentially exceed the funds available.
In August 2006, the Pension Protection Act (the Act)
was signed into law in the U.S. Among other things, the Act
is aimed at strengthening pension plans by requiring most
pension plans to become fully funded over a seven-year period.
The Worker, Retiree and Employer Recovery Act of 2008 has
provided modest relief from the market events in 2008 by
decreasing short term contribution requirements. However,
without an increase in the value of the plan assets we could be
required to fund the plan with significant amounts of cash.
Additionally, if we are unable to meet the funding targets
imposed by the Act, we may incur significant penalties. See
Item 7 of this report,
Management Discussion and
Analysis of Financial Condition and Results of
Operations Liquidity and Capital Resources.
If we
are unable to maintain our relationships with independent
retailers, our sales may not grow and could
decline.
We have historically sold our granite memorials to consumers
through independent retailers. We are dependent in part on our
independent retailers for the successful distribution of our
products to the ultimate customer. We have no control over the
independent retailers operations, including such matters
as retail price, advertising and marketing. We cannot assure you
we will be able to maintain our existing relationships or
establish new relationships with independent retailers.
Disruption in our relationships with independent retailers could
impede our sales growth or cause sales to decline, which would
adversely affect our business and financial results.
Declining
general economic, business, or industry conditions may cause
reduced revenues and profitability.
Recently, concerns over inflation, energy costs, geopolitical
issues, the availability and cost of credit, the
U.S. mortgage market and a declining real estate market in
the U.S. have contributed to increased volatility and
diminished expectations for the global economy and expectations
of slower global economic growth going forward. These factors,
combined with volatile oil prices, declining business and
consumer confidence and increased unemployment, have
precipitated a global recession. If the economic climate in the
U.S. or abroad does not improve from its current condition
or continues to deteriorate, our customers or potential
customers could reduce or delay their purchases of our products,
which would adversely impact both our quarrying and
manufacturing business segments.
F-12
Our
international operations may expose us to a number of risks
related to conducting business in foreign
countries.
We derived approximately 40% of total revenues in fiscal 2009
from sales to customers outside the United States, including
approximately 23% from sales in Canada by our Canadian
subsidiary and 16% from sales in China. Foreign sales are
subject to numerous risks, including currency conversion risks,
limitations (including taxes) on the repatriation of earnings,
slower and more difficult accounts receivable collection and
greater complication and expense in complying with foreign laws.
Our sales of granite blocks to foreign countries are primarily
for building use and are subject to various cyclical factors in
foreign countries, foreign exchange rate fluctuations, policies
of foreign governments and numerous other factors over which we
have no control. While we continue to develop sales to customers
in other countries, we cannot assure you that sales of granite
blocks to our Chinese and other foreign customers will remain at
historic levels.
Employee
strikes and other labor-related disruptions may adversely affect
our operations.
Our business is labor intensive, and our workforce includes,
among other employees, highly skilled quarrying and
manufacturing personnel such as stone cutters, sand blasters,
sculptors and other skilled artisans. Approximately 60% of our
workforce is unionized. Strikes or labor disputes with our
unionized employees may adversely affect our ability to conduct
our business.
If we
lose key personnel, or are unable to attract and retain
additional qualified personnel, our business could
suffer.
Our operations and the implementation of our strategies to
enhance overall Company profitability are management intensive.
We are substantially dependent upon the abilities and continued
efforts of our senior management. Our business is also dependent
on our ability to continue to attract and retain a highly
skilled quarry and manufacturing workforce, including stone
cutters, sand blasters, sculptors and other skilled artisans.
The loss of the services of our senior management or other
highly skilled personnel could adversely affect our business and
operating results.
We
face intense competition and, if we are unable to compete
successfully, we may be unable to increase our sales, which
would adversely affect our business and
profitability.
The dimension stone industry is highly competitive. We compete
with other dimension stone quarriers, including quarriers of
granite, marble, limestone, travertine and other natural stones.
We also compete with manufacturers of so-called engineered
stone as well as manufacturers of other building materials
like concrete, aluminum, glass, wood and other materials. We
compete with providers of these materials on the basis of price,
availability of supply, end-user preference for certain colors,
patterns or textures, and other factors.
The granite memorial industry is also highly competitive. We
compete with other granite quarriers and manufacturers in the
sale of granite blocks for memorial use on the basis of price,
color, quality, geographic proximity, service, design
availability, production capability, and delivery options. All
of our colors of granite are subject to competition from
memorial grade granite blocks of similar color supplied by
quarriers located throughout the world. There are approximately
130 manufacturers of granite memorials in North America. There
are also manufacturers of granite memorials in India, South
Africa, China and Portugal that sell finished memorials in North
America.
Our quarrying and manufacturing competitors include both
domestic and international companies, some of which may have
greater financial, technical, manufacturing, marketing and other
resources. Foreign competitors may have access to lower cost
labor and better commercial deposits of granite, and may be
subject to less restrictive regulatory requirements.
We cannot assure you domestic or foreign competition will not
adversely impact our business.
F-13
The
increasing trend toward cremation, and potential declines in
memorialization for other reasons, may result in decreased sales
of our products.
There is an increasing trend toward cremation in the United
States. The latest statistics from the Cremation Association of
North America, or CANA, indicate cremation was used in
approximately 37% of the deaths in the United States in 2009,
compared to approximately 29% in 2003. To the extent increases
in cremation rates result in decreases in memorialization rates,
this decrease will result in a decline in our memorial sales,
which will adversely affect our business and results of
operations.
Our business is also subject to the risk that memorialization
rates may decline over time for other reasons. Certain
cemeteries have in the past and may in the future limit the use
of granite memorials as a memorialization option. To the extent
general memorialization rates or the willingness of cemeteries
to accept granite memorials declines, this decline could
adversely affect our business.
Sales
of our products are seasonal and may cause our quarterly
operating results to fluctuate.
Historically, our operations have experienced certain seasonal
patterns. Generally, our net sales are highest in the second or
third quarter and lowest in the first quarter of each year due
primarily to weather. Cemeteries in northern regions generally
do not accept granite memorials during winter months when the
ground is frozen because they cannot be properly set. We
typically close our Vermont and Canadian quarries from January
to late March because of increased operating costs attributable
to weather conditions. We have historically incurred an
aggregate net loss during the first three months of each
calendar year. Our operating results may vary materially from
quarter to quarter due to, among other things, changes in
product mix, shipping conditions and limitations on the timing
of price increases, making quarterly
year-to-year
comparisons less meaningful.
Our
competitive position could be harmed if we are unable to protect
our intellectual property rights.
We believe our tradenames, trademarks, brands, designs and other
intellectual property are of great value, and we rely on
trademark, copyright and other proprietary rights laws to
protect our rights to this valuable intellectual property. Third
parties may, in the future, try to challenge our ownership of
our intellectual property. In addition, our business is subject
to the risk of third parties counterfeiting our products or
infringing on our intellectual property rights. We may need to
resort to litigation in the future to protect our intellectual
property rights, which could result in substantial costs and
diversion of resources. Our failure to protect our intellectual
property rights, most notably the Rock of Ages trademark, could
have a serious adverse effect on our business and competitive
position.
Sales
of our ancillary products are cyclical, which may adversely
affect our operating results.
The markets for our industrial precision products, which include
machine base and surface plates that are utilized in the
automotive, aeronautic, computer, machine tool, optical,
precision grinding and inspection industries, and granite press
rolls used in the manufacture of paper, are subject to
substantial cyclical variations. Sales of these products are
subject to decline as a result of general economic downturns, or
as a result of uncertainties regarding current and future
economic conditions that generally affect such industries. We
cannot assure you changes in the industries to which we sell our
precision products will not adversely affect our operating
results.
Existing
stockholders are able to exercise significant control over
us.
Kurt M. Swenson and his brother, Kevin C. Swenson, collectively
have 66% of the total voting power of all outstanding shares of
our common stock, and will therefore be in a position to control
the outcome of most corporate actions requiring stockholder
approval, including the election of directors and the approval
of transactions involving a change in control of the Company.
F-14
Our
common stock is thinly traded; therefore, our stock price may
fluctuate more than the stock market as a whole.
Although our shares are traded on the Nasdaq Stock Market, our
stock is thinly traded. As a result, its market price may
fluctuate significantly more than the stock market as a whole or
the stock prices of similar companies. Without a larger float,
our common stock will be less liquid than the stock of companies
with broader public ownership, and as a result, the trading
prices for our common stock may be more volatile. Among other
things, trading of a relatively small volume of common stock may
have a greater impact on the trading price than would be the
case if the public float were larger.
We may
incur substantial costs to comply with government
regulations.
Our quarry and manufacturing operations are subject to
substantial regulation under federal, state and foreign
governmental statutes and by federal, state and foreign
governmental agencies, including the federal Occupational Safety
and Health Act, the Mine Safety and Health Administration and
similar state and Canadian authorities. Our operations are also
subject to extensive laws and regulations administered by the
United States Environmental Protection Agency and similar state
and Canadian authorities, for the protection of the environment,
including but not limited to those relating to air and water
quality, and solid and hazardous waste handling and disposal.
These laws and regulations may require parties to fund remedial
action or to pay damages regardless of fault. Environmental laws
and regulations may also impose liability with respect to
divested or terminated operations even if the operations were
divested or terminated many years ago. In addition, current and
future environmental or occupational health and safety laws,
regulations or regulatory interpretations may require
significant expenditures for compliance, which could require us
to modify or curtail our operations. We cannot predict the
effect of such laws, regulations or regulatory interpretations
on our business, financial condition or results of operations.
Any material non-compliance could adversely affect our business
and results of operations.
Provisions
of our corporate organizational documents could delay or prevent
a change in control of the Company, even if it would be
beneficial to our stockholders.
Certain provisions contained in our Articles of Incorporation
and By-laws:
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grant ten votes per share to each share of Class B Common
Stock;
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divide the Board of Directors into three classes, each of which
will have a different three-year term;
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provide that stockholders may remove directors from office only
for cause and by a supermajority vote;
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provide that special meetings of the stockholders may be called
only by the Board of Directors or certain Company officers and
not by stockholders;
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establish certain advance notice procedures for nomination of
candidates for election as directors and for stockholder
proposals to be considered at annual stockholders meetings;
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authorize the issuance of preferred stock. Accordingly, the
Board of Directors is empowered, without stockholder approval,
to issue preferred stock with dividend, liquidation, conversion,
voting or other rights that could materially adversely affect
the voting power or other rights of, or be dilutive to, the
holders of our Common Stock.
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Certain of these provisions may have the effect of discouraging,
delaying or preventing a change in control or unsolicited
acquisition proposals a stockholder may consider favorable.
F-15
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ITEM 1B.
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UNRESOLVED
STAFF COMMENTS
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Not applicable.
Rock of Ages owns the following quarry and manufacturing
properties:
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Property
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Function
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VERMONT
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Barre
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Quarry Properties
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E. L. Smith Quarry
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Quarrying of dimensional Barre Gray granite blocks
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Adam-Pirie Quarry
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Quarrying of dimensional Barre Gray granite blocks
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Manufacturing Properties
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Rock of Ages Manufacturing Plant
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Manufacturing of memorials and precision products
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Press Roll and Saw Plant
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Manufacturing of granite press rolls and slabbing of granite
blocks
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Bethel
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Quarry Property
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Bethel Quarry
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Quarrying of dimensional Bethel White granite blocks
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CANADA
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Stanstead, Quebec
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Quarry Property
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Stanstead Quarry
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Quarrying of dimensional Stanstead Gray granite blocks
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Stanstead Quarry # 2
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Quarrying of dimensional Stanstead Gray granite blocks
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Manufacturing Properties
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Rock of Ages Manufacturing Plant
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Manufacturing of memorials
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Adru Manufacturing Plant
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Manufacturing of memorials
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Guenette, Quebec
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Quarry Property
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Laurentian Quarry
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Quarrying of dimensional Laurentian Pink granite blocks
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PENNSYLVANIA
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St. Peters
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Quarry Property
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American Black Quarry
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Quarrying of dimensional American Black granite blocks
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Manufacturing Property
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Saw Plant
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Slabbing of granite blocks
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NORTH CAROLINA
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Salisbury
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Quarry Property
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Salisbury Pink Quarry
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Quarrying of dimensional Salisbury Pink granite blocks
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Rockwell
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Quarry Properties
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Gardenia White Quarry
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Quarrying of dimensional Gardenia White granite blocks
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In addition, until January 17, 2008 Rock of Ages owned or
operated approximately 80 retail sales outlets and 4 associated
sand blasting facilities in the states of Iowa, Illinois,
Indiana, Minnesota, Connecticut, Massachusetts, Rhode Island,
Nebraska, Pennsylvania, Ohio, South Dakota, Kentucky, Tennessee,
Vermont, West Virginia and Wisconsin. On January 17, 2008,
we sold all of our retail operations to PKDM Holdings, Inc. and
exited the retail business entirely
F-16
The following table sets forth certain information relating to
our principal quarry properties. Each of the quarries listed
below: (i) is an open-pit quarry; (ii) contains
granite suitable for extraction as dimension granite for
memorial or other use; (iii) is serviced by electricity
provided by local utility companies; and (iv) has adequate
and modern extraction and other equipment. We presently have no
exploration plans. We own each of the quarries listed below. In
the Rockwell quarry, we own part of the land comprising the
quarry and we also lease an additional 14 acres on which we
conduct quarry operations with 6 years remaining on the
lease. We also own the Laurentian Pink quarry in Guenette,
Quebec, which produces dark pink memorial grade granite. We also
have the worldwide distribution rights to the Galactic Blue
quarry in Zhytomyr, Ukraine. The Galactic Blue quarry is under
development and currently produces granite in small commercial
quantities. We do not expect the quarry to achieve significant
commercial production quantities in 2010. We do not consider the
Laurentian Pink or Galactic Blue properties to be currently
significant or material to our business.
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Estimated Net
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Estimated Net
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Approximate
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Saleable
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Saleable
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Date of
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Recoverable
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Recoverable
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Commencement
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Prior Owner
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Means of
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Original Cost of
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Reserves(1)
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Reserves
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Quarry
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of Operations
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(Date Acquired)
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Access
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Each Property
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(Cubic Feet)
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Years(2)
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E.L. Smith
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1880
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E.L. Smith Quarry Co. (1948)
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Paved road
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$
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7,562,676
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2,459,534,000
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4,916
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Adam-Pirie
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1880
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J.K. Pirie Quarry (1955)
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Paved road
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$
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4,211,363
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984,886,000
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6,557
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Bethel
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1900
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Woodbury Granite Company, Inc. (1957)
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Dirt road
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$
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174,024
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76,529,000
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271
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Stanstead
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1920
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Brodies Limited and Stanstead Granite Company (1960)
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Paved road
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$
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505,453
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32,563,000
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155
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Stanstead # 2
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1967
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Carrieres Polycor, Inc., (2009)
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Dirt Road
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$
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1,000,000
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7,110,000
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100
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American Black
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1973
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Pennsylvania Granite Inc. (1997)
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Paved road
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$
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2,900,000
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14,615,000
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137
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Salisbury
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1918
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Pennsylvania Granite Inc. (1997)
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Paved road
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$
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3,886,592
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19,344,000
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100
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Gardenia White*
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1995
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J. Greg Faith, Thomas E. Ebans, Sr. David S. Hooker, William L.
Comolli (1998)
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Dirt road
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$
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4,633,000
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2,602,000
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Rockwell White*
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1993
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Rockwell Granite Company (2005)
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Dirt road
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$
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1,930,000
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5,950,000
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78
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*
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The Gardenia White and Rockwell White quarries are side by side,
produce the same type of granite and are being joined together.
For operating purposes we report all granite extracted and sold
from the properties as Gardenia White.
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(1)
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Net saleable recoverable reserves are based on internal Company
estimates, except for the reserves for the E.L. Smith,
Adam-Pirie and Bethel quarries, which are based on independent
assessments by CA Rich Consultants, Inc in 1993; and for the
Gardenia White quarry, which are based on an independent
assessment by Geomapping Associates in 1997. The Rockwell White
reserves are based on information contained in a report dated
September 1993 by a geologist employed by The Marlin Group. It
is impossible to know the exact percentage of recoverable
reserves and a certain amount of material will not be saleable
as a result of natural cracks, seams, color variations, or other
natural defects in the quarry that are not discoverable through
random core drilling samples. Reductions in recovery rates of
saleable stone can dramatically increase the cost of the
saleable stone making the quarry not commercially viable.
Accordingly, these quantities are purely estimates based on
observable surface area size times commercially feasible depths
for quarrying granite, adjusted for historic recovery rates.
Thus, the actual quantities and years of net saleable reserves
could vary materially from the estimates set forth in the table.
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(2)
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See Note 1 above. Based on internal Company estimates using
historical and current production levels.
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The estimates of saleable reserves are based on historical
quarry operations, workable reserves in the existing quarries
and immediately adjacent areas, current work force sizes and
current demand. While quarry operations decrease the granite
deposits, the size of the granite deposits in which our quarries
are located are large and extend well beyond existing working
quarry perimeters. We have historically expanded quarry
perimeters or opened other quarries in the deposit as necessary
to utilize reserves and we believe we have adequate acreage for
expansions as and when necessary. Currently, we have no reason
to believe we will
F-17
deplete our granite reserves more quickly than is shown in the
table, assuming recovery rates and demand remain at current
levels.
Dimension granite is not considered a valuable mineral or
commodity such as gold, nor is it traded on any commodities
exchange. The prices we charge to third parties for granite
blocks depend on characteristics such as color of and costs to
quarry each granite block, as well as market conditions. The
price per cubic foot we currently charge for our granite blocks
is generally comparable to other granite suppliers and typically
does not exceed $45.
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ITEM 3.
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LEGAL
PROCEEDINGS
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We are a party to legal proceedings that arise from time to time
in the ordinary course of our business. While the outcome of
these proceedings cannot be predicted with certainty, we do not
expect these matters to have a material adverse effect on our
business or financial condition.
We carry insurance with coverage we believe to be customary in
our industry. Although there can be no assurance that such
insurance will be sufficient to protect us against all
contingencies, we believe our insurance protection is reasonable
in view of the nature and scope of our operations.
The U.S. Mine Safety and Health Administration (MSHA)
issued citations in 2009 to one of our subsidiaries,
Pennsylvania Granite, asserting various violations and assessed
fines totaling approximately $280,000. The Company disagrees
with the validity of these violations and how they are
characterized. We are appealing the citations. Based on
experience of our legal counsel in settling similar assessments
and available historical MSHA settlement data we estimate our
final exposure will be no greater than $125,000.
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ITEM 4.
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SUBMISSION
OF MATTERS TO A VOTE OF SECURITY HOLDERS
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A special meeting of the Stockholders of Rock of
Ages Corporation (the Special Meeting) was held
on Thursday, October 15, 2009 at 10:30 a.m., local
time, for the purpose of considering and voting upon the
proposal to reincorporate the Company from the State of Delaware
to the State of Vermont (the Reincorporation
Proposal). The Reincorporation Proposal was approved by
the stockholders at the Special Meeting, and the Reincorporation
was effective as of December 8, 2009.
A full description of the Reincorporation Proposal is contained
in our proxy statement for the Special Meeting dated
September 17, 2009 and filed with the Commission on
September 17, 2009.
Our Class A Common Stock is entitled to one vote per share
and our Class B Common Stock is entitled to ten votes per
share. At the Special Meeting an aggregate of
2,625,511 shares of Class A Common Stock and an
aggregate of Class B Common Stock, totaling 26,012,631
votes, were represented at said meeting. With respect to the
Special Meeting and the Reincorporation Proposal, the results
were tabulated by the Judge of Elections as follows:
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TOTAL:
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26,012,631
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FOR:
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25,875,193
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AGAINST:
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114,079
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ABSTAIN:
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23,359
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F-18
PART II
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ITEM 5.
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MARKET
FOR THE REGISTRANTS COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS AND ISSUER PURCHASES OF EQUITY
SECURITIES
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Our Class A Common Stock is traded on the Nasdaq Global
Market under the symbol ROAC. There is currently no
established public trading market for the Class B Common
Stock, however, the Class B Common Stock is convertible at
any time into shares of Class A Common Stock. The table
below sets forth the range of high and low per share sales
prices for the Class A Common Stock as reported on the
Nasdaq Global Market for the periods indicated.
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2009
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High
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Low
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First Quarter
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$
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2.48
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$
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1.49
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Second Quarter
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2.48
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1.68
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Third Quarter
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3.88
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1.85
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Fourth Quarter
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3.66
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2.65
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2008
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High
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Low
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First Quarter
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$
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5.45
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$
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3.98
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Second Quarter
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4.33
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3.27
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Third Quarter
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3.36
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1.85
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Fourth Quarter
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3.39
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1.29
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As of February 24, 2010, based upon information provided by
our transfer agent, there were 202 record holders of
Class A Common Stock and 26 record holders of Class B
Common Stock, which numbers do not include stockholders who
beneficially own shares held in street name by brokers.
Holders of the Common Stock are entitled to receive such
dividends as may be legally declared by the Board of Directors
and, in the event of dissolution and liquidation, to receive the
net assets of Rock of Ages remaining after payment of all
liabilities, in proportion to their respective holdings. No
dividends were paid in 2009 or 2008. In October 2007, we renewed
our credit facility with our lenders, which, in relevant part,
prohibits the Company from paying dividends without their prior
consent.
RECENT
SALES OF UNREGISTERED SECURITIES
We made no sales of unregistered securities during fiscal 2009.
ISSUER
PURCHASES OF EQUITY SECURITIES
Neither we nor our affiliates made any purchases of the
Companys equity securities during fiscal 2009.
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ITEM 6.
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SELECTED
FINANCIAL DATA
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Not required for smaller reporting companies.
F-19
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ITEM 7.
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MANAGEMENTS
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
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The following discussion should be read in conjunction with the
Consolidated Financial Statements, including the related Notes,
contained elsewhere in this document.
General
Rock of Ages is an integrated quarrier and manufacturer of
granite and products manufactured from granite. Until
January 17, 2008, we were also engaged in the retail sale
of memorials. On January 17, 2008, we sold all of our
retail operations and exited the retail business entirely.
Accordingly, during 2009, we had two business segments: quarry
and manufacturing. The quarry division sells granite blocks to
the manufacturing division and to outside manufacturers, as well
as to customers outside North America. The manufacturing
divisions principal product is granite memorials and
mausoleums used primarily in cemeteries, although it also
manufactures some specialized granite products for industrial
applications. The retail division primarily sold granite
memorials directly to consumers.
In 2009, revenue from our quarry division was $22 million,
down 24% from $29 million in 2008, however divisional
operating income increased to $2.8 million compared to
$1.2 million in 2008. The increase in divisional operating
income is solely due to the effect of the $3.9 million
inventory write-down taken in the fourth quarter of 2008 in our
export quarries of Bethel, Salisbury and Gardenia. Excluding the
effect of the inventory write-down, quarry divisional income in
2008 would have been $5.1 million, and 2009 would have had
a 45% decrease in divisional income from the prior year.
During 2009, demand for our granites in export markets continued
to be strong but domestic demand for our Barre Gray granite
continued to decline slowly. Unfortunately, we experienced
production problems related to the quality of the granite
deposits we are currently working in our Bethel and Gardenia
quarries, which had a negative impact on the Quarry
Divisions 2009 results on both net revenue and gross
profit. The shortage of saleable blocks in these quarries also
negatively impacted sales of our Salisbury Pink granite. We are
continuing to work through the granite deposits and are engaged
in additional quarry development work in each of those quarries
to increase the amount of saleable blocks from each quarry. The
following is a brief analysis of each of the individual quarries.
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The Barre Gray quarry saw a decline in sales of 14% or
$1.3 million. This granite is mainly used for memorials and
this percentage decrease is commensurate with the decrease in
manufacturing sales. We believe much of the decrease in sales is
due to the poor economy. However we also believe that imported
granites, which generally are less expensive, are likely being
substituted in the lower end of the memorials market and the
color choices among granites in the memorial markets has reduced
the share of gray granite as a percentage of the market.
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The Bethel quarry had a very difficult year. We experienced
production problems in the third quarter of the year, which
persisted through the end of the
4
th
quarter of 2009. Due to the lack of enough saleable blocks,
sales suffered greatly. Net sales in this quarry decreased 46%
from 2008 levels. However, due to many cost-cutting measures,
the gross profit margin was comparable with 2008 levels
(excluding the 2008 inventory write-down). We continue to work
at developing new areas of the quarry to ensure that future
production will satisfy customer demand. Bethel White is very
popular for building purposes and demand for this granite is
still strong with our international customers.
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The Salisbury Pink quarry in North Carolina experienced an 18%
decline in net sales but maintained the same gross profit margin
percentage (excluding the 2008 inventory write-down). We believe
the demand for this stone is linked closely to the availability
not only of this stone but all of our export blocks, especially
Bethel and Gardenia White since our customers inspectors
generally visit all of our quarries in one visit. Accordingly,
we believe the lack of available stone in those quarries
contributed to the decrease in sales in Salisbury. This granite
is also mainly used for building purposes and demand remains
strong with our international customers.
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F-20
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Our Gardenia and Rockwell White quarries had a difficult year.
During the normal production process in 2009 we spent a
considerable amount of time and money to convert this quarry
from a deep-hole quarry to a drive-in quarry. In the long term
this step will lead to increased quantities of saleable granite
blocks produced annually and reduced costs of extraction, but in
the short-term it resulted in reduced production and higher
costs. We didnt have enough saleable stone to meet demand
in 2009 and sales were down 25%, but we believe the quarry is in
good position to increase production in 2010 and the demand for
this stone remains very strong.
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The American Black quarry net revenue was down 26% from 2008
because of poor recovery rates. This is a difficult quarry to
operate as it has the lowest recovery rate of all our quarries.
However, we can sell all the saleable blocks we produce since
the stone is very popular with our customers. This is a full
drive-in quarry and we continue to work on the production and
recovery issues.
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Net sales from our Canadian quarries increased by 5% over 2008
as a result of the purchase of the Polycor Quarry in April 2009.
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On June 30, 2009, the Company agreed to sell its one-third
ownership interest in VIKA to the remaining VIKA shareholder for
$170,583 payable in four equal installments of $42,646 due from
July to October 2009. All payments were collected by the end of
the year. In conjunction with this sale, the Company entered
into an exclusive distribution agreement with VIKA pursuant to
which the Company has the exclusive worldwide right to sell and
distribute all quarried products of VIKA including slabs and
other finished products for a period of five years. Production
is still poor as VIKA continues to develop the quarry.
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We will continue to aggressively market our granite blocks in
the U.S. and abroad and make productivity improvements to
control costs and recovery rates.
The manufacturing divisions 2009 net revenue
decreased 12% to $23.9 million compared to
$27.2 million in 2008 as a result of sales decreases in
memorials, mausoleums and precision products. Gross margin
decreased by 1% and SG&A decreased $450,000. The entire
division was significantly affected by the continued downturn in
the economy. However, our backlog at December 31, 2009 is
up $300,000 from year-end 2008. We will continue to pursue a
strategy of focusing on the mausoleum and large features market
where our product is superior and margins are generally higher,
as well as increasing our efforts to expand our wholesale
distribution system to the cemetery, funeral home and
traditional memorial retailers to grow our traditional monument
business.
Critical
Accounting Policies
General
Managements Discussion and Analysis of Financial Condition
and Results of Operations is based upon our Consolidated
Financial Statements, which have been prepared in accordance
with accounting principles generally accepted in the United
States of America (U.S. GAAP). The preparation of these
financial statements requires management to make estimates and
assumptions that affect the reported amounts of assets,
liabilities, revenue and expenses, and related disclosure of
contingent assets and liabilities. Management bases its
estimates on historical experience and on various other
assumptions that are believed to be reasonable under the
circumstances. Management has discussed the development,
selection and disclosure of these estimates with the Audit
Committee and our independent auditor. Actual results may differ
from these estimates.
An accounting policy is deemed to be critical if it requires an
accounting estimate to be made based on assumptions about
matters that are highly uncertain at the time the estimate is
made, and if different estimates that reasonably could have been
used, or changes in the accounting estimates that are reasonably
likely to occur periodically, could materially impact the
financial statements.
Our critical accounting policies are as follows: revenue
recognition, impairment of long-lived assets and long-term
investments, valuation of deferred tax assets, accounting for
pensions and other post-employment benefits and valuation of
inventory.
F-21
Revenue
Recognition
Quarry
Division
The granite we quarry is sold to outside customers and used by
our manufacturing group. Our quarry division recognizes revenue
from sales of granite blocks to outside customers when
persuasive evidence of an arrangement exists, delivery has
occurred or the services have been provided and accepted by the
customer, fees are determinable and collectibility is reasonably
assured. We generally provide a 5% discount for domestic
customers if payment is made within 30 days of purchase,
except in the case of December terms described below. Sales to
foreign customers are typically secured by a letter of credit.
At our Barre, Vermont quarries, we allow customers to purchase
granite blocks and at their request we store the blocks for
them. Many of our customers do not have adequate storage space
at their facilities and want to ensure an adequate supply of
blocks, especially when the Barre quarries are closed from
mid-December through March because of weather. Our quarry
division recognizes revenue in accordance with current
accounting literature regarding revenue recognition. Blocks are
sold when: the customer selects and identifies the block at the
quarry site, requests the block be stored and they have
significant business reasons to do so. At that time, the block
is removed from our inventory, the customers name is
printed on the block, and title and risk of loss pass to the
buyer. The customer is invoiced and normal payment terms apply,
except in the case of December terms described below. Granite
blocks owned by customers remain on our property for varying
periods of time after title passes to the buyer. We retain a
delivery obligation using our trucks. However, we consider the
earnings process substantially complete because the cost of
delivery service is inconsequential (less than 3%) in relation
to the price. Further, under industry terms of trade, title
passes and the payment obligation is established when the block
is identified at the quarry.
Each December, we offer special payment terms to our Barre
quarries customers. As noted above, from approximately
mid-December to approximately March, our Barre quarries are
closed due to weather. During this time, manufacturing plants
remain open and many customers prefer to ensure they own blocks
of a size and quality selected by them prior to the
quarries closure. All blocks purchased in December are
invoiced on or about December 31 and, at that time, the blocks
are removed from inventory, the customers name is printed
on the blocks, and title and risk of loss pass to the buyer.
Payment terms are one-third of the invoice amount on
January 15, one-third on February 15, and one-third on
March 15. The program provides essentially the normal
30-day
payment terms during the months when the Barre quarries are
closed notwithstanding the customer purchases a three-month
supply in December and makes payments over 90 days.
Customers need not use these special December terms and may buy
from inventory during the closure period on a first-come,
first-served basis with the normal
30-day
payment terms.
Manufacturing
Division
We record revenue related to internally transferred granite only
after the granite is manufactured into a finished product and
sold to an outside customer. Manufacturing revenues related to
outside customers are recorded when the finished product is
shipped from our facilities or set in the cemetery, if we are
responsible for the setting, which is when risk of ownership
transfers, assuming the other criteria for revenue recognition
(persuasive evidence of an arrangement exists and collectibility
is reasonably assured) have been met.
Impairment
of long-lived assets
Our long-lived assets consist primarily of property and
equipment. Long-lived assets are reviewed for impairment
whenever events or changes in circumstances indicate the
carrying amount of such an asset may not be recoverable. Such
events or circumstances include, but are not limited to, a
significant decrease in the fair value of the underlying
business or change in utilization of property and equipment.
Recoverability of the un-depreciated cost of property and
equipment is measured by comparison of the carrying amount to
estimated future undiscounted net cash flows the assets are
expected to generate. Those cash flows include an estimated
terminal value based on a hypothetical sale at the end of the
assets depreciation period. Estimating these cash flows
and terminal values requires management to make judgments
F-22
about the growth in demand for our products, sustainability of
gross margins, and our ability to achieve economies of scale. If
assets are considered to be impaired, the impairment to be
recognized is measured as the amount by which the carrying
amount of the long-lived asset exceeds its fair value.
Valuation
of deferred tax assets
In assessing the realizability of deferred tax assets,
management considers whether it is more likely than not some
portion or all of the current and deferred tax assets will not
be realized. The ultimate realization of current and deferred
tax assets depends upon the generation of future taxable income
during the periods in which those temporary differences become
deductible. Management considers the scheduled reversal of
deferred tax liabilities, projected future taxable income and
tax planning strategies in making this assessment. This
assessment is made each reporting period. At the end of the
second quarter of 2005, we adjusted our valuation allowance
against the deferred tax assets to fully reserve for the entire
net U.S. deferred tax asset. At the end of each of the
subsequent periods we reached a similar conclusion, therefore we
have continued to fully reserve for the entire net
U.S. deferred tax asset. We will continue to assess the
valuation allowance on a regular basis and may reduce the
valuation allowance when the Company has sufficient taxable
income from its U.S. operations in the future.
Accounting
for pensions and other post-employment
benefits
We provide defined benefit pension and other post-employment
benefit plans for certain employees. Accounting for these plans
requires the use of actuarial assumptions including estimates on
the expected long-term rate of return on assets, discount rates
and, to a lesser extent, the rates of increase in compensation
and health care costs (due to the small number of individuals
receiving this benefit). The expected long-term rate of return
has remained the same at 8% and reflects the average long-term
rate of earnings expected on the funds invested or to be
invested to provide for the benefits included in the projected
benefit obligation. In 2009, we changed the discount rate used
to determine our liability in the pension plans to 5.9% from
6.3%, the rate used at December 31, 2008. In both years
this rate was determined based on a bond matching model which
uses data on individual high-quality corporate bonds and the
timing and amount of the future benefit payments in our plan to
develop a weighted discount rate specific to our plan. On
January 5, 2009, the Companys Board of Directors
approved actions to proceed with amendments to its defined
benefit pension plan by freezing membership and future benefits
in the plan. This action was effective as of March 31,
2009. In order to make informed assumptions, we rely on outside
actuarial experts as well as public market data and general
economic information. Any changes in one or more of these
assumptions may materially affect certain amounts reported on
our balance sheet. In particular, a decrease in the expected
long-term rate of return on plan assets or a decrease in
discount rate could result in an increase in our pension
liability and a charge to equity as well as increases in pension
expenses over time.
Inventory
Inventories are valued at the lower of cost or market. Cost is
determined using the specific annual average cost method for the
quarry segment and the specific cost method for the
manufacturing segment. Inventory is reviewed regularly for
excess inventory based on a forecast of product demand.
Inventories that are in excess of expected future demand are
written down to their estimated value based upon projected
demand. Demand for our products can be forecasted based on
historical experience, current orders, age of the inventory and
discussions with customers. Although management makes every
effort to ensure the reasonableness of its forecasts of future
product demand, any significant unanticipated changes in demand
could have an impact on the level of excess material in our
inventories and operating results could be affected accordingly.
F-23
Results
of Operations
The following table sets forth certain historical statement of
operations data as a percentage of net revenues with the
exception of quarry and manufacturing cost of goods sold, gross
profit and selling, general and administrative expenses, which
are shown as a percentage of their respective divisions
net revenues.
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|
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Year Ended December 31,
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2009
|
|
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2008
|
|
|
STATEMENT OF OPERATIONS DATA:
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|
Net revenues:
|
|
|
|
|
|
|
|
|
Quarry
|
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47.6
|
%
|
|
|
51.3
|
%
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Manufacturing
|
|
|
52.4
|
%
|
|
|
48.7
|
%
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
|
100.0
|
%
|
|
|
100.0
|
%
|
Cost of goods sold:
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|
|
|
|
|
|
|
|
Quarry
|
|
|
76.9
|
%
|
|
|
74.4
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%
|
Quarry inventory write-down
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|
|
|
|
|
|
13.7
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%
|
Manufacturing
|
|
|
73.7
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%
|
|
|
72.5
|
%
|
|
|
|
|
|
|
|
|
|
Total cost of goods sold
|
|
|
75.2
|
%
|
|
|
80.5
|
%
|
Gross profit:
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|
|
|
|
|
|
|
|
Quarry
|
|
|
23.1
|
%
|
|
|
11.9
|
%
|
Manufacturing
|
|
|
26.3
|
%
|
|
|
27.5
|
%
|
|
|
|
|
|
|
|
|
|
Total gross profit
|
|
|
24.8
|
%
|
|
|
19.5
|
%
|
Selling, general and administrative expenses:
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
10.3
|
%
|
|
|
7.9
|
%
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Manufacturing
|
|
|
16.5
|
%
|
|
|
16.1
|
%
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Corporate overhead
|
|
|
6.7
|
%
|
|
|
6.5
|
%
|
Impairment of long lived asset
|
|
|
|
|
|
|
2.4
|
%
|
Effect of pension curtailment
|
|
|
0.2
|
%
|
|
|
|
|
Foreign exchange loss
|
|
|
0.3
|
%
|
|
|
|
|
Other income, net
|
|
|
(0.9
|
)%
|
|
|
(0.8
|
)%
|
|
|
|
|
|
|
|
|
|
Total SG&A expenses
|
|
|
19.9
|
%
|
|
|
20.0
|
%
|
Income (loss) from continuing operations
|
|
|
4.9
|
%
|
|
|
(0.5
|
)%
|
Interest expense
|
|
|
2.5
|
%
|
|
|
2.4
|
%
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations before income taxes
|
|
|
2.4
|
%
|
|
|
(2.9
|
)%
|
Provision for income taxes
|
|
|
0.6
|
%
|
|
|
0.7
|
%
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
|
|
|
1.8
|
%
|
|
|
(3.6
|
)%
|
Discontinued operations
|
|
|
|
|
|
|
(0.3
|
)%
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
1.8
|
%
|
|
|
(3.9
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)%
|
|
|
|
|
|
|
|
|
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Year
Ended December 31, 2009 Compared To Year Ended
December 31, 2008
On a consolidated basis for all segments for the year ended
December 31, 2009 compared to the year ended
December 31, 2008, revenue decreased 19%, gross profit
decreased 24% (excluding the 2008 inventory write-down of
$3.9 million) and total selling, general and administrative
(SG&A) expenses decreased 19% for reasons
discussed in detail in the segment analysis below.
F-24
Quarry
Segment Analysis
Revenues in our quarry operations for the year ended
December 31, 2009 decreased 24% to $21.7 million,
compared to $28.7 million in 2008. See the discussion in
this Item 7
Management Discussion and
Analysis of Financial Condition and Results of
Operations
General for a detailed
discussion of each quarry.
Gross profit decreased 32% or $2.3 million (excluding the
2008 inventory write-down of $3.9 million). The decreased
sales also drove our gross margin down 2.5 percentage
points to 23.1%.
SG&A expenses in our quarry segment for 2009 of
$2.2 million were down slightly, by $24,000, from 2008.
Manufacturing
Segment Analysis
The manufacturing divisions 2009 net revenue
decreased by 12% to $23.9 million compared to
$27.2 million in 2008. Mausoleum and memorial sales
decreased by about $2 million and sales of industrial
products decreased by $1.3 million in 2009 compared to
2008. These decreases are a direct result of the poor economy
and to a lesser extent the decrease in the average foreign
exchange rate from 2008 to 2009. At December 31, 2009 the
manufacturing backlog is $300,000 greater than at
December 31, 2008 and customer deposits on mausoleums or
large civic monuments are $320,000 higher than the prior year.
Gross profit dollars from the manufacturing group decreased 16%
or $1.2 million and gross profit as a percentage of revenue
decreased 1.2 percentage points for the year ended
December 31, 2009 compared to 2008. The decrease in gross
profit margin is primarily due to the decreased sales of higher
margin mausoleums and industrial products.
SG&A expenses for the manufacturing group were down
$450,000 or 10% from the prior year primarily as a result of
decreased bad debt expense, commissions and incentive accruals
and partially due to the decrease in the foreign exchange rate.
Consolidated
Items
Unallocated corporate overhead decreased 16%, or $594,000 from
the prior year. The majority of this decrease can be attributed
to decreased salary and benefit costs, professional service fees
and office expenses due to decreased staff.
Due to the consolidation of our corporate headquarters in the
manufacturing plants existing offices in 2008, the Company
had a change in the use of its corporate headquarters building
located at 772 Graniteville Road, which we concluded to be an
event that triggered an impairment analysis. We determined that
the forecasted undiscounted cash flows related to the building
and land was less than its carrying value. As a result, in 2008
we recorded an impairment charge of $1,348,000 to reduce the
carrying value of the building and land to its estimated fair
value. The estimated fair value was based on a discounted cash
flow analysis and included consultation with an outside
professional real estate appraiser. No assurance can be given
that the underlying estimates and assumptions utilized in our
determination of an assets new carrying value will
materialize as anticipated. As of April 4, 2009, management
had made the decision to sell this building and it has been
classified as an asset held for sale since then.
Foreign exchange losses in 2009 were $131,000 compared to a gain
in 2008 of $27,000 resulting from the effect of the fluctuating
value of the US dollar compared to the Canadian dollar on
transactions that are originated in US dollars in our Canadian
operations.
Total interest expense was approximately $1.2 million in
2009 as compared to $1.4 million in 2008. Total interest
expense decreased only $200,000 even though weve decreased
debt $7.5 million during the year as a result of the
increase in our borrowing rates instituted by our lenders as of
March 31, 2009.
The income tax expense for 2009 was $280,000 compared with
$395,000 for 2008. The tax expense in 2009 is made up of taxes
at our Canadian subsidiary plus the accrual of the 5% Canadian
withholding tax on a $4 million expected dividend plus the
U.S. federal and state taxes on that dividend. Under the
rules of the
F-25
Housing Assistance Tax Act of 2008, the Company has elected to
forgo bonus depreciation and claim accelerated AMT credit
carryforward from tax years beginning before 2006. The Company
elected for 2008 and 2009 to benefit from the monetization of
AMT credits and included in the 2009 US provision is $302,000 of
tax benefit. The tax expense in 2008 reflects taxes at our
Canadian subsidiary.
We had a loss from the discontinued retail operations of
$142,000 in 2008. The 2008 loss is made up of $119,000 of
operating losses and $23,000 of allocated interest.
Liquidity
and Capital Resources
In light of the current economic situation, we evaluated our
future liquidity needs, both from a short-term and long-term
(i.e. more than one year) basis. We believe cash on hand plus
cash generated from operations along with cash available under
credit lines will be sufficient in 2010 to service debt, finance
capital expenditures, fund operations and fund the pension plan.
To provide for long-term liquidity, we believe we can generate
substantial positive cash flow, as well as obtain additional
capital, if necessary, from the use of subordinated debt or
equity. In the event that our current capital resources are not
sufficient to fund requirements, we believe our access to
additional capital resources would be sufficient to meet our
needs, although the financing terms available could be
significantly different than our current terms.
Historically, we have met our short-term liquidity requirements
primarily from cash generated by operating activities and
periodic borrowings under the commercial credit facilities
described below. Our credit facility with our Lenders was
renewed on October 27, 2007 for a term of five years.
In January 2008, we received $7.6 million in net proceeds
from the sale of the retail division. We applied
$4.5 million of these proceeds to the long-term debt and
$3.1 million to the revolving credit facility. During 2009
we generated $10.5 million in cash from operations and
applied $7.2 million to the revolving credit facility and
$261,000 to long-term debt.
Due to the significant worldwide decline that began in 2008 in
equity prices and the value of other financial investments, the
fair value of the assets held by our defined benefit pension
plan decreased by $5.4 million in 2008. While the asset
values have recovered by approximately $3 million in 2009,
the plan is still under-funded by $4.8 million as of
December 31, 2009. We have historically contributed between
$750,000 and $1.0 million per year to the plan. We
contributed $1.0 million for 2009 and expect to contribute
approximately the same amount in 2010. We will continue the
process of funding the unfunded liability which, we believe, we
will be able to fund either from cash from operations or
borrowing under our credit facilities. See Item 1A, Risk
Factors and note 8 of the Notes to Consolidated Financial
Statements.
Our primary need for capital will be to maintain and improve our
quarrying and manufacturing facilities. We have approximately
$2 million budgeted for capital expenditures in 2010.
Cash
Flow
At December 31, 2009, we had cash and cash equivalents of
approximately $1.7 million and working capital of
approximately $21 million, compared to approximately
$888,000 million of cash and cash equivalents and working
capital of approximately $21 million at December 31,
2008.
Cash from Operations.
Net cash provided by
operating activities was $10.5 million in 2009 compared to
$2.3 million in 2008. The $10.5 million is made up
mainly of net income of $802,000, depreciation of
$2.5 million, a decrease in accounts receivable of
$6.2 million and a decrease in inventory of
$2.4 million offset by a decrease in payables and pension
liabilities of $1.5 million. The $2.2 million net loss
in 2008 is adjusted by the non-cash impairment charges of
$5.3 million and depreciation of $2.4 million and
offset by a large increase in accounts receivable along with
decreases in accounts payable, customer deposits and pension
liabilities.
Cash from Investing Activities.
Cash flows
used in investing activities were $2.5 million in 2009
compared to cash flows provided by investing activities of
$4.9 million in 2008. In 2009 our capital spending was
$1.7 million for property, plant and equipment (PP&E)
and $1.1 million for a quarry in Stanstead, Quebec
F-26
compared to $3.1 million for PP&E in 2008. In 2009
proceeds from sales of PP&E totaled $462,000 compared to
$473,000 in 2008. In 2008, proceeds from the sale of the retail
division totaled $7.7 million.
Cash from Financing Activities.
Financing
activities used $7.5 million in 2009 compared to
$8.0 million in 2008. In 2009 our line of credit was
reduced by $7.2 million and $261,000 was paid on our
long-term debt. In 2008 our line of credit was reduced by
$3.1 million and $5.0 million was paid on our
long-term debt.
Credit
Facility
We have a credit facility with the CIT Group/Business Credit and
Chittenden Trust Company (Lenders) that is
scheduled to expire in October 2012 and is secured by
substantially all assets of the Company located in the United
States. The facility consists of an acquisition term loan line
of credit of up to $30.0 million and a revolving credit
facility of up to another $20.0 million based on eligible
accounts receivable, inventory and certain fixed assets. Amounts
outstanding were $214,446 and $13,885,960 as of
December 31, 2009 and $7,428,085 and $14,106,939 as of
December 31, 2008, on the revolving credit facility and the
term loan line of credit, respectively. Unused availability
under the revolving credit facility was $10,745,414 as of
December 31, 2009. The term loan line of credit is
available to pay for the acquisition of quarries or
manufacturers and items incidental to the acquisitions subject
to various restrictions. The weighted average interest rate was
5.3% and 4.7% on the revolving credit facility in 2009 and 2008,
respectively. The credit facility loan agreement places
restrictions on our ability to, among other things, sell assets,
participate in mergers, incur debt, pay dividends, make capital
expenditures, repurchase stock and make investments or
guarantees, without pre-approval by the Lenders. The credit
facility agreement also contains certain covenants for a Minimum
Fixed Charge Coverage Ratio and a limit on the Total Liabilities
to Net Worth Ratio of the Company.
Minimum Fixed Charge Coverage Ratio.
The
facility requires the ratio of the sum of earnings before
interest, taxes, depreciation and amortization (EBITDA), to the
sum of income taxes paid, capital expenditures, interest and
scheduled debt repayments be at least 1.10 for any trailing
twelve-month period at the end of a quarter. As of
December 31, 2009 we were in compliance with the Minimum
Fixed Charge Coverage Ratio. Due to the non-cash impairment
charges on the write-down of inventory and the corporate
building in 2008 we were in violation of the covenant at
December 31, 2008. We received a waiver of this covenant
from the Lenders and amended the agreement effective
March 31, 2009. As a result of the amendment the unused
line fee went from .25% to .50% and the existing interest rate
pricing grid was changed as follows:
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|
|
|
|
|
|
Revolving Credit Facility
|
|
Term Loan
|
|
Previous Rate Formula
|
|
Prime or Libor +2%
|
|
Prime + .25% or Libor +2.25%
|
Amended Rate Formula
|
|
Prime + 3% or Libor + 4%
|
|
Prime + 3.5% or Libor + 4.5%
|
Total Liabilities to Net Worth Ratio.
Our
credit facility also requires that the ratio of our total
liabilities to net worth (the Leverage Ratio) not
exceed 2.0. The Leverage Ratio excludes from the calculation the
change in tangible net worth directly resulting from the
Companys compliance with accounting rules regarding
unfunded retirement liabilities, up to $6.0 million. In
relevant part, this rule required us to place on our books
certain unrecognized and unfunded retirement liabilities as of
December 31, 2006. As of December 31, 2009, we were in
compliance with the Leverage Ratio covenant.
Interest Rates.
We can elect the interest rate
structure under the credit facility based on the prime rate or
LIBOR for both the revolving credit facility and the term loan
with a LIBOR floor of 2.0%.
The rates in effect as of December 31, 2009 were as follows:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount
|
|
|
|
|
|
|
Outstanding
|
|
Formula
|
|
Effective Rate
|
|
Revolving Credit Facility
|
|
$
|
214,000
|
|
|
|
Prime + 3.0
|
%
|
|
|
6.25
|
%
|
Term Loan A
|
|
|
13.9 million
|
|
|
|
Prime + 3.5
|
%
|
|
|
6.75
|
%
|
F-27
Canadian
Credit Facility
The Companys Canadian subsidiary has a line of credit
agreement with the Royal Bank of Canada that is renewable
annually in December. Under the terms of this agreement, a
maximum of $2.5 million CDN may be advanced based on
eligible accounts receivable, eligible inventory, and tangible
fixed assets. The line of credit bears interest at the Canadian
prime rate plus 0.5%.
The Canadian subsidiary also has a non-revolving term loan which
cannot exceed $4,000,000 CDN bearing interest at the Canadian
prime rate plus 0.95%. Amortization of the loan is based on
72 months but the interest rate is negotiated yearly. There
was nothing outstanding on either loan at December 31, 2009
or December 31, 2008. However, in the first quarter of
2010, Rock of Ages Canada borrowed $4 million on their
term loan and paid a dividend of $4 million to Rock of
Ages Corporation. The Company did this to take advantage of
the historically high exchange rates, the difference in interest
rates under its credit facilities with the Royal Bank of Canada
and the CIT Group, and to take advantage of current income tax
deductions in Canada.
Off-Balance
Sheet Arrangements
With the exception of our operating leases, we do not have any
off-balance sheet arrangements, and we do not have, nor do we
engage in, transactions with any special purpose entities.
Seasonality
Historically, the Companys operations have experienced
certain seasonal patterns. Generally, our net sales have been
highest in the second or third quarter and lowest in the first
quarter of each year due primarily to weather. Cemeteries in
northern areas generally do not accept granite memorials during
winter months when the ground is frozen because they cannot be
properly set under those conditions. In addition, we typically
close certain of our Vermont and Canadian quarries during these
months because of increased operating costs attributable to
adverse weather conditions. As a result, we have historically
incurred a net loss during the first three months of each
calendar year.
Recent
Accounting Pronouncements
In December 2008, the FASB issued an amendment to the
Compensation
topic regarding employers disclosures
about postretirement benefit plan assets. This guidance requires
more detailed disclosures about plan assets of a defined benefit
pension or other postretirement plan, including investment
strategies; major categories of plan assets; concentrations of
risk within plan assets; inputs and valuation techniques used to
measure the fair value of plan assets; and the effect of
fair-value measurements using significant unobservable inputs on
changes in plan assets for the period. It is effective for
fiscal years ending after December 15, 2009, with earlier
application permitted. The adoption of this amended guidance did
not have a material effect on our financial position or results
of operations but did result in expanded financial statement
disclosures (see note 8).
In May 2009, the FASB issued the
Subsequent Events
topic
which establishes standards under which an entity shall
recognize and disclose events that occur after a balance sheet
date, but before the related financial statements are issued or
are available to be issued. The guidance is effective for fiscal
years and interim periods ending after June 15, 2009. The
Company has evaluated and disclosed subsequent events through
the date of this filing. See note 18 for a discussion of
subsequent events.
In January 2010, the FASB issued accounting guidance to enhance
fair value measurement disclosures by requiring the reporting
entity to disclose separately the amounts of significant
transfers in and out of Level 1 and Level 2 fair value
measurements and describe the reason for the transfers.
Furthermore, activity in Level 3 fair value measurements
should separately provide information about purchases, sales,
issues and settlements rather than providing that information as
one net number. These new disclosures are effective for interim
and annual reporting periods beginning after December 15,
2009, with the exception of the enhanced Level 3
disclosures, which are effective for interim and annual
reporting periods beginning after December 15, 2010.
F-28
The Company does not expect that application of this guidance
will have a material impact on our financial position or results
of operations.
|
|
ITEM 7A.
|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
Not required for smaller reporting companies.
|
|
ITEM 8.
|
FINANCIAL
STATEMENTS AND SUPPLEMENTARY DATA
|
The information required for this item is included in this
Annual Report on
Form 10-K
on Pages 43 through 72, inclusive, and is incorporated herein by
reference.
|
|
ITEM 9.
|
CHANGES
IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
|
None.
|
|
ITEM 9A(T).
|
CONTROLS
AND PROCEDURES
|
Evaluation
of Disclosure Controls and Procedures
The Company, with the participation of our Chief Executive
Officer and Chief Financial Officer, has evaluated the
effectiveness of our disclosure controls and procedures, as such
term is defined under
Rules 13a-15(e)
and
15d-15(e)
promulgated under the Securities Exchange Act of 1934, as
amended, as of December 31, 2009. Based on this evaluation,
our Chief Executive Officer and Chief Financial Officer have
determined, that such disclosure controls and procedures are
effective to ensure that information required to be disclosed in
our filings under the Securities Exchange Act of 1934 is
recorded, processed, summarized and reported within the time
periods specified in the Securities and Exchange
Commissions rules and forms. Disclosure controls and
procedures include controls and procedures designed to
reasonably ensure that such information is accumulated and
communicated to our management, including our Chief Executive
Officer and Chief Financial Officer, as appropriate to allow
timely decisions regarding required disclosure. Management has
concluded that the consolidated financial statements in this
Form 10-K
fairly present, in all material respects, the Companys
financial position, results of operations and cash flows for the
periods and dates presented.
Managements
Report on Internal Control Over Financial Reporting.
Management is responsible for establishing and maintaining
adequate internal control over financial reporting (as defined
in
Rule 13a-15(f)
under the Securities Exchange Act of 1934, as amended).
Management assessed the effectiveness of our internal control
over financial reporting as of December 31, 2009. In making
this assessment, management used the framework in Internal
Control-Integrated Framework issued by the Committee of
Sponsoring Organizations of the Treadway Commission
(COSO). Based on these criteria, management has
concluded that, as of December 31, 2009, the Companys
internal control over financial reporting is effective.
This annual report does not include an attestation report of our
independent registered public accounting firm regarding internal
control over financial reporting. Managements report was
not subject to attestation by our independent registered public
accounting firm pursuant to temporary rules of the Securities
and Exchange Commission that permit us to provide only
managements report in this annual report.
Changes
in Internal Control over Financial Reporting
There have been no changes in our internal controls over
financial reporting that has occurred during our fiscal quarter
ended December 31, 2009 that has materially affected, or is
reasonably likely to materially affect our internal control over
financial reporting.
F-29
|
|
ITEM 9B.
|
OTHER
INFORMATION
|
As previously disclosed in its current report on
Form 8-K
filed with the Commission on February 22, 2010, at its
regular meeting held on February 18, 2010, our Board of
Directors set the date for the Companys Annual Meeting of
Shareholders for Thursday, August 12, 2010 at
10:30 a.m., EDT. The meeting will be held at our Visitors
Center located at 560 Graniteville Road, Graniteville, Vermont.
The Board set the record date for the Annual Meeting of
Stockholders for June 4, 2010. We decided to move the
annual meeting about 60 days from the middle of June to
August 12 so as to be able to publicly discuss our results
through June 30, 2010 with our shareholders at the meeting.
Because the Annual Meeting will be delayed by more than 30
calendar days from the date of last years Annual Meeting,
the following revised dates apply to shareholder proposals:
Under the rules and regulations of the Securities and Exchange
Commission, proposals of shareholders intended to be presented
in the Companys proxy statement and forms of proxy for the
Companys 2010 Annual Meeting of Shareholders must be
received by the Company at its principal executive offices no
later than March 1, 2010, and must otherwise satisfy the
conditions established by the Securities and Exchange Commission
to be considered for inclusion in the Companys proxy
statement and proxy cards for that meeting.
Under our By-Laws, proposals of shareholders intended to be
submitted for a formal vote (other than proposals to be included
in the Companys proxy statement and forms of proxy) at the
Companys 2010 Annual Meeting of Shareholders may be made
only by a shareholder of record who has given notice of the
proposal to the Secretary of the Company which is received at
the Companys principal executive offices not later than
May 14, 2010. The notice must contain certain information
as specified in our By-Laws. Any such proposal received after
May 14, 2010 will not be considered timely
under the federal proxy rules for purposes of determining
whether the proxies designated by the Company for such meeting
may use discretionary authority to vote on such proposal.
|
|
ITEM 10.
|
DIRECTORS,
EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
|
Certain information concerning our directors and executive
officers is set forth below. Our executive officers serve for a
term of one year (and until his or her successor is duly elected
and qualified) at the discretion of the Board of Directors.
Our Articles of Incorporation provide that our Board of
Directors shall be comprised of not less than three and not more
than fifteen members. Our Board of Directors is currently
comprised of seven directors.
Our Articles further provide that at the next annual
shareholders meeting, which has been set for
August 12, 2010 (the 2010 Annual Meeting), the
initial Board of Directors will be divided into three classes
(Classes I, II and III), each class consisting, as
nearly as possible, of one-third of the total number of
directors constituting the entire Board of Directors. At the
2010 Annual Meeting, the Class I directors will stand for
election for a term that expires at the next annual shareholders
meeting after such election; the Class II directors will
stand for election for a term that expires at the second annual
shareholders meeting after such election; and the Class III
directors will stand for election for a term that expires at the
third annual shareholders meeting after such election. At
each succeeding annual shareholders meeting, successors to
the class of directors whose term expires at that annual meeting
will stand for election for three-year terms.
F-30
Unless otherwise indicated, none of the companies or
organizations referred to below is a parent, subsidiary or
affiliate of the Company.
|
|
|
|
|
|
|
Names of Directors and Executive Officers
|
|
Age
|
|
Positions With the Company
|
|
James L. Fox
|
|
|
58
|
|
|
Director
|
Paul H. Hutchins
|
|
|
54
|
|
|
Vice President/Administration
|
Richard C. Kimball
|
|
|
69
|
|
|
Director and Vice Chairman
|
Donald M. Labonte
|
|
|
48
|
|
|
Director, President and Chief Executive Officer
|
Laura A. Plude
|
|
|
52
|
|
|
Vice President, Chief Financial Officer, Treasurer and Assistant
Secretary
|
Pamela G. Sheiffer
|
|
|
64
|
|
|
Director
|
Kurt M. Swenson
|
|
|
65
|
|
|
Chairman of the Board of Directors
|
Charles M. Waite
|
|
|
77
|
|
|
Director
|
Frederick E. Webster Jr.
|
|
|
72
|
|
|
Director
|
James L. Fox
has been a director of the Company since
October 1997. Since January 2007, he has been President and
Chief Executive Officer, and from October 2005 to December 2006,
he was Executive Vice President and Chief Operating Officer of
FundQuest, Inc., a global provider of turnkey, open architecture
wealth management programs and services for financial
institutions and advisors. From September 2003 to October 2005,
he was Executive Vice President and Chief Financial Officer of
The BISYS Group, Inc. He was President of Fund Services
Division of The BISYS Group, Inc. from April 2003 to September
2003. From August 2001 to April 2003, he was President and Chief
Executive Officer of govOne Solutions, L.P., an electronic
government payment service. From June 2000 to August 2001, he
was Vice President-Corporate Development and Chief Financial
Officer of Gomez, Inc., a research and consulting firm
specializing in Internet quality measurement. Prior to joining
Gomez, Mr. Fox had been Vice Chairman of PFPC Inc., a
division of the PNC Financial Services Group, Inc. from December
1999 to June 2000. Before joining PFPC, Inc., Mr. Fox had
an eleven year career with the Investor Services Group of First
Data Corporation, a provider of processing and mutual fund and
retirement services for mutual fund complexes, banks, insurance
companies and advisory firms, including serving as President and
Chief Executive Officer (1999) and Chief Operating Officer
(1997-1999).
Mr. Fox has also been a director of Pegasus Solutions,
Inc., a global provider of third-party marketing and reservation
services to the travel industry, since June 2006.
Mr. Foxs current term as a director of the Company
expires at the Companys 2010 Annual Meeting.
Mr. Fox
brings extensive executive management
experience in both public and private companies, including
knowledge and experience in managing financial and accounting
matters and working with independent outside accounting firms in
his capacity as Chief Financial Officer and Chief Executive
Officer in a number of large companies.
Richard C. Kimball
has been a director of the Company
since 1986, and Vice Chairman since 1993. From 1993 to January
2001, he was Chief Operating Officer Memorials
Division of the Company and from January 2001 to December 2004,
he was Chief Strategic and Marketing Officer. Prior to joining
the Company, Mr. Kimball served as a director, principal
and President of The Bigelow Company, Inc., a strategic planning
and investment banking firm from 1972 until 1993.
Mr. Kimball retired as an employee of the Company on
December 31, 2004 and served as a consultant to the Company
during 2005 and 2006. He returned to The Bigelow Company, Inc.
in 2006, where he presently serves as a Senior Advisor.
Mr. Kimballs current term as a director expires at
the Companys 2010 Annual Meeting.
Mr. Kimball
has extensive experience in investment
banking and strategic consulting for many different businesses
and provides the Board with valuable expertise and insight in
evaluating the Companys strategic business development. He
is also a former executive officer of the Company and as such
provides institutional and industry knowledge.
Paul H. Hutchins
has been Vice President/Administration
of the Company since October 2004. From September 1993 to
October 2004, he was Manager of Administration.
Mr. Hutchins has held numerous other positions during his
28 year career at Rock of Ages, including Director of
Information Services (June 1989
F-31
September 1993), Production Manager (Rock of Ages Canada,
Inc., October 1987 June 1989), Purchasing and
Transportation Manager (June 1984 October
1987) and Staff Engineer (December 1981 June
1984).
Donald Labonte
has been a director of the Company since
2008. He has been President and Chief Executive Officer since
July 2008 and was Chief Operating Officer from February 2008 to
June 2008. He was President and Chief Operating Officer/Quarry
Division from December 2007 to February 2008, and President and
Chief Operating Officer/Manufacturing Division from August 2002
to February 2008. Mr. Labonte has been President of Rock of
Ages Canada, Inc., a wholly owned subsidiary of the
Company, since 1999. From January 2002 to July 2002, he was Vice
President of the Manufacturing Division of the Company. From
1998 to 1999, he was Vice President/General Manager of Rock of
Ages Canada, Inc. From 1993 to 1998, Mr. Labonte was
Director of Operations of Rock of Ages Canada, Inc. From
1980 to 1993, Mr. Labonte held various positions in the
manufacturing plant at Rock of Ages Canada, Inc.
Mr. Labontes current term expires at the
Companys 2010 Annual Meeting.
Mr. Labonte
is one of the most experienced,
knowledgeable and effective executives in the granite industry,
and he provides unique and necessary perspective on the
Companys current operations and strategic focus, as well
as extensive industry knowledge.
Laura Plude
has been Vice President and CFO of the
Company since August 2007. She served briefly as Vice
President/Finance from July 2007 to August 2007. Ms. Plude
was Director of Finance of the Company from August 2004 to July
2007. She was a staff accountant at the Company from August 1999
to August 2004. Prior to joining the Company, Ms. Plude was
a self-employed CPA.
Pamela G. Sheiffer
has been a director of the Company
since June 2004. Since 1997, she has been President of P. Joyce
Associates, Inc., a consulting firm specializing in retail and
apparel sectors, and providing services to the investment
community. Prior to that, Ms. Sheiffer held various senior
management positions in the retail and apparel industry
including Senior Vice President of May Department Stores. She
has been a director of New York & Company (NYSE: NWY),
a specialty retailer of fashion oriented, moderately priced
womens apparel, since August 2006, and a Trustee of the
American Management Association since June 2007. She is
currently Vice Chairman of Learning Lenders, New York
Citys largest educational nonprofit with over 12,000
volunteers in New York City schools. Ms. Sheiffers
current term as a director expires at the Companys 2010
Annual Meeting.
Ms. Sheiffer
has extensive executive management
experience with companies engaged in the design and retail sales
of products (included branded products) marketed primarily to
women. Since the large majority of granite memorials sold in
North America are purchased by women, Ms. Sheiffer brings a
unique and helpful perspective to the sales and marketing
programs for our branded memorials.
Kurt M. Swenson
has been Chairman of the Board of
Directors of the Company since 1984. From 1984 to June 30,
2008 he was President and Chief Executive Officer of the
Company. Prior to the Companys initial public offering in
1997, Mr. Swenson had been the Chief Executive Officer and
a director of Swenson Granite Company, Inc. from 1974 to
September of 1997. Mr. Swenson currently serves as
non-executive Chairman of the Board of Swenson Granite Company,
LLC, a Delaware limited liability company engaged in the granite
curb and landscaping business. Swenson Granite Company, LLC may
be deemed an affiliate of the Company. He is also a director of
the National Building Granite Quarries Association, an industry
association of United States-based dimension granite quarriers.
Mr. Swensons current term as a director expires at
the Companys 2010 Annual Meeting.
Mr. Swenson
has over 36 years of experience in
the granite industry. He provides extensive industry knowledge
and contacts, and as a former executive officer, also provides
institutional continuity and Company knowledge to the Board.
Charles M. Waite
has been a director of the Company since
1985. Since 1989, Mr. Waite has been managing partner of
Chowning Partners, a financial consulting firm that provides
consulting services to New England companies.
Mr. Waites current term as a director expires at the
Companys 2010 Annual Meeting.
F-32
Mr. Waite
brings a strong sense of executive
management and leadership to the Board. He is a graduate of the
Harvard Business School, and has extensive experience, as an
executive running business operations as well as a consultant to
numerous companies with both domestic and overseas operations.
Frederick E. Webster Jr., Ph.D.
has been a director
of the Company since October 1997. He was Professor of
Management at the Amos Tuck School of Business Administration of
Dartmouth College from 1965 until 2002, and is now the Charles
Henry Jones Professor of Management Emeritus. He is also a
management consultant and lecturer, and is the Jon Underwood
Distinguished Research Fellow in Marketing at the Eller College
of Management, University of Arizona. Mr. Websters
current term as a director expires at the Companys 2010
Annual Meeting.
Mr. Webster
is nationally recognized as an expert in
marketing. In addition to his academic accomplishment, he has
served as a consultant to a wide number of companies.
Mr. Webster brings to the Board expertise in marketing
branded products, managing channel conflicts, marketing through
exclusive territories, pricing policy and implementing
customer-driven initiatives.
SECTION 16(A)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires directors,
certain officers and beneficial owners of more than 10% of our
Common Stock to file reports of initial beneficial ownership and
changes in beneficial ownership of our Class A Common Stock
with the Securities and Exchange Commission. Based solely upon a
review of reports filed pursuant to Section 16(a) of the
Exchange Act and written representations by directors and such
officers, the Company believes that during 2009 such persons
made all required filings, except that Mr. Hutchins and
Mrs. Plude filed on a timely basis a Form 5 (Annual
Statement of Changes In Beneficial Ownership) reporting the
grant on February 19, 2009 of 5,000 and 10,000 options,
respectively, to purchase shares of Class A Common Stock.
The grants should have been reported on Form 4, but such
reports were not timely filed due to inadvertent clerical error.
AUDIT
COMMITTEE
Rock of Ages has a separately designated standing Audit
Committee established in accordance with
Section 3(a)(58)(A) of the Exchange Act. The members of the
Audit Committee are James L. Fox (Chairman), Richard C. Kimball
and Frederick E. Webster Jr. The Board of Directors has
determined that James L. Fox, Chairman of the Audit Committee is
an audit committee financial expert as defined by
Item 407(d)(5) of
Regulation S-K
of the Exchange Act, and is independent under
Rule 10A-3(b)(1)
under the Exchange Act and as independence is defined for audit
committee members in the listing standards of The Nasdaq Stock
Market, Inc.
BOARD
LEADERSHIP STRUCTURE AND ROLE IN RISK OVERSIGHT
With the streamlining of our management structure after the sale
of our retail division in 2007, and the retirement of Kurt M.
Swenson, our former Chief Executive Officer (CEO) in
June 2008, our Board of Directors determined it would be in the
best interests of the Company and its shareholders to separate
the roles of Chairman and CEO. Accordingly, Mr. Swenson,
who served as Chairman of the Board and CEO from 1984 until June
2008, now serves as the non-executive Chairman of the Board. As
Chairman, he organizes the Boards activities to enable it
to effectively provide guidance to, and oversight and
accountability of, our management. As directors continue to have
more oversight responsibilities than ever before, we believe it
is beneficial to have a non-executive Chairman whose sole job is
to lead the Board, serve as a resource to the CEO, and advise
the CEO as to the Boards needs, interests and opinions.
The CEOs responsibility is to run the day to day
operations of the Company. We believe having a non-executive
Chairman is beneficial to the CEO and allows him to focus his
entire energy on his numerous responsibilities running both our
quarry and manufacturing operations. The Board of Directors
continually evaluates our leadership structure and could in the
future decide to combine the Chairman and CEO positions if it
determines that doing so would serve the best interests of the
Company.
F-33
Our Audit Committee is primarily responsible for overseeing our
risk management processes on behalf of the full Board. The Audit
Committee receives and reviews periodic reports from management,
auditors, legal counsel and others, as considered appropriate
regarding the Companys assessment of risks. In addition,
the Audit Committee reports regularly to the full Board, which
also considers our risk profile. The Audit Committee and the
full Board focus on the most significant risks facing the
Company and the Companys general risk management strategy.
While the Board oversees the Companys risk management,
management is responsible for day to day risk management
processes. We believe this division of responsibilities is the
most effective approach for addressing the risks facing the
Company.
CODE OF
ETHICS
On October 20, 2008, the Board of Directors adopted a
revised code of business ethics for directors, officers
(including Rock of Ages principal executive officer and
principal financial and accounting officer) and employees. The
revised code of business ethics is available on Rock of
Ages website at www.rockofages.com. Shareholders can also
request a free copy by making such request in writing to Rock of
Ages Corporation, PO Box 482, Barre, Vermont
05641, attn: Vice President of Administration. We intend to
satisfy the disclosure requirement under Item 5.05 of
Form 8-K
regarding an amendment to, or a waiver from, a provision of our
code of ethics that applies to our principal executive officer,
principal financial officer, or principal accounting officer or
controller by disclosing such information on our website in
accordance with Item 5.05 of
Form 8-K.
|
|
ITEM 11.
|
EXECUTIVE
COMPENSATION
|
SUMMARY
COMPENSATION TABLE
The following table sets forth compensation information
concerning the compensation of our Chief Executive Officer and
our other two most highly compensated executive officers who
served in such capacities during the year ended
December 31, 2009 (the Named Executive
Officers).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nonqualified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
|
Deferred
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
Option
|
|
|
Incentive Plan
|
|
|
Compensation
|
|
|
All Other
|
|
|
|
|
Name and
|
|
|
|
|
Salary
|
|
|
Bonus
|
|
|
Awards
|
|
|
Awards
|
|
|
Compensation
|
|
|
Earnings
|
|
|
Compensation
|
|
|
Total
|
|
Principal Position
|
|
Year
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
(1)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
(a)
|
|
(b)
|
|
|
(c)
|
|
|
(d)
|
|
|
(e)
|
|
|
(f)
|
|
|
(g)
|
|
|
(h)
|
|
|
(i)
|
|
|
(j)
|
|
|
Donald M. Labonte,
|
|
|
2009
|
|
|
$
|
238,950
|
(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
19,238
|
|
|
|
|
|
|
$
|
31,575
|
(4)
|
|
$
|
289,763
|
|
President/CEO
|
|
|
2008
|
|
|
$
|
253,800
|
(2)
|
|
$
|
40,000
|
(3)
|
|
|
|
|
|
$
|
7,947
|
|
|
|
|
|
|
|
|
|
|
$
|
33,537
|
(5)
|
|
$
|
335,284
|
|
Paul H. Hutchins,
|
|
|
2009
|
|
|
$
|
125,004
|
|
|
|
|
|
|
|
|
|
|
$
|
3,350
|
|
|
$
|
9,375
|
|
|
|
|
|
|
$
|
5,608
|
(6)
|
|
$
|
143,337
|
|
Vice President Administration
|
|
|
2008
|
|
|
$
|
125,004
|
|
|
$
|
10,000
|
(7)
|
|
|
|
|
|
$
|
467
|
|
|
|
|
|
|
|
|
|
|
$
|
1,385
|
(6)
|
|
$
|
136,856
|
|
Laura A. Plude, CFO
|
|
|
2009
|
|
|
$
|
100,841
|
|
|
|
|
|
|
|
|
|
|
$
|
6,700
|
|
|
$
|
7,563
|
|
|
|
|
|
|
$
|
4,678
|
(6)
|
|
$
|
119,782
|
|
Vice President Finance
|
|
|
2008
|
|
|
$
|
100,008
|
|
|
$
|
10,000
|
(7)
|
|
|
|
|
|
$
|
14,550
|
|
|
|
|
|
|
|
|
|
|
$
|
1,750
|
(6)
|
|
$
|
126,308
|
|
|
|
|
(1)
|
|
Incentive payments earned under the 2009 Annual Incentive Plan
were accrued in 2009 but paid in 2010.
|
|
(2)
|
|
For 2009 and 2008, Mr. Labonte was paid an annual base
salary of $270,000 CDN. For the purposes of this table, to
calculate his 2009 and 2008 annual base salary in U.S. dollars,
we used a currency conversion rate of $.885 and $.94 U.S. to
$1.00 CDN, respectively which represents the average of the
exchange rates as of each month during fiscal 2009 and 2008, as
published in the Wall Street Journal.
|
|
(3)
|
|
Discretionary bonus of $40,000 ($42,554 CDN) paid in 2009 for
2008 performance. To calculate the amounts paid in U.S. dollars,
we used a currency conversion rate of $.94 U.S. to $1.00 CDN,
which represents the average of the exchange rates as of the end
of each month during fiscal 2008, as published in the Wall
Street Journal.
|
|
(4)
|
|
Includes $19,470 ($22,000 CDN) paid by the Company to
Mr. Labontes self-directed retirement account under
the Retirement Plan for Salaried Employees of Rock of Ages
Canada, Inc. and $788 ($890 CDN) paid for a life insurance
policy on Mr. Labontes life, payable to his heirs.
Rock of Ages Canada paid $11,317 ($12,787 CDN) into the
supplemental retirement plan for Mr. Labonte for 2009. For
the purposes of this table, to calculate the amounts paid in
2009 for Mr. Labontes retirement arrangements, we
used a
|
F-34
|
|
|
|
|
currency conversion rate of $.885 USD to $1.00 CDN, which
represents the average of the exchange rates as of each month
during fiscal 2009, as published in the Wall Street Journal. See
Narrative to Summary Compensation Table and
PENSION AND POST-RETIREMENT BENEFITS Canadian
Retirement Plans at page 35 of this report.
|
|
(5)
|
|
Includes $19,740 ($21,000 CDN) paid by the Company to
Mr. Labontes self-directed retirement account under
the Retirement Plan for Salaried Employees of Rock of Ages
Canada, Inc. and $837 ($890 CDN) paid for a life insurance
policy on Mr. Labontes life, payable to his heirs.
Rock of Ages Canada paid $12,960 ($13,787 CDN) into the
supplemental retirement plan for Mr. Labonte for 2008. For
the purposes of this table, to calculate the amounts paid in
2008 for Mr. Labontes retirement arrangements, we
used a currency conversion rate of $.94 USD to $1.00 CDN, which
represents the average of the exchange rates as of each month
during fiscal 2008, as published in the Wall Street Journal. See
Narrative to Summary Compensation Table and
PENSION AND POST-RETIREMENT BENEFITS Canadian
Retirement Plans at page 35 of this report.
|
|
(6)
|
|
For 2009 and 2008, respectively, amount represents Company match
on 401(k) deferrals.
|
|
(7)
|
|
Discretionary bonus paid in 2009 for 2008 performance.
|
Narrative
to Summary Compensation Table
The Compensation Committee of the Board of Directors (the
Compensation Committee) is primarily responsible for
reviewing, approving, and overseeing the Companys
compensation plans and practices, and works with management to
establish the Companys executive compensation programs.
Our executive compensation program consists of four key
components: base salary, annual bonus awards, equity based
incentives in the form of stock options, and retirement benefits.
Base
Salary
The Compensation Committee annually reviews the Chief Executive
Officers (CEO) salary and the CEOs
recommendations with regard to the base salaries of our other
executive officers. The Compensation Committee did not increase
the rate of base salaries for executive officers in 2009 and
again decided that it would not increase base salaries for
executive officers in 2010 except for the Chief Financial
Officer who received a $10,000 increase.
Non-Equity
Incentive Plans and Cash Bonuses
Our executive officers, including the Named Executive Officers,
participated in the 2009 Annual Incentive Plan, which was
adopted by the Compensation Committee and set forth corporate
and divisional performance measures for each participating
employee, as well as target award values. Performance under the
Incentive Plan is measured by the achievement of certain levels
of earnings before interest and taxes (EBIT), net of
incentive payments, cash flow from operations and return on
assets. The following named executive officers incentive
targets are set at the corporate level only. The target award
values for 2009 for the named executive officers under the
Incentive Plan as a percentage of base salary are set forth
below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Target Award Values
|
|
|
(% of Base Salary)
|
|
|
Threshold
|
|
Target
|
|
Maximum
|
|
Donald M. Labonte, President and CEO
|
|
|
10
|
%
|
|
|
15
|
%
|
|
|
25
|
%
|
Paul H. Hutchins, Vice President of Administration
|
|
|
10
|
%
|
|
|
15
|
%
|
|
|
25
|
%
|
Laura A. Plude, CFO and Vice President of Finance
|
|
|
10
|
%
|
|
|
15
|
%
|
|
|
25
|
%
|
The Compensation Committee may also pay discretionary bonuses to
officers if, in the Compensation Committees sole
discretion, a participant has achieved corporate, divisional or
personal goals worthy of reward. The Compensation Committee did
not award discretionary bonuses for 2009 performance to the
Named Executive Officers.
F-35
Stock
Options
Our 2005 Stock Plan was established to provide certain employees
with an opportunity to share, along with our stockholders, in
our long-term performance. Historically, we have granted stock
options which vest based upon continued employment, typically
over a three to five year period. All options are granted with
maximum terms that expire ten years after the date of grant (or
upon earlier termination of the option holders
employment). Typically, we have granted options to executive
officers when they are first appointed. In 2009, the
Compensation Committee determined it would be appropriate to
grant options to certain individuals, including the Named
Executive Officers. See the information concerning option
holdings among our Named Executive Officers at page 30 of
this report under the caption OUTSTANDING EQUITY AWARDS AT
FISCAL YEAR END.
Retirement
Benefits
We maintain a defined benefit plan (the DB Plan) for
non-union employees who were vested in the DB Plan on
March 31, 2009. Due to the recent significant worldwide
decline in equity prices and the value of other financial
investments, the fair value of the assets held by the DB Plan
decreased by $5.4 million in 2008. As a result, the plan
was significantly under-funded, and we decided to terminate
participation in the DB Plan and the future accrual of benefits.
As an alternative to the DB Plan, we increased the Company match
for our 401K plan to 4%. We have entered into salary
continuation agreements (the SC Agreements) with
certain individuals who are not Named Executive Officers. We
also have a deferred salary plan (the DS Plan)
for certain management and highly compensated employees. At the
present time, there are no current employees participating in
the DS Plan. Our CEO, who is a Canadian citizen, is not eligible
to participate in these plans. Accordingly, we provide
retirement benefits to our CEO and our Canadian employees
through separate retirement plans sponsored by Rock of
Ages Canada, Inc, our Canadian subsidiary. For further
information on our retirement programs please see the
information at page 30 of this report under the caption
PENSION AND POST-RETIREMENT BENEFITS.
Employment
Agreements
The CEO is the only Named Executive Officer that currently has
an employment agreement with the Company. This agreement
generally provides for the payment of base salary, severance,
and change in control payments and is described in greater
detail at page 32 of this report under the caption
EMPLOYMENT AGREEMENTS AND CHANGE IN CONTROL
ARRANGEMENTS.
OUTSTANDING
EQUITY AWARDS AT FISCAL YEAR END
The following table sets forth information concerning options to
purchase Class A Common Stock held by the Named Executive
Officers at December 31, 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
Stock Awards
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
Incentive Plan
|
|
|
|
|
|
|
|
Market
|
|
Incentive Plan
|
|
Equity Incentive
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
|
|
Value of
|
|
Awards:
|
|
Plan Awards:
|
|
|
Number of
|
|
Number of
|
|
Number of
|
|
|
|
|
|
Number of
|
|
Shares or
|
|
Number of
|
|
Market or Payout
|
|
|
Securities
|
|
Securities
|
|
Securities
|
|
|
|
|
|
Shares or
|
|
Units of
|
|
Unearned Shares,
|
|
Value of Unearned
|
|
|
Underlying
|
|
Underlying
|
|
Underlying
|
|
Option
|
|
|
|
Units of
|
|
Stock That
|
|
Units or
|
|
Shares, Units or
|
|
|
Unexercised
|
|
Unexercised
|
|
Unexercised
|
|
Exercise
|
|
Option
|
|
Stock That
|
|
Have Not
|
|
Other Rights
|
|
Other Rights That
|
|
|
Options
|
|
Options
|
|
Unearned
|
|
Price
|
|
Expiration
|
|
Have Not
|
|
Vested
|
|
That Have
|
|
Have Not Vested
|
Name
|
|
Exercisable
|
|
Unexercisable
|
|
Options
|
|
($)
|
|
Date
|
|
Vested
|
|
($)
|
|
Not Vested
|
|
($)
|
(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
(g)
|
|
(h)
|
|
(i)
|
|
(j)
|
|
Donald M. Labonte
|
|
|
15,000
|
|
|
|
|
|
|
|
|
|
|
$
|
5.98
|
|
|
|
2/8/2012
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17,000
|
|
|
|
68,000
|
|
|
|
|
|
|
$
|
2.63
|
|
|
|
8/7/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul H. Hutchins
|
|
|
15,000
|
|
|
|
|
|
|
|
|
|
|
$
|
5.98
|
|
|
|
2/8/2012
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,000
|
|
|
|
4,000
|
|
|
|
|
|
|
$
|
2.63
|
|
|
|
8/7/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,000
|
|
|
|
|
|
|
$
|
2.63
|
|
|
|
2/19/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Laura A. Plude
|
|
|
10,000
|
|
|
|
15,000
|
|
|
|
|
|
|
$
|
5.93
|
|
|
|
8/14/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,000
|
|
|
|
|
|
|
$
|
2.63
|
|
|
|
2/19/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Each of the options shown above vest over five years in equal
20% increments, and expire ten years after the date of grant.
F-36
OPTION
EXERCISES AND STOCK VESTED
During 2009 none of the Named Executive Officers exercised any
stock options or became vested in any restricted stock.
PENSION
AND POST-RETIREMENT BENEFITS
Defined
Benefit Pension Plan
We maintain a qualified defined benefit pension plan (the
DB Plan) for non-union employees of Rock of
Ages Corporation. The DB Plan is noncontributory and
provides benefits based upon a formula calculated by reference
to length of service and final average earnings. The DB Plan
provides an annual life annuity at age 65 equal to 1.8% per
year of a participants highest consecutive five year
average compensation (excluding bonus) during the last ten years
of employment (Final Average Compensation),
plus 0.4% per year of a participants Final Average
Compensation in excess of social security covered compensation
times the years of service, up to a maximum of 30 years.
Participants who have attained the age of 55 and who have at
least 10 years of service may elect to receive early
retirement benefits under the DB Plan. In the case of early
retirement, the amount of the monthly pension benefit will be
equal to the monthly accrued pension benefit, determined as of
the early retirement date, reduced actuarially for each month
that the early retirement date precedes the normal retirement
date. As of March 31, 2009 the DB Plan was amended by
freezing membership and future benefits in the plan. The total
annual retirement benefits payable upon normal retirement under
the DB Plan for the Named Executive Officers will not change in
the future except to be reduced for early retirements.
The Vice President of Administration and the CFO are the only
named executive officers participating in the DB Plan. The VP of
Administration has 28 years of service and the CFO has
10 years of service and their annual retirement benefits
will be $66,500 and $14,600, respectively. The current CEO, a
Canadian citizen, is not eligible to participate in the DB Plan.
Salary
Continuation Agreements
In addition to the DB Plan, we have salary continuation
agreements (SC Agreements) which provide for
supplemental pension benefits to certain former officers of the
Company. No Named Executive Officers are covered by an SC
Agreement.
Deferred
Salary Plan
We established the Rock of Ages Key Employees Deferred
Salary Plan (the DS Plan) for certain management and
highly compensated employees. Participation in the DS Plan is
limited to those employees designated by the Board of Directors
in its sole discretion, and who satisfy the following criteria:
(1) the employee has attained the age of 55; (2) the
employee is an executive officer; (3) the employee has
completed a minimum of ten years of continuous service with the
Company; and (4) the employees annual base salary,
fringe benefits and other non-cash compensation exceeds $200,000
(subject to adjustment each year to reflect the average
percentage change in the base salaries of all officers of the
Company). No executive officers currently participate in the DS
Plan.
Participants may make an irrevocable election to defer up to
$100,000 annually under the DS Plan. Any amounts deferred are
reflected in deferred salary accounts created by the Company.
Interest at the rate of 12% per annum is credited on a monthly
basis to each Participants deferred salary account. The
aggregate account balances remain part of the general
unrestricted assets of the Company. Participants do not have any
right or claim to any specific assets of the Company, but only a
claim against the Company as a general, unsecured creditor to
the extent of the undistributed portion of their deferred salary
account. Benefits under the DS Plan are paid upon the
retirement, death or disability of the participant or other
termination of participation, subject to certain procedures
relating to distribution. Each year prior to making a deferral,
participants must elect the method of distribution that will
apply to that deferral upon retirement under the DS Plan.
Participants have three distribution options: (i) Interest
only on the undistributed account balance at 12% per annum,
payable
F-37
monthly, quarterly or annually for the life of the participant
or
his/her
spouse, with distribution of the remaining account balance
payable upon the death of the participant or
his/her
spouse, whichever is later; (ii) as provided in
(i) above, but subject to a term certain of not less than
10 nor more than 20 years with respect to the payment of
interest only; or (iii) level payment amortization of the
participants account balance as of the commencement of
payments, plus interest on the undistributed account balance at
12% per annum, over any of the time periods available under
(i) or (ii) above.
Canadian
Retirement Plans
Our Canadian subsidiary, Rock of Ages Canada, Inc.
(ROA Canada), has a retirement plan for our Canadian
employees, the Retirement Plan for Salaried Employees of Rock of
Ages Canada, Inc. (the Basic Canadian Retirement
Plan) which is registered with the Province of Quebec and
the Government of Canada. All salaried, non-union employees of
ROA Canada are participants in the Basic Canadian Retirement
Plan, including our President and CEO, Mr. Labonte.
Pursuant to the Basic Canadian Retirement Plan, ROA Canada
contributes 8% of a participants monthly compensation each
month to each participants account. The investments in the
account are self-directed by each participant with a range of
investment options. ROA Canada may, in its discretion, make an
additional contribution to a participants account, up to a
maximum aggregate amount of 13% of a participants salary
per year (including amounts previously contributed during the
year). For 2009, Canadian law allowed a maximum contribution per
individual to the Basic Canadian Retirement Plan of $22,000 CDN.
In 2009, we contributed $19,470 (the full $22,000 CDN allowable
under Canadian law) and in 2008, we contributed $19,740 (the
full $21,000 CDN allowable under Canadian law) to
Mr. Labontes self-directed retirement account under
the Basic Canadian Retirement Account. Effective in 2007 ROA
Canada established a supplemental retirement plan for
Mr. Labonte (Canadian Supplemental Plan). The
Canadian Supplemental Plan is funded as a retirement
compensation arrangement as defined in Article 248 of the
Canadian Income Tax Act. The only participant in the Canadian
Supplemental Retirement Plan is Mr. Labonte. Each year, ROA
Canada may make a contribution to the Canadian Supplemental Plan
equal to 13% of Mr. Labontes base salary, less any
amounts paid to the Basic Canadian Retirement Plan for
Mr. Labonte. We made contributions to the Canadian
Supplemental Plan equal to $11,317 ($12,787 CDN) and $12,960 USD
($13,787 CDN) in 2009 and 2008, respectively. We may make
additional contributions to the Canadian Supplemental Retirement
Plan at our discretion. Normal retirement age under the Canadian
Supplemental Plan is 65 years however the participant may
elect early retirement at age 55, or may elect to postpone
normal retirement to not later than age 71. Upon early,
normal or postponed retirement, Mr. Labonte is entitled to
a lump sum equal to the value of the contributions made to the
Canadian Supplemental Plan, plus accrued earnings of the Plan,
or he may elect to be paid in installments over 5 years
from the retirement date.
Post
Employment Health Care Policy
It is our policy to provide post-employment health care coverage
to our executive officers and their spouses who retire at
age 55 or older. The form and type of benefits to be
provided is the coverage that is in effect for active employees
from time to time, and the retiree pays his or her portion of
the premium for such coverage, as the same may be set from time
to time. We reserve the right, in our sole discretion, to change
or amend such coverage, the retirees share of the premium
and/or
such
other terms of the coverage as we deem necessary or advisable,
or to cease providing such coverage altogether. Coverage is
provided to executive officers who retire at age 55 or
older and to their spouses until they reach age 65,
provided, however, that health care coverage for a spouse
terminates when the executive officer reaches (or would have
reached) age 68, regardless of whether the spouse has
reached age 65.
EMPLOYMENT
AGREEMENTS AND CHANGE IN CONTROL ARRANGEMENTS
Labonte
Employment Agreement
The Company has an employment agreement with the CEO,
Mr. Labonte (the Labonte Employment Agreement),
for retention of his services as President and Chief Executive
Officer of the Company. The term
F-38
of the Labonte Employment Agreement commenced on July 1,
2008, the date he began his duties as Chief Executive Officer,
and continues until the fifth anniversary thereof unless
extended or terminated. The Labonte Employment Agreement
provides for continued payment of salary and benefits for an
additional twelve months if Mr. Labontes employment
is terminated by the Company without Cause (as defined in the
Labonte Employment Agreement). If Mr. Labontes
employment is terminated by the Company within twelve months
after a Change in Control (as defined in the Labonte Employment
Agreement) then the Company will pay Mr. Labonte a lump sum
in cash within 15 days after the date of termination equal
to one times the then current Annual Base Salary.
NON-EMPLOYEE
DIRECTOR COMPENSATION
For the 2009 fiscal year, directors who are not also employees
of the Company were paid annual directors retainers of
$30,000. Audit Committee members were paid an additional annual
retainer fee of $2,000 and members of other committees are paid
additional annual retainers of $1,000 for each committee. The
non-executive Chairman receives an annual retainer that is at
least $20,000 higher than the highest paid non-employee
director, or such other fee as determined by the Compensation
Committee or the full board (excluding the Chairman) in its sole
discretion. Directors are also eligible for grants under the
2005 Stock Plan. We reimburse our non-employee directors for
travel and lodging expenses that they incur in connection with
their attendance of directors meetings and meetings of
shareholders of the Company.
Actual
Fiscal 2009 Non-Employee Director Compensation
The following table shows the compensation paid to our
non-employee directors for the 2009 fiscal year:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
Fees
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
|
Qualified
|
|
|
|
|
|
|
|
|
|
Earned or
|
|
|
Stock
|
|
|
Option
|
|
|
Incentive Plan
|
|
|
Deferred
|
|
|
All Other
|
|
|
|
|
|
|
Paid in Cash
|
|
|
Awards
|
|
|
Awards
|
|
|
Compensation
|
|
|
Compensation
|
|
|
Compensation
|
|
|
Total
|
|
Name
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
Earnings
|
|
|
($)
|
|
|
($)
|
|
|
James L. Fox
|
|
|
32,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32,500
|
|
Richard C. Kimball
|
|
|
32,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32,500
|
|
Pamela G. Sheiffer
|
|
|
32,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32,000
|
|
Kurt M. Swenson
|
|
|
50,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
Charles M. Waite
|
|
|
32,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32,500
|
|
Frederick E. Webster, Jr.
|
|
|
32,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32,000
|
|
|
|
ITEM 12.
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
|
The following table sets forth, as of March 20, 2010,
certain information with respect to the beneficial ownership of
our Common Stock by each (i) director, (ii) Named
Executive Officer (iii) beneficial owner of more than 5% of
either class of the outstanding Common Stock known to us, based
on Securities and Exchange Commission filings and other
available information and (iv) by all directors and
executive officers of the Company as a group. This information
is based upon information received from or on behalf of the
individuals or entities named below, except as otherwise noted.
The Class B Common Stock is convertible on a
share-for-share
basis into Class A Common Stock. The Class B Common
Stock is entitled to ten votes per share and the Class A
Common Stock is entitled to one vote per share. Beneficial
ownership has been determined in accordance with the rules of
the Securities and Exchange Commission. Except as indicated in
the footnotes below, we believe, based on the information
furnished or otherwise available to us, the persons and entities
named in the table below have sole voting and investment power
with respect to all shares of Common Stock shown as beneficially
owned by them, subject to applicable community property laws.
Ownership percentages are based upon 4,812,342 shares of
Class A Common Stock and 2,603,721 shares of
Class B Common Stock outstanding as of March 22, 2010.
In computing the number of shares of Common Stock beneficially
owned by a person and the percentage ownership of such person,
shares of Class A Common Stock subject to options held by
that person that are
F-39
currently exercisable or exercisable within 60 days of
March 20, 2009 were deemed to be outstanding. Such shares
were not deemed to be outstanding, however, for the purpose of
computing the percentage ownership of any other person.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares of Class B
|
|
Shares of Class A
|
|
|
Common Stock
|
|
Common Stock
|
|
|
Beneficially Owned
|
|
Beneficially Owned
|
|
|
|
|
Percent of
|
|
|
|
Percent of
|
Name and Address of Beneficial Owner(1)
|
|
Number
|
|
Class
|
|
Number(2)
|
|
Class(2)
|
|
North Star Investment Management Corp.(3)
|
|
|
|
|
|
|
|
|
|
|
718,473
|
|
|
|
14.9
|
%
|
20 North Wacker Drive, Suite 1416
Chicago, IL 60606
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kuby Gottlieb Special Value Fund, LP(4)
|
|
|
|
|
|
|
|
|
|
|
423,986
|
|
|
|
8.8
|
%
|
20 North Wacker Drive, Suite 1416
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chicago, IL 60606
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dimensional Fund Advisors, Inc(5)
|
|
|
|
|
|
|
|
|
|
|
312,531
|
|
|
|
6.5
|
%
|
1299 Ocean Avenue
Santa Monica, CA 90401
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kurt M. Swenson(6)**
|
|
|
1,005,000
|
|
|
|
38.6
|
%
|
|
|
1,135,000
|
|
|
|
19.5
|
%
|
Kevin C. Swenson(7)
|
|
|
1,023,489
|
|
|
|
39.3
|
%
|
|
|
1,023,489
|
|
|
|
17.5
|
%
|
Willougby Colby Rd.
Warner, NH 03278
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert Pope
|
|
|
144,875
|
|
|
|
5.3
|
%
|
|
|
159,875
|
|
|
|
3.2
|
%
|
46 Grand View Farm Road
Barre, VT
05641-8335
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard C. Kimball**
|
|
|
29,126
|
|
|
|
1.1
|
%
|
|
|
72,126
|
|
|
|
1.5
|
%
|
Charles M. Waite**
|
|
|
29,126
|
|
|
|
1.1
|
%
|
|
|
45,000
|
|
|
|
*
|
|
James L. Fox**
|
|
|
|
|
|
|
|
|
|
|
5,000
|
|
|
|
*
|
|
Frederick E. Webster Jr.**
|
|
|
|
|
|
|
|
|
|
|
5,000
|
|
|
|
*
|
|
Donald Labonte(8)**
|
|
|
|
|
|
|
|
|
|
|
35,000
|
|
|
|
*
|
|
Pamela G. Sheiffer**
|
|
|
|
|
|
|
|
|
|
|
5,000
|
|
|
|
*
|
|
Paul H. Hutchins(9)**
|
|
|
|
|
|
|
|
|
|
|
29,200
|
|
|
|
*
|
|
Laura A. Plude(10)**
|
|
|
|
|
|
|
|
|
|
|
15,000
|
|
|
|
*
|
|
All directors and executive officers as a group (9 persons)
|
|
|
1,063,252
|
|
|
|
38.8
|
%
|
|
|
1,346,326
|
|
|
|
22.9
|
%
|
|
|
|
**
|
|
Named Executive Officer and/or Director
|
|
*
|
|
Less than 1%
|
|
(1)
|
|
The business address of each director and executive officer of
the Company is
c/o Rock
of Ages Corporation, 560 Graniteville Road, Graniteville,
Vermont 05654.
|
|
(2)
|
|
For each beneficial owner (and directors and executive officers
as a group), (i) the number of shares of Class A
Common Stock listed includes (or is comprised solely of) the
number of Class A shares owned outright or under
outstanding vested options and a number of shares equal to the
number of shares of Class B Common Stock, if any, listed as
beneficially owned by such beneficial owner(s) and (ii) the
percentage of Class A Common Stock listed assumes the
conversion on March 22, 2010 of all shares of Class B
Common Stock, if any, listed as beneficially owned by such
beneficial owner(s) into Class A Common Stock and also that
no other shares of Class B Common Stock beneficially owned
by others are so converted.
|
|
(3)
|
|
According to a Form 4 dated March 17, 2010, Northstar
Investment Management Corp., in its capacity as an investment
advisor or manager, may be deemed to be the beneficial owner of
the listed shares.
|
F-40
|
|
|
(4)
|
|
According to a Schedule 13G dated January 8, 2009,
Kuby Gottleib Special Value Fund, LP in its capacity as an
investment advisor or manager, may be deemed to be the
beneficial owner of the listed shares that are held of record by
certain investment companies, trusts or other accounts it
advises or manages.
|
|
(5)
|
|
According to a Schedule 13G dated February 10, 2010,
Dimensional Fund Advisors, Inc., in its capacity as an
investment advisor or manager, may be deemed to be the
beneficial owner of the listed shares that are held of record by
certain investment companies, trusts or other accounts it
advises or manages.
|
|
(6)
|
|
Kurt M. Swenson is the brother of Kevin C. Swenson. Includes
1,005,000 shares of Class B Common Stock and
130,000 shares of Class A Common Stock held by the
Kurt M. Swenson Revocable Trust of 2000. Kurt M. Swenson, as the
sole trustee of the Kurt M. Swenson Revocable Trust of 2000,
beneficially owns such shares.
|
|
(7)
|
|
Kevin C. Swenson is the brother of Kurt M. Swenson.
|
|
(8)
|
|
Includes 32,000 shares of Class A Common Stock subject
to currently exercisable stock options.
|
|
(9)
|
|
Includes 17,000 shares of Class A Common Stock subject
to currently exercisable options.
|
|
(10)
|
|
Includes 12,000 shares of Class A Common Stock subject
to currently exercisable options.
|
EQUITY
COMPENSATION PLAN INFORMATION
The following table sets forth information regarding the
Companys equity compensation plan as of December 31,
2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Securities
|
|
|
|
|
|
|
Remaining Available
|
|
|
|
|
|
|
for Future Issuance
|
|
|
|
|
|
|
Under Equity
|
|
|
Number of Securities to be
|
|
Weighted-Average
|
|
Compensation
|
|
|
Issued Upon Exercise of
|
|
Exercise Price of
|
|
Plans (Excluding
|
|
|
Outstanding Options,
|
|
Outstanding Options,
|
|
Securities Reflected
|
Plan Category
|
|
Warrants and Rights
|
|
Warrants and Rights
|
|
in Column(a))
|
|
|
(a)
|
|
(b)
|
|
(c)
|
|
Equity compensation plans approved by security holders
|
|
|
314,000
|
|
|
$
|
4.08
|
|
|
|
330,833
|
|
Equity compensation plans not approved by security holders
|
|
|
None
|
|
|
|
None
|
|
|
|
None
|
|
Total
|
|
|
314,000
|
|
|
$
|
4.08
|
|
|
|
330,833
|
|
|
|
|
|
|
|
|
(1)
|
|
On June 22, 2005 at our Annual Meeting of Stockholders, the
stockholders approved the Rock of Ages Corporation 2005
Stock Plan (the 2005 Plan). The 2005 Plan permits
awards of stock options (including both incentive stock options
and nonqualified stock options) and restricted stock. A maximum
of 550,000 shares of Class A Common Stock may be
issued under the 2005 Plan. The 2005 Plan is administered by the
Compensation Committee, which has the authority to determine the
recipients of awards under the 2005 Plan and, subject to the
2005 Plan, the terms and condition of such awards. The 2005 Plan
replaces the Rock of Ages Corporation 1994 Stock Plan (the
1994 Plan) which expired in November 2004. Although
grants made under the 1994 Plan prior to its expiration remain
outstanding, no further grants may be made under the 1994 Plan.
|
|
|
ITEM 13.
|
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
|
Transactions
with Related Persons, Promoters and Certain Control
Persons
Transactions
With Related Persons
In connection with and prior to its initial public offering in
1997, the Company effected a reorganization whereby, among other
things, the Companys then parent corporation, Swenson
Granite Company, Inc. (Swenson Granite), was merged
with and into the Company, with the Company as the surviving
corporation, and, immediately prior to such merger, Swenson
Granite distributed its curb and landscaping business to its
F-41
stockholders through a pro rata distribution of all of the
member interests in a newly formed limited liability company
named Swenson Granite Company LLC (Swenson LLC).
Kurt M. Swenson, the Companys Chairman, and his brother
Kevin C. Swenson, each own approximately 31% of Swenson Granite
LLC. Certain other directors of the Company collectively own
approximately 9% of Swenson LLC. Kurt M. Swenson serves as a
non-officer Chairman of the Board of Swenson LLC, but has no
involvement with its
day-to-day
operations. Robert Pope, a holder of more than 5% of the
Class B Common Stock, is Swenson LLCs President and
Chief Executive Officer, and including shares owned by his wife
and children, owns approximately 12% of Swenson LLC. Neither
Kurt M. Swenson nor any other officer or director of the
Company, receives salary, bonus, expenses or other compensation
from Swenson LLC, except for any pro rata share of earnings
attributable to their ownership interest in Swenson LLC.
Swenson LLC owns two granite quarries: one in Concord, New
Hampshire and another in Woodbury, Vermont. Both have been owned
by Swenson LLC (or its predecessor Swenson Granite) for more
than 40 years. Because of the proximity of the Woodbury
quarry to Barre, Vermont, the Company provides, and may continue
to provide, certain maintenance services and parts to the
Woodbury quarry and is reimbursed for the cost of such services.
During 2009, the Company received approximately $6,100 for such
maintenance services and parts. Both the Company and Swenson LLC
have the right to terminate these services at any time. The
Company also purchases Concord blocks and other products from
Swenson LLC at market prices. The Companys purchases of
granite and other products provided by Swenson LLC in 2009 were
approximately $73,000. Swenson LLC also purchases granite blocks
and slabs and miscellaneous services from the Company. Such
purchases amounted to approximately $53,000 in 2009. The Company
believes these arrangements with Swenson LLC are not material
and that they are on terms as favorable, or more favorable, to
the Company than would be available from an unrelated party for
comparable granite products. Both of Swenson LLCs quarries
produce gray granite primarily for curb and landscape use.
Although Rock of Ages gray granite from its Barre and
Stanstead quarries is used primarily for memorial use, it may be
in competition with Swenson LLC in some markets, including the
supply of its gray granites for other than memorial use. Swenson
LLC has supplied its Woodbury granite to manufacturers of
government grave markers made for the Veterans
Administration for many years and Rock of Ages has not been in
the business of selling or manufacturing its gray granites for
use in Veterans markers.
The determination to sell the retail operations in 2008 was
reached after our Board engaged in a lengthy process of fully
exploring strategic alternatives with the assistance of
Covington Associates, LLC, a Boston-based investment banking
firm selected by a special committee of non-employee directors
and retained by the Company in 2006. The sale to PKDM was
recommended to the Board by this special committee following the
solicitation of bids from interested parties, and Covington
Associates delivered a favorable opinion to the Board with
respect to the fairness to the Company, from a financial point
of view, of the consideration to be received by the Company in
the transaction.
In connection with the sale of our retail division to PKDM
Holdings, Inc. in 2008, a corporation owned by Richard M.
Urbach, the former President and Chief Operating Officer of the
retail division, and James Barnes, the financial manager of the
retail division, we entered into a five year supply agreement
with PKDM and its operating subsidiary, North American Heritage
Services, Inc. (NAHS), naming it as an authorized
Rock of Ages retailer in the existing retail territories
formerly serviced by its owned retail stores, and PKDM agreed to
minimum annual memorial purchases from the Company of
$3.5 million during each year of the five year term,
excluding private mausoleums. PKDMs minimum purchase
obligation under the Supply Agreement is subject to reduction if
PKDM permanently closes or sells stores that were operated by
them on the date of the original Supply Agreement. Pursuant to
the Supply Agreement, the amount of such reduction is equal to
the three year average annual purchases of closed or sold
stores. Due to the closure or sale of a number of locations by
PKDM during 2008, effective January 16, 2009 the parties
agreed to revise the minimum purchase requirements to $1,780,000
for the year of the agreement ending on January 17, 2009
and to $1,210,000 for each of the remaining years of the initial
term and any renewal term.
Review,
Approval or Ratification of Transactions with Related
Persons
Upon the recommendation of the Audit Committee, in March 2007
the Companys Board of Directors adopted a written policy
under which related person transactions must be pre-approved by
the Audit Committee.
F-42
Under the policy, generally a related person transaction is any
transaction, arrangement or relationship involving an amount
exceeding $75,000 between the Company and any executive officer,
director or 5% stockholder (and their family members), or any
entity in which any such person is an executive officer,
director, general partner, managing member or person in a
similar position, has a 5% or greater ownership interest, or of
which such person is an employee who will receive a direct
economic benefit from the transaction. Prior to the Company
entering into a related person transaction, the Companys
management must submit the proposed transaction to the Audit
Committee for consideration at a meeting. The Audit Committee
considers all of the relevant facts and circumstances available
to it, including (if applicable) but not limited to: the
benefits to the Company; the impact on a directors
independence in the event the person in question is a director,
an immediate family member of a director, or an entity in which
a director is an equity holder or of which a director is an
executive officer, general partner, managing partner or a person
in a similar position; the availability of other sources for
comparable products or services; the terms of the proposed
transaction; and the terms available to unrelated third parties
or to employees generally. No member of the Audit Committee may
participate in any review, consideration or approval of any
related person transaction with respect to which such member of
any of his or her immediate family members is the related
person. The Audit Committee will approve only those related
person transactions that are in, or not inconsistent with, the
best interests of the Company and its stockholders. Approval by
a majority of the members of the Audit Committee (or by the
Chairman of the Audit Committee in the circumstances described
below) will be sufficient to approve a related person
transaction.
As described above, the written policy provides that proposed
related person transactions would normally be considered by the
Audit Committee at a meeting. However, the policy includes
procedures to address situations when approvals need to be
sought between scheduled Audit Committee meetings. The policy
provides that in those instances in which the Companys
general counsel, in consultation with the Companys Chief
Executive Officer and the Chairman of the Audit Committee,
determines that it is not practical or desirable for the Company
to delay seeking approval of a related person transaction until
the next scheduled Audit Committee, or until a special meeting
of the Audit Committee can be convened, the management shall
submit the proposed related person transaction to the Chairman
of the Audit Committee, who will have delegated authority to
consider and act on behalf of the Committee with respect to the
proposed related person transaction. In that event, the Chairman
of the Audit Committee will consider all of the relevant facts
and circumstances available to the Chairman, including (if
applicable) but not limited to those described above which would
be considered by the Audit Committee at a meeting at which the
proposed related person transaction was being considered. If a
related person transaction is approved in this manner by the
Chairman of the Audit Committee, such approval will be reported
to the Audit Committee at its next meeting.
Director
Independence
The Board of Directors has determined that each of our
directors, other than Mr. Swenson and Mr. Labonte, is
independent under the listing standards of The Nasdaq Stock
Market, Inc. Mr. Swenson serves as our Chairman, and until
June 30, 2008, served as our CEO and Mr. Labonte
currently serves as our CEO. Therefore, the Board of Directors
determined that they are not independent under the listing
standards of the Nasdaq Stock Market, Inc. In making its
independence determinations, the Board of Directors reviewed
transactions and relationships, if any, between the directors or
any member of his or her immediate family and us or one or more
of our subsidiaries or affiliates based on information provided
by the directors, Company records and publicly available
information.
|
|
ITEM 14.
|
PRINCIPAL
ACCOUNTANT FEES AND SERVICES
|
The following table shows the fees paid by Rock of Ages for the
audit and other services provided by Grant Thornton LLP and its
affiliates for fiscal 2009 and 2008. The Audit Committee
considered all of these services rendered by Grant Thornton LLP
and its affiliates to be compatible with the maintenance of
Grant Thornton LLPs and its affiliates independence.
F-43
The Audit Committee did not utilize the de minimis exception to
the pre-approval requirements to approve any services provided
by Grant Thornton LLP and its affiliates during fiscal 2009.
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
Audit Fees(1)
|
|
$
|
291,643
|
|
|
$
|
410,950
|
|
Tax Fees(2)
|
|
|
78,260
|
|
|
|
81,830
|
|
All Other Fees
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
369,903
|
|
|
$
|
492,780
|
|
|
|
|
|
|
|
|
|
|
The Audit Committee has delegated to the Chair of the Audit
Committee the authority to pre-approve audit-related and
non-audit services not prohibited by law to be performed by Rock
of Ages independent auditors, provided the Chair shall
report any decisions to pre-approve such audit-related or
non-audit services and fees to the full Audit Committee at its
next regular meeting and the Audit Committee ratifies the
approval of such non-audit services by the Chair.
|
|
(1)
|
Audit fees represent fees for professional services provided in
connection with the audit of our financial statements and review
of our quarterly financial statements and audit services
provided in connection with other statutory or regulatory
filings, including out of pocket expenses.
|
|
(2)
|
For 2008, tax fees included $9,000 for tax consultations related
to the filing of the IRS Form 338(h)(10) election which was
an election to treat the stock sale of the retail division as an
asset sale for tax purposes.
|
PART IV
|
|
ITEM
15.
|
EXHIBITS
AND FINANCIAL STATEMENT SCHEDULES
|
(a) The following documents are filed as part of or are
included in this Annual Report on
Form 10-K
and are incorporated herein by reference:
1. The financial statements listed in the Index to
Consolidated Financial Statements and Financial Statement
Schedule, filed as part of this Annual Report on
Form 10-K.
2. All schedules for which provision is made in the
applicable accounting regulations of the Securities and Exchange
Commission are not required under the related instructions or
are inapplicable and therefore have been omitted.
3. The exhibits listed in the Exhibit Index filed as
part of this Annual Report on
Form 10-K.
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
2
|
.1
|
|
Agreement and Plan of Merger dated October 21, 2009 by and
between Rock of Ages Corporation (a Delaware corporation)
and Rock of Ages Corporation (Vermont) (incorporated herein
by reference to Exhibit 2.1 to the Companys Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.1
|
|
Articles of Incorporation of the Company (incorporated herein by
reference to Exhibit 3.1 to the Companys Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.2
|
|
By-laws of the Company (incorporated herein by reference to
Exhibit 3.2 to the Companys Current Report on
Form 8-K
and filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.3
|
|
Articles of Merger filed with the Vermont Secretary of State
dated December 7, 2009 (incorporated herein by reference to
Exhibit 3.3 to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.4
|
|
Certificate of Merger filed with the Delaware Secretary of State
dated December 7, 2009 (incorporated herein by reference to
Exhibit 3.4 to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
F-44
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
4
|
.1
|
|
Specimen Certificate representing the Class A Common Stock
(incorporated herein by reference to Exhibit 4.1 to the
Companys Amendment No. 2 to Registration Statement on
Form 8-A
(Commission File
No. 0-2964)
filed with the Securities and Exchange Commission on
December 15, 2009).
|
|
10
|
.1*
|
|
First Amendment and Restatement of Rock of Ages Corporation
Key Employees Deferred Salary Plan dated April 6, 2006
(incorporated herein by reference to Exhibit 10.1 to the
Companys Annual Report on
Form 10-K
for the year ended December 31, 2006 and filed with the
Securities and Exchange Commission on April 2, 2007).
|
|
10
|
.2*
|
|
Rock of Ages 2005 Stock Plan (incorporated herein by
reference to Exhibit 10.1 to the Companys Current
Report on
Form 8-K
and filed with the Securities and Exchange Commission on
June 23, 2005).
|
|
10
|
.3*
|
|
Amendment to Salary Continuation Agreement of Kurt M. Swenson
dated April 20, 2006 (incorporated herein by reference to
Exhibit 10.7 to the Companys Quarterly Report on
Form 10-Q
for the quarterly period ended July 1, 2006 and filed with
the Securities and Exchange Commission on August 14, 2006).
|
|
10
|
.4*
|
|
Retirement Agreement of Kurt M. Swenson dated April 28,
2008 (incorporated herein by reference to Exhibit 10.1 to
the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
April 29, 2008).
|
|
10
|
.5*
|
|
Form of Salary Continuation Agreement (incorporated herein by
reference to Exhibit 10.15 to the Companys
Registration Statement on
Form S-1
(Registration
No. 333-33685)
filed with the Securities and Exchange Commission on
August 15, 1997 and declared effective on October 20,
1997).
|
|
10
|
.6
|
|
Form of Collective Bargaining Agreement between Rock of
Ages Corporation Quarry Division and the United
Steelworkers of America, AFL_CIO_CLC on behalf of Amalgamated
Local #4 (incorporated by reference to Exhibit 10.4 to the
Companys Quarterly Report on
Form 10-Q
for the quarterly period ended July 4, 2009 and filed with
the Securities and Exchange Commission on August 14, 2009).
|
|
10
|
.7
|
|
Form of Collective Bargaining Agreement between Rock of
Ages Corporation Manufacturing Division and the
United Steelworkers of America, AFL_CIO_CLC on behalf of
Amalgamated Local #4 (incorporated by reference to
Exhibit 10.5 to the Companys Quarterly Report on
Form 10-Q
for the quarterly period ended July 4, 2009 and filed with
the Securities and Exchange Commission on August 14, 2009).
|
|
10
|
.8
|
|
Form of Collective Bargaining Agreement between Rock of
Ages Corporation Manufacturing Division and the
Granite Cutters Association (incorporated by reference to
Exhibit 10.6 to the Companys Quarterly Report on
Form 10-Q
for the quarterly period ended July 4, 2009 and filed with
the Securities and Exchange Commission on August 14, 2009).
|
|
10
|
.9
|
|
Credit Facility dated as of October 26, 2009 between Royal
Bank of Canada and Rock of Ages Canada, Inc.
|
|
10
|
.10
|
|
Supply Agreement dated as of January 11, 2002 by and
between Rock of Ages Corporation and Adams Granite Co.,
Inc. (incorporated herein by reference to exhibit 10.15 to
the Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2001 and filed with
the Securities and Exchange Commission on April 1, 2002).
|
|
10
|
.11
|
|
Amendment to Supply Agreement dated as of January 1, 2004
by and between Rock of Ages Corporation and Adams Granite
Co., Inc. (Incorporated by reference to Exhibit 10.2 to the
Companys annual Report on
Form 10-K
for the fiscal year ended December 31, 2006 and filed with
the Securities and Exchange Commission on April 2, 2007).
|
|
10
|
.12
|
|
Amendment No. 2 to Supply Agreement dated as of
January 16, 2007 by and between Rock of
Ages Corporation and Adams Granite Co., Inc. (incorporated
by reference to Exhibit 10.21 to the Companys Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2006 and filed with
the Securities and Exchange Commission on April 2, 2007)
|
F-45
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
10
|
.13
|
|
Stock Purchase Agreement dated as of January 17, 2008 by
and between PKDM Holdings, Inc. and Rock of
Ages Corporation (incorporated herein by reference to
Exhibit 2.1 to the Companys Current Report on
Form 8-K
and filed with the Securities and Exchange Commission on
January 23, 2008).
|
|
10
|
.14
|
|
Termination Agreement and General Release dated January 17,
2008 by and between Richard M. Urbach and the Company
(incorporated by reference to Exhibit 10.25 to the
Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2007 and filed with
the Securities and Exchange Commission on March 31, 2008).
|
|
10
|
.15
|
|
Authorized Retailer Supply and License Agreement dated
January 17, 2008 by and between the Company, PKDM Holdings,
Inc., North American Heritage Services, Inc., Keith Monument
Company, LLC, and Sioux Falls Monument Co., LLC (incorporated by
reference to Exhibit 10.26 to the Companys Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2007 and filed with
the Securities and Exchange Commission on March 31,
2008).
|
|
10
|
.16
|
|
Amendment No. 1 to Supply Agreement dated as of
January 16, 2009 (executed and delivered March 10,
2009) by and between Rock of Ages Corporation and PKDM
Holdings, Inc. (incorporated by reference to Exhibit 10.1
to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
March 11, 2009).
|
|
10
|
.17
|
|
Amended and Restated Financing Agreement dated October 24,
2007 by and between The CIT Group/Business Credit, Inc. and
Carolina Quarries, Inc., Pennsylvania Granite Corp., Keith
Monument Company, LLC, Rock of Ages Memorials, Inc., Sioux
Falls Monument Co., and the Company (incorporated herein by
reference to Exhibit 10.1 to the Companys Current
Report on
Form 8-K
and filed with the Securities and Exchange Commission on
October 25, 2007).
|
|
10
|
.18
|
|
First Amendment to Amended and Restated Financing Agreement
dated March 30, 2009 by and between The CIT Group/Business
Credit, Inc. and Carolina Quarries, Inc., Pennsylvania Granite
Corp., and the Company (incorporated herein by reference to
Exhibit 10.1 to the Companys Current Report on
Form 8-K
and filed with the Securities and Exchange Commission on
March 31, 2009).
|
|
10
|
.19
|
|
Letter from The CIT Group/Business Credit, Inc. to Carolina
Quarries, Inc., Pennsylvania Granite Corp., Keith Monument
Company, LLC, Rock of Ages Memorials, Inc., Sioux Falls
Monument Co., and the Company consenting to sale of the
Companys retail division (incorporated by reference to
Exhibit 10.28 to the Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2007 and filed with
the Securities and Exchange Commission on March 31, 2008).
|
|
10
|
.20
|
|
Consent and Assumption Agreement dated December 7, 2009 by
and among the Company, Rock of Ages Corporation (a Delaware
corporation), The CIT Group/Business Credit, Inc. and Peoples
United Bank (incorporated herein by reference to
Exhibit 10.1 to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
10
|
.21
|
|
Supplemental Retirement Plan for Donald Labonté dated as of
January 1, 2007 (incorporated by reference to
Exhibit 10.29 to the Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2007 and filed with
the Securities and Exchange Commission on March 31, 2008)
|
|
10
|
.22
|
|
Employment Agreement of Donald M. Labonte dated as of
July 1, 2008 (executed and delivered on August 26,
2008) (incorporated herein by reference to Exhibit 10.1 to
the Companys Current Report on
Form 8-K
and filed with the Securities and Exchange Commission on
August 28, 2008).
|
|
10
|
.23
|
|
Asset Purchase Agreement dated April 17, 2009 by and
between Rock of Ages Canada, Inc., a wholly-owned
subsidiary of the Company, and Carrieres Polycor, Inc., for the
purchase of real and personal property comprising the Polycor
Stanstead Quarry, located in Stanstead, Quebec (incorporated by
reference to Exhibit 10.3 to the Companys Quarterly
Report on
Form 10-Q
for the quarterly period ending April 4, 2009 and filed
with the Securities and Exchange Commission on May 19,
2009). This exhibit is the original contract written in French.
|
|
10
|
.24
|
|
English translation of the Asset Purchase Agreement dated
April 17, 2009 by and between Rock of Ages Canada,
Inc., a wholly-owned subsidiary of the Company, and Carrieres
Polycor, Inc., for the purchase of real and personal property
comprising the Polycor Stanstead Quarry, located in Stanstead,
Quebec (incorporated by reference to Exhibit 10.4 to the
Companys Quarterly Report on
Form 10-Q
for the quarterly period ending April 4, 2009 and filed
with the Securities and Exchange Commission on May 19,
2009).
|
F-46
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
11
|
.
|
|
Statement re: computation of per share earnings (incorporated
herein by reference to Note (1)(n) of the Companys
consolidated financial statements (filed herewith)).
|
|
21
|
.
|
|
Subsidiaries of the Company
|
|
23
|
.1
|
|
Consent of Grant Thornton LLP
|
|
31
|
.1
|
|
Certification of CEO pursuant to
Rule 13a-14(a)
or
Rule 15d-14(a)
of the Securities Exchange Act of 1934, as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
31
|
.2
|
|
Certification of CFO pursuant to
Rule 13a-14(a)
or
Rule 15d-14(a)
of the Securities Exchange Act of 1934, as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
32
|
.1
|
|
Certification of CEO pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes Oxley Act of 2002.
|
|
32
|
.2
|
|
Certification of CFO pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes Oxley Act of 2002.
|
|
|
|
*
|
|
This exhibit is a management contract or compensatory plan or
arrangement.
|
|
|
|
Portions of this exhibit have been omitted and filed separately
with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
|
F-47
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Consolidated Financial Statements
December 31, 2009 and 2008
(With Report of Independent Registered Public Accounting Firm
Thereon)
F-48
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Table of
Contents
|
|
|
|
|
|
|
Page
|
|
|
|
|
F-50
|
|
|
|
|
F-51
|
|
|
|
|
F-52
|
|
|
|
|
F-53
|
|
|
|
|
F-54
|
|
|
|
|
F-55
|
|
Supplementary Information:
|
|
|
|
|
|
|
|
F-80
|
|
F-49
|
|
|
|
|
Audit Tax Advisory
Grant Thornton LLP
226 Causeway Street, 6th Floor
Boston, MA 02114-2155
T 617.723.7900
F 617.723.3640
www.GrantThornton.com
|
The Board of Directors and Stockholders
Rock of Ages Corporation:
We have audited the accompanying consolidated balance sheets of
Rock of Ages Corporation (a Vermont Corporation) and
subsidiaries (collectively, the Company) as of
December 31, 2009 and 2008 and the related statements of
operations, stockholders equity and comprehensive income
(loss), and cash flows for the years then ended. Our audits of
the basic financial statements included the financial statement
schedule listed in the index appearing under Item 15
(a)(2). These financial statements and financial statement
schedule are the responsibility of the Companys
management. Our responsibility is to express an opinion on these
financial statements and financial statement schedule based on
our audits.
We conducted our audits in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. The Company is not required to
have, nor were we engaged to perform, an audit of its internal
control over financial reporting. Our audit included
consideration of internal control over financial reporting as a
basis for designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion
on the effectiveness of the Companys internal control over
financial reporting. Accordingly, we express no such opinion. An
audit also includes examining, on a test basis, evidence
supporting the amounts and the disclosures in the financial
statements, assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred
to above present fairly, in all material respects, the financial
position of Rock of Ages Corporation and subsidiaries as of
December 31, 2009 and 2008 and the results of their
operations and their cash flows for the years then ended in
conformity with accounting principles generally accepted in the
United States of America. Also in our opinion, the related
financial statement schedule, when considered in relation to the
basic financial statements taken as a whole, presents fairly, in
all material respects, the information set forth therein.
Boston, Massachusetts
March 31, 2010
Grant
Thornton LLP
U.S.
member firm of Grant Thornton International Ltd
F-50
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
December 31,
2009 and 2008
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
ASSETS
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
1,712,760
|
|
|
$
|
888,099
|
|
Trade receivables, less allowance for doubtful accounts of
$324,446 in 2009 and $342,039 in 2008
|
|
|
7,241,144
|
|
|
|
13,314,324
|
|
Inventories
|
|
|
15,076,775
|
|
|
|
16,839,448
|
|
Income taxes receivable
|
|
|
429,281
|
|
|
|
135,682
|
|
Other current assets
|
|
|
1,191,124
|
|
|
|
1,425,065
|
|
Assets held for sale
|
|
|
758,501
|
|
|
|
477,274
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
26,409,585
|
|
|
|
33,079,892
|
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment:
|
|
|
|
|
|
|
|
|
Granite reserves and development costs
|
|
|
17,636,252
|
|
|
|
16,300,376
|
|
Land
|
|
|
3,917,749
|
|
|
|
3,963,610
|
|
Buildings and improvements
|
|
|
11,215,557
|
|
|
|
10,950,292
|
|
Machinery and equipment
|
|
|
28,411,977
|
|
|
|
27,304,228
|
|
Furniture and fixtures
|
|
|
931,912
|
|
|
|
965,006
|
|
Construction-in-process
|
|
|
7,333
|
|
|
|
292,029
|
|
|
|
|
|
|
|
|
|
|
|
|
|
62,120,780
|
|
|
|
59,775,541
|
|
Less accumulated depreciation, depletion and amortization
|
|
|
31,562,227
|
|
|
|
29,777,079
|
|
|
|
|
|
|
|
|
|
|
Net property, plant and equipment
|
|
|
30,558,553
|
|
|
|
29,998,462
|
|
|
|
|
|
|
|
|
|
|
Other assets:
|
|
|
|
|
|
|
|
|
Cash surrender value of life insurance policies
|
|
|
136,792
|
|
|
|
132,184
|
|
Identified intangible assets, net
|
|
|
476,144
|
|
|
|
570,954
|
|
Goodwill
|
|
|
387,156
|
|
|
|
387,156
|
|
Debt issuance costs, net
|
|
|
105,978
|
|
|
|
143,381
|
|
Deferred tax asset
|
|
|
39,534
|
|
|
|
|
|
Other long-term assets
|
|
|
338,303
|
|
|
|
130,833
|
|
|
|
|
|
|
|
|
|
|
Total other assets
|
|
|
1,483,907
|
|
|
|
1,364,508
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
58,452,045
|
|
|
$
|
64,442,862
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Borrowings under line of credit
|
|
$
|
214,446
|
|
|
$
|
7,428,085
|
|
Current maturities of long-term debt
|
|
|
800,616
|
|
|
|
517,113
|
|
Trade payables
|
|
|
1,285,295
|
|
|
|
1,334,125
|
|
Accrued expenses
|
|
|
1,264,287
|
|
|
|
2,225,986
|
|
Salary continuation and other post-employment liabilities
|
|
|
690,654
|
|
|
|
567,274
|
|
Customer deposits
|
|
|
773,717
|
|
|
|
453,595
|
|
Current deferred tax liabilities
|
|
|
236,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
5,265,015
|
|
|
|
12,526,178
|
|
Long-term debt, net of current maturities
|
|
|
13,361,451
|
|
|
|
13,904,214
|
|
Salary continuation liabilities, net of current portion
|
|
|
5,386,090
|
|
|
|
5,381,913
|
|
Accrued pension cost
|
|
|
4,809,907
|
|
|
|
9,025,673
|
|
Accrued post-employment benefit cost
|
|
|
1,621,954
|
|
|
|
1,622,671
|
|
Other liabilities
|
|
|
1,503,701
|
|
|
|
1,523,338
|
|
Deferred tax liabilities
|
|
|
|
|
|
|
27,421
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
31,948,118
|
|
|
|
44,011,408
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies (Note 4)
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
Preferred stock No par value; 2,500,000 shares
authorized; none issued
|
|
|
|
|
|
|
|
|
Common stock Class A, No par value;
30,000,000 shares authorized; 4,812,342 shares issued
and outstanding as of December 31, 2009 and 2008
|
|
|
48,124
|
|
|
|
48,124
|
|
Common Stock Class B, No par value;
15,000,000 shares authorized; 2,603,721 shares issued
and outstanding as of December 31, 2009 and 2008
|
|
|
26,037
|
|
|
|
26,037
|
|
Additional paid-in capital
|
|
|
65,750,600
|
|
|
|
65,688,524
|
|
Accumulated deficit
|
|
|
(34,745,545
|
)
|
|
|
(35,547,869
|
)
|
Accumulated other comprehensive loss
|
|
|
(4,575,289
|
)
|
|
|
(9,783,362
|
)
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
26,503,927
|
|
|
|
20,431,454
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity
|
|
$
|
58,452,045
|
|
|
$
|
64,442,862
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-51
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Years
Ended December 31, 2009 and 2008
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Net revenues:
|
|
|
|
|
|
|
|
|
Quarry
|
|
$
|
21,682,316
|
|
|
$
|
28,685,500
|
|
Manufacturing
|
|
|
23,838,831
|
|
|
|
27,183,365
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
|
45,521,147
|
|
|
|
55,868,865
|
|
|
|
|
|
|
|
|
|
|
Cost of goods sold:
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
16,670,187
|
|
|
|
21,332,267
|
|
Quarry inventory write-down
|
|
|
|
|
|
|
3,929,686
|
|
Manufacturing
|
|
|
17,571,473
|
|
|
|
19,715,534
|
|
|
|
|
|
|
|
|
|
|
Total cost of goods sold
|
|
|
34,241,660
|
|
|
|
44,977,487
|
|
|
|
|
|
|
|
|
|
|
Gross profit:
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
5,012,129
|
|
|
|
3,423,547
|
|
Manufacturing
|
|
|
6,267,358
|
|
|
|
7,467,831
|
|
|
|
|
|
|
|
|
|
|
Total gross profit
|
|
|
11,279,487
|
|
|
|
10,891,378
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses:
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
2,242,915
|
|
|
|
2,266,873
|
|
Manufacturing
|
|
|
3,933,555
|
|
|
|
4,382,813
|
|
Corporate overhead
|
|
|
3,042,110
|
|
|
|
3,635,699
|
|
Impairment of long-lived assets
|
|
|
|
|
|
|
1,348,253
|
|
Effect of pension curtailment
|
|
|
95,136
|
|
|
|
|
|
Foreign exchange loss (income)
|
|
|
131,161
|
|
|
|
(27,071
|
)
|
Other income, net
|
|
|
(405,385
|
)
|
|
|
(424,555
|
)
|
|
|
|
|
|
|
|
|
|
Total selling, general and administrative expenses
|
|
|
9,039,492
|
|
|
|
11,182,012
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
|
2,239,995
|
|
|
|
(290,634
|
)
|
Interest expense, net
|
|
|
1,157,808
|
|
|
|
1,367,564
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations before income taxes
|
|
|
1,082,187
|
|
|
|
(1,658,198
|
)
|
Provision for income taxes
|
|
|
279,863
|
|
|
|
394,980
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
|
|
|
802,324
|
|
|
|
(2,053,178
|
)
|
Discontinued operations
|
|
|
|
|
|
|
(142,311
|
)
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
802,324
|
|
|
$
|
(2,195,489
|
)
|
|
|
|
|
|
|
|
|
|
Net income (loss) per share basic and diluted:
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
|
|
$
|
0.11
|
|
|
$
|
(0.28
|
)
|
Discontinued operations
|
|
|
|
|
|
|
(0.02
|
)
|
|
|
|
|
|
|
|
|
|
Net income (loss) per share
|
|
$
|
0.11
|
|
|
$
|
(0.30
|
)
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares outstanding
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
7,416,063
|
|
|
|
7,416,063
|
|
See accompanying notes to consolidated financial statements.
F-52
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Years
Ended December 31, 2009 and 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
Class A
|
|
|
Class B
|
|
|
Additional
|
|
|
|
|
|
Other
|
|
|
Total
|
|
|
|
Common
|
|
|
Common
|
|
|
Paid-in
|
|
|
Accumulated
|
|
|
Comprehensive
|
|
|
Stockholders
|
|
|
|
Stock
|
|
|
Stock
|
|
|
Capital
|
|
|
Deficit
|
|
|
Loss
|
|
|
Equity
|
|
|
Balance at December 31, 2007
|
|
$
|
46,775
|
|
|
$
|
27,386
|
|
|
$
|
65,656,658
|
|
|
$
|
(33,352,380
|
)
|
|
$
|
(1,907,703
|
)
|
|
$
|
30,470,736
|
|
Comprehensive loss:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,195,489
|
)
|
|
|
|
|
|
|
(2,195,489
|
)
|
Cumulative translation adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,020,538
|
)
|
|
|
(2,020,538
|
)
|
Net unrealized loss on securities available for sale
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(94,600
|
)
|
|
|
(94,600
|
)
|
Pension liability adjustment, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,760,521
|
)
|
|
|
(5,760,521
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(10,071,148
|
)
|
Stock compensation expense
|
|
|
|
|
|
|
|
|
|
|
31,866
|
|
|
|
|
|
|
|
|
|
|
|
31,866
|
|
Conversion of common stock
|
|
|
1,349
|
|
|
|
(1,349
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2008
|
|
$
|
48,124
|
|
|
$
|
26,037
|
|
|
$
|
65,688,524
|
|
|
$
|
(35,547,869
|
)
|
|
$
|
(9,783,362
|
)
|
|
$
|
20,431,454
|
|
Comprehensive income (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
802,324
|
|
|
|
|
|
|
|
802,324
|
|
Cumulative translation adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,522,897
|
|
|
|
1,522,897
|
|
Net unrealized gain on securities available for sale
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,800
|
|
|
|
25,800
|
|
Pension liability adjustment, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,659,376
|
|
|
|
3,659,376
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,010,397
|
|
Stock compensation expense
|
|
|
|
|
|
|
|
|
|
|
62,076
|
|
|
|
|
|
|
|
|
|
|
|
62,076
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2009
|
|
$
|
48,124
|
|
|
$
|
26,037
|
|
|
$
|
65,750,600
|
|
|
$
|
(34,745,545
|
)
|
|
$
|
(4,575,289
|
)
|
|
$
|
26,503,927
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-53
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Years
Ended December 31, 2009 and 2008
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
802,324
|
|
|
$
|
(2,195,489
|
)
|
Adjustments to reconcile net income (loss) to net cash provided
by operating activities:
|
|
|
|
|
|
|
|
|
Impairment of long-lived asset
|
|
|
|
|
|
|
1,348,253
|
|
Write-down of inventory
|
|
|
|
|
|
|
3,929,686
|
|
Other than temporary impairment on investment
|
|
|
|
|
|
|
93,640
|
|
Gain on sale of assets
|
|
|
(229,925
|
)
|
|
|
(197,061
|
)
|
Depreciation, depletion and amortization
|
|
|
2,497,502
|
|
|
|
2,399,793
|
|
Deferred taxes
|
|
|
164,686
|
|
|
|
(21,327
|
)
|
Stock compensation expense
|
|
|
62,076
|
|
|
|
31,866
|
|
Cash surrender value of life insurance policies
|
|
|
(4,609
|
)
|
|
|
54,271
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
Decrease (increase) in trade receivables
|
|
|
6,243,419
|
|
|
|
(1,942,652
|
)
|
Decrease (increase) in inventories
|
|
|
2,399,448
|
|
|
|
11,623
|
|
Decrease (increase) in other current assets
|
|
|
(59,658
|
)
|
|
|
106,555
|
|
Decrease (increase) in other assets
|
|
|
(171,017
|
)
|
|
|
(88,203
|
)
|
Increase (decrease) in trade payables and accrued expenses
|
|
|
(1,073,763
|
)
|
|
|
(657,309
|
)
|
Increase (decrease) in customer deposits
|
|
|
320,123
|
|
|
|
(293,014
|
)
|
Increase (decrease) in salary continuation, pension and
post-employment liabilities
|
|
|
(445,185
|
)
|
|
|
(497,180
|
)
|
Increase (decrease) in other liabilities
|
|
|
(19,638
|
)
|
|
|
200,865
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
10,485,783
|
|
|
|
2,284,317
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
Purchases of property, plant and equipment
|
|
|
(1,778,841
|
)
|
|
|
(3,088,531
|
)
|
Purchase of intangible asset
|
|
|
|
|
|
|
(179,197
|
)
|
Purchase of quarries
|
|
|
(1,136,943
|
)
|
|
|
|
|
Proceeds from sale of assets
|
|
|
461,823
|
|
|
|
473,032
|
|
Proceeds from sale of retail division
|
|
|
|
|
|
|
7,716,604
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by investing activities
|
|
|
(2,453,961
|
)
|
|
|
4,921,908
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
Net repayments under line of credit
|
|
|
(7,213,639
|
)
|
|
|
(3,070,301
|
)
|
Principal payments on long-term debt
|
|
|
(260,819
|
)
|
|
|
(4,923,910
|
)
|
Debt issuance costs
|
|
|
|
|
|
|
(24,101
|
)
|
|
|
|
|
|
|
|
|
|
Net cash used in financing activities
|
|
|
(7,474,458
|
)
|
|
|
(8,018,312
|
)
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate changes on cash and cash equivalents
|
|
|
267,297
|
|
|
|
(260,326
|
)
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash and cash equivalents
|
|
|
824,661
|
|
|
|
(1,072,413
|
)
|
Cash and cash equivalents, beginning of year
|
|
|
888,099
|
|
|
|
1,960,512
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of year
|
|
$
|
1,712,760
|
|
|
$
|
888,099
|
|
|
|
|
|
|
|
|
|
|
Supplemental cash flow information:
|
|
|
|
|
|
|
|
|
Cash paid during the year for:
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
1,204,512
|
|
|
$
|
1,405,359
|
|
Income taxes
|
|
|
392,675
|
|
|
|
550,772
|
|
Supplemental non-cash investing and financing activities:
The Company recorded an adjustment due to an increase in the
funded status of the pension plans of $3,659,376 in 2009. In
2008, the Company recorded an adjustment due to a decrease in
the funded status of the pension plans of $5,760,521.
See accompanying notes to consolidated financial statements.
F-54
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
December 31,
2009 and 2008
|
|
(1)
|
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
|
In this report, the terms Company, we,
us, or our mean Rock of
Ages Corporation and all subsidiaries included in our
consolidated financial statements. Rock of Ages was founded in
1885 and is an integrated granite quarrier and manufacturer
whose principal product is granite memorials used primarily in
cemeteries. We own and operate nine active quarry properties and
five manufacturing and sawing facilities in North America,
principally in Vermont and the Province of Quebec. Until the
retail division was sold on January 17, 2008, we marketed
and distributed our memorials on a retail basis through
approximately eighty Company-owned retail sales outlets in
sixteen states. We sell memorials wholesale to approximately
115 independent authorized Rock of Ages retailers in the
United States as well as approximately 116 retailers in Canada.
(a) PRINCIPLES
OF CONSOLIDATION
The accompanying consolidated financial statements include the
accounts of the Company and its wholly owned subsidiaries. All
significant inter-company balances and transactions have been
eliminated in consolidation.
(b) CASH
AND CASH EQUIVALENTS
We consider financial instruments that are both readily
convertible to cash and so near their maturity that they present
insignificant risk of changes in value because of changes in
interest rates to be cash equivalents.
The Company had approximately $1,699,000 and $873,000 of cash
and cash equivalents in foreign banks at December 31, 2009
and 2008, respectively.
(c) INVENTORIES
Inventories are stated at the lower of cost or market. Cost is
determined using the specific annual average cost method for the
quarry segment and the specific cost method for the
manufacturing segment.
(d) PROPERTY,
PLANT AND EQUIPMENT
The Company capitalizes significant purchases of items having
expected useful lives in excess of one year. Property, plant and
equipment are stated at cost. Depreciation is calculated using
the straight-line and declining balance methods based upon the
following estimated useful lives:
|
|
|
Buildings and improvements
|
|
10 to 40 years
|
Leasehold improvements
|
|
Shorter of the estimated useful life or lease term
|
Machinery and equipment
|
|
3 to 20 years
|
Furniture and fixtures
|
|
5 to 12 years
|
Depreciation expense amounted to $2,251,372 and $2,117,274 in
2009 and 2008, respectively.
Cost depletion and amortization of granite reserves and
development costs are charged to operations based on cubic feet
produced in relation to estimated reserves of the property. Cost
depletion and amortization charged to operations amounted to
$78,939 and $126,124 in 2009 and 2008, respectively.
(e) GOODWILL
AND IDENTIFIED INTANGIBLE ASSETS
Identified intangible assets (those intangible assets with
definite estimated useful lives) are recorded at fair value at
the date of acquisition and are amortized, using the
straight-line method, over their estimated useful lives. Such
intangible assets are reviewed for impairment as set forth in
note 1 (l).
F-55
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
Goodwill is recorded when consideration paid for a business
acquisition exceeds the fair value of the net tangible and
identifiable intangible assets acquired. The Company tests
goodwill for impairment annually and when an event occurs or
circumstances change that would more likely than not reduce the
fair value of a reporting unit below its carrying value.
Goodwill is tested for impairment using a two-step process. The
first step is to determine if there is an impairment based on
the estimated fair value of the Quarry reporting unit compared
to its carrying value and the second step, if necessary, is to
determine the amount of the impairment.
During the fourth quarter of 2009, based on a combination of
factors, including the Companys market capitalization
being less than consolidated shareholders equity, the
Company concluded that there were sufficient indicators to
require the Company to perform an interim goodwill impairment
analysis as of December 31, 2009. Accordingly, the Company
performed a step 1 impairment assessment of its goodwill and
determined that the estimated fair value of the Quarry reporting
unit exceeded its carrying value. The estimated fair value of
the reporting unit was determined using a discounted cash flow
as the best evidence of fair value. There can be no assurance
that goodwill will not become impaired in future periods. The
Company performs its annual impairment test in the first quarter.
(f) DEBT
ISSUANCE COSTS
The Company amortizes debt issuance costs using the
straight-line method over the term of the related borrowing.
Amortization expense was $37,404 and $36,543 in 2009 and 2008,
respectively, and is reported with interest expense in the
accompanying consolidated statements of operations.
(g) FOREIGN
CURRENCY TRANSLATION
The functional currency of the Companys Canadian
subsidiary is the Canadian dollar. The Company translates the
accounts of its foreign subsidiary in accordance with the
accounting literature regarding foreign currency translation,
under which all assets and liabilities are translated at the
rate of exchange in effect at year-end. Revenue and expense
accounts are translated using weighted average exchange rates in
effect during the year. Gains or losses from foreign currency
translation are included in accumulated other comprehensive
loss, which is included in stockholders equity in the
accompanying consolidated financial statements. All realized and
unrealized transaction gains and losses are separately reported
in the statements of operations.
(h) INCOME
TAXES
The Company files its U.S. Federal income tax return on a
consolidated basis. Rock of Ages Canada, Inc., a wholly
owned subsidiary, is responsible for income taxes in Canada. Max
Mining, a wholly owned subsidiary, is responsible for income
taxes in Luxembourg.
We recognize deferred tax assets and liabilities for the future
tax consequences attributable to the difference between the
financial statement carrying amounts of existing assets and
liabilities and their respective tax basis. Deferred tax assets
and liabilities are measured using enacted tax rates expected to
apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled.
The ultimate realization of deferred tax assets depends upon the
generation of future taxable income during the periods in which
those temporary differences become deductible. In assessing the
realizability of deferred tax assets, management considers
whether it is more likely than not that some portion or all of
the deferred tax assets will be realized. Management considers
the scheduled reversal of deferred tax liabilities, projected
future taxable income and tax planning strategies in making this
assessment. This assessment is made each reporting period.
F-56
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
The Company is allowed to claim percentage depletion for tax
purposes under IRS Code Section 613 based upon income
derived from quarrying operations.
The Company follows the FASB guidance on accounting for
uncertain tax positions formerly known as FIN 48. This
guidance clarifies accounting for income taxes by prescribing
the minimum threshold a tax position is required to meet before
being recognized in the financial statements. It also provides
guidance on derecognition, measurement, classification, interest
and penalties, accounting in interim periods, disclosure and
transition. We have no unrecognized tax benefits or liabilities
related to uncertain tax positions.
(i) STOCK-BASED
EMPLOYEE COMPENSATION
The Company accounts for share-based payments in accordance with
the requirement that all share-based payments to employees,
including grants of employee stock options, be recognized in the
financial statements based on their fair values.
(j) PENSION
AND OTHER POST-EMPLOYMENT PLANS
The Company maintains a defined benefit pension plan covering
substantially all of its Vermont based non-union employees. The
benefits are based on years of service and the employees
compensation. The Companys funding policy is to annually
contribute amounts sufficient to meet minimum funding
requirements as set forth in employee benefit and tax laws plus
such additional amounts, if any, as we may determine to be
appropriate. In 2009, the Company approved a freeze of
membership and benefits in this plan.
We have salary continuation plans that cover certain employees
described in more detail in Note 9. We measure the cost of
our obligations based on actuarial estimates and recognize net
periodic costs as employees render the necessary services to
earn the benefits.
The Company also sponsors a post-employment health care plan for
certain early retirees and executive officers and
post-employment group life insurance plans for all Vermont-based
union and non-union employees. We measure the cost of our
obligations based on actuarial estimates and recognize net
periodic costs as employees render the services necessary to
earn the post-employment benefits.
(k) USE
OF ESTIMATES
The preparation of financial statements in conformity with
accounting principles generally accepted in the United States of
America requires management to use estimates and assumptions
that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of
the financial statements, and the reported amounts of revenues
and expenses during the reporting period. Actual results could
differ from these estimates. Material estimates that are
particularly susceptible to significant change are the estimated
useful lives of property, plant and equipment, the deferred tax
asset valuation allowance, actuarial assumptions affecting
pension and other post-employment plan accounting, inventory
valuation, the allowance for doubtful accounts receivable and
long-lived asset impairments.
(l) IMPAIRMENT
OF LONG-LIVED ASSETS
The Company accounts for long-lived assets in accordance with
accounting guidance which requires that long-lived assets and
certain identifiable intangibles be reviewed for impairment
whenever events or changes in circumstances indicate the
carrying amount of an asset may not be recoverable. We measure
recoverability of assets to be held and used by a comparison of
the carrying amount of an asset to estimated, undiscounted
future cash flows expected to be generated by the asset. If the
carrying amount of an asset exceeds its estimated future cash
flows, an impairment charge is recognized for the amount by
which the carrying amount of the asset exceeds its fair value.
F-57
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
(m) REVENUE
RECOGNITION
Quarry
The granite we quarry is sold to outside customers and used by
our manufacturing group. Our quarry division recognizes revenue
from sales of granite blocks to outside customers when
persuasive evidence of an arrangement exists, delivery has
occurred or the services have been provided and accepted by the
customer, fees are determinable and collectibility is reasonably
assured. We generally provide a 5% discount for domestic
customers if payment is made within 30 days of purchase,
except in the case of December terms described below. Sales to
foreign customers are typically secured by a letter of credit.
At our Barre, Vermont quarries, we allow customers to purchase
granite blocks and, at their request, we store the blocks for
them. Many of our customers do not have adequate storage space
at their facilities and want to ensure an adequate supply of
blocks, especially when the Barre quarries are closed from
mid-December through mid-March because of weather. Blocks are
sold when the customer selects and identifies the block at the
quarry site, requests the block be stored and they have
significant business reasons to do so. At that time, the block
is removed from inventory, the customers name is printed
on the block, and title and risk of ownership passes to the
buyer. The customer is invoiced and normal payment terms apply,
except in the case of December terms described below. Granite
blocks owned by customers remain on our property for varying
periods of time after title passes. We retain a delivery
obligation using our trucks. However, we consider the earnings
process substantially complete because the cost of delivery
service is inconsequential (less than 3%) in relation to the
selling price. Further, under industry terms of trade, title
passes and the payment obligation is established when the block
is identified at the quarry.
Each December, we offer special payment terms to customers of
our Barre quarries. As noted above, from approximately
mid-December to approximately mid-March, our Barre quarries are
closed due to weather. During this time, manufacturing plants
remain open and many customers prefer to ensure they own blocks
of a size and quality selected by them prior to the
quarries closure. All blocks purchased in December are
invoiced on or about December 31 and, at that time, the blocks
are removed from inventory, the customers name is printed
on the blocks, and title and risk of ownership passes to the
buyer. Payment terms are one-third of the invoice amount on
January 15, one-third on February 15, and one-third on
March 15. The program provides essentially the normal
30-day
payment terms during the months when the Barre quarries are
closed notwithstanding the customer purchases a three-month
supply in December and makes payments over 90 days.
Customers need not use these special December terms and may buy
from inventory during the closure period on a first-come,
first-served basis with the normal
30-day
payment terms.
Manufacturing
We record revenue related to internally transferred granite only
after the granite is manufactured into a finished product and
sold to an outside customer. Manufacturing revenues related to
outside customers are recorded when the finished product is
shipped from our facilities or set in a cemetery, if we are
responsible for the setting, which is when risk of ownership
transfers to the customer, persuasive evidence of an arrangement
exists and collectibility is reasonably assured.
Freight
Freight and handling fees charged to customers for shipping
product are included in revenues and the related costs are
classified in cost of sales.
(n) NET
INCOME (LOSS) PER SHARE
Net income (loss) per share, or basic earnings (loss) per share,
is computed by dividing earnings available for common shares by
the weighted average number of common shares outstanding during
each year. Net
F-58
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
income (loss) per share diluted, or diluted earnings
(loss) per share, is computed by dividing earnings available for
common shares by the weighted average number of common shares
outstanding during each year, adjusted to include the additional
number of common shares that would have been outstanding if the
dilutive potential common shares under stock based compensation
programs had been issued. Potential common shares are not
included in the diluted income (loss) per share calculations
when the effect of their inclusion would be antidilutive, such
as when the Company incurs a net loss.
(o) ACCUMULATED
OTHER COMPREHENSIVE LOSS
Other comprehensive loss consists of the following components,
which are presented in the consolidated statements of
stockholders equity and comprehensive loss.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
Foreign
|
|
|
Unfunded
|
|
|
Investment
|
|
|
Other
|
|
|
|
Currency
|
|
|
Pension
|
|
|
Available
|
|
|
Comprehensive
|
|
|
|
Translation
|
|
|
Liability
|
|
|
For Sale
|
|
|
Loss
|
|
|
Balance at December 31, 2007
|
|
$
|
3,525,745
|
|
|
$
|
(5,467,848
|
)
|
|
$
|
34,400
|
|
|
$
|
(1,907,703
|
)
|
Other comprehensive loss
|
|
|
(2,020,538
|
)
|
|
|
(5,760,521
|
)
|
|
|
(94,600
|
)
|
|
|
(7,875,659
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2008
|
|
$
|
1,505,207
|
|
|
$
|
(11,228,369
|
)
|
|
$
|
(60,200
|
)
|
|
$
|
(9,783,362
|
)
|
Other comprehensive income
|
|
|
1,522,897
|
|
|
|
3,659,376
|
|
|
|
25,800
|
|
|
|
5,208,073
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2009
|
|
$
|
3,028,104
|
|
|
$
|
(7,568,993
|
)
|
|
$
|
(34,400
|
)
|
|
$
|
(4,575,289
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Included in other comprehensive income/loss was a
reclassification adjustment of $86,000 in 2008 for the
investment available for sale. Included in other comprehensive
income/loss was a reclassification adjustment of $482,000 and
$345,000 in 2009 and 2008, respectively, for the unfunded
pension liability.
(p) INVESTMENTS
Through its wholly owned subsidiary, Max Mining, the Company had
a 1/3-equity interest in VIKA, Ltd., a Ukrainian closed stock
company that owns the rights to quarry stone known as
Galactic Blue on certain property located in the
Ukraine. As of December 31, 2007, the Company wrote-off its
investment in VIKA and as of December 31, 2009 the Company
sold its shares to the remaining stockholder for $170,583. In
conjunction with this sale the Company entered into an exclusive
distribution agreement with VIKA pursuant to which the Company
has the exclusive worldwide right to sell and distribute all
quarried products of VIKA including slabs and other finished
products for five years.
The Company owns common stock of a public company, representing
an equity interest of less than 20%, where we do not exercise
significant influence over the operating and financial policies
of the investee. This investment is accounted for as available
for sale and is carried at fair market value with unrecognized
gain or loss recorded in accumulated other comprehensive loss.
As of December 31, 2008 the Company determined that the
stock had experienced an impairment in value that was other than
temporary and as a result the Company recorded a loss of $94,000.
(q) ADVERTISING
EXPENSES
Advertising costs are expensed as incurred, and amounted to
$179,000 and $173,000 in 2009 and 2008, respectively.
(r) WARRANTY
Our memorials are covered by a full perpetual or a limited
perpetual warranty depending on the particular granite. The
Company estimates probable warranty costs at the time revenue is
recognized. The Company
F-59
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
exercises judgment in determining its accrued warranty liability
and considers factors that may affect warranty liability,
including historical and anticipated rates of warranty claims.
To date, warranty obligations have not been significant.
(s) ASSET
RETIREMENT OBLIGATIONS
The Company regularly evaluates legal obligations associated
with the retirement of tangible long-lived assets that result
from acquisition, construction, development or normal operation
of a long-lived asset. Based on the most current analysis of
such obligations, we determined the related liability to be
insignificant. Many of our permits to quarry, especially in
Vermont and Canada, pre-date the current remediation
regulations, therefore pre-date any retirement obligations
related to these quarries.
(t) ACCOUNTS
RECEIVABLE AND ALLOWANCE FOR DOUBTFUL ACCOUNTS
Receivables relate to amounts due from customers of each of our
segments. The Company generally requires collateral in the form
of a deposit, the amount of which depends upon the length of the
relationship with the customer, past payment history of the
customer and other factors. In the case of most foreign
transactions, a letter of credit securing payment is required.
To reduce credit risk, credit assessments are performed prior to
accepting an initial order from most quarry and manufacturing
customers. Trade accounts receivable are recorded at the
invoiced amount and do not bear interest.
The estimated allowance for doubtful accounts receivable is
based, in large part, upon judgments and estimates of inherent
losses. The Company determines the allowance based on a specific
evaluation of delinquent accounts and considers a number of
factors, including the length of time trade accounts receivable
are past due and previous loss experience. Accounts receivable
determined to be losses are written off against the allowance;
any recoveries of receivables previously written off are
credited to the allowance when received.
(u) FAIR
VALUE MEASUREMENTS
The Company accounts for its financial assets and liabilities in
accordance with current accounting guidance which establishes a
framework for measuring fair value and expands disclosure
requirements. It defines fair value as the price that would be
received to sell an asset, or paid to transfer a liability, in
an orderly transaction between market participants.
The valuation techniques are based on observable or unobservable
inputs. Observable inputs reflect market data obtained from
independent sources, while unobservable inputs reflect the
Companys market assumptions. These two types of inputs
have created the following fair value hierarchy:
|
|
|
|
|
Level 1
Quoted prices for identical
instruments in active markets.
|
|
|
|
Level 2
Quoted prices for similar
instruments in active markets; quoted prices for identical or
similar instruments in markets that are not active; and
model-derived valuations in which significant value drivers are
observable.
|
|
|
|
Level 3
Valuations derived from
valuation techniques in which significant value drivers are
unobservable.
|
The carrying value of cash and cash equivalents, accounts
receivable and accounts payable approximates fair value because
of the short-term nature of these instruments. Investment
securities are carried at fair value using level one inputs. The
long-term and short-term debt instruments bear interest at
variable rates, which at December 31, 2009 we estimated to
be at market. At December 31, 2008 we estimated the
interest rates to be
F-60
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
below market. If this debt was at market rates we estimated the
carrying value would be approximately $1.8 million more.
(v) RECENT
ACCOUNTING PRONOUNCEMENTS
In December 2008, the FASB issued an amendment to the
Compensation
topic regarding employers disclosures
about postretirement benefit plan assets. This guidance requires
more detailed disclosures about plan assets of a defined benefit
pension or other postretirement plan, including investment
strategies; major categories of plan assets; concentrations of
risk within plan assets; inputs and valuation techniques used to
measure the fair value of plan assets; and the effect of
fair-value measurements using significant unobservable inputs on
changes in plan assets for the period. It is effective for
fiscal years ending after December 15, 2009, with earlier
application permitted. The adoption of this amended guidance did
not have a material effect on our financial position or results
of operations but did result in expanded financial statement
disclosures (see note 8).
In May 2009, the FASB issued the
Subsequent Events
topic
which establishes standards under which an entity shall
recognize and disclose events that occur after a balance sheet
date, but before the related financial statements are issued or
are available to be issued. The guidance is effective for fiscal
years and interim periods ending after June 15, 2009. The
Company has evaluated and disclosed subsequent events through
the date of this filing. See note 18 for a discussion of
subsequent events.
In January 2010, the FASB issued accounting guidance to enhance
fair value measurement disclosures by requiring the reporting
entity to disclose separately the amounts of significant
transfers in and out of Level 1 and Level 2 fair value
measurements and describe the reason for the transfers.
Furthermore, activity in Level 3 fair value measurements
should separately provide information about purchases, sales,
issues and settlements rather than providing that information as
one net number. These new disclosures are effective for interim
and annual reporting periods beginning after December 15,
2009, with the exception of the enhanced Level 3
disclosures, which are effective for interim and annual
reporting periods beginning after December 15, 2010. The
Company does not expect that application of this guidance will
have a material impact on our financial position or results of
operations.
|
|
(2)
|
GOODWILL
AND IDENTIFIED INTANGIBLE ASSETS
|
Goodwill and identified intangible assets consist of the
following at December 31, 2009 and 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated
|
|
|
|
|
|
|
|
|
Useful Life
|
|
2009
|
|
|
2008
|
|
|
Goodwill
|
|
Indefinite
|
|
$
|
387,156
|
|
|
$
|
387,156
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer lists
|
|
5 -10 Years
|
|
$
|
617,875
|
|
|
$
|
617,875
|
|
Less accumulated amortization
|
|
|
|
|
(238,965
|
)
|
|
|
(176,567
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
378,910
|
|
|
|
441,308
|
|
Covenants not to compete
|
|
5 Years
|
|
$
|
342,123
|
|
|
$
|
342,123
|
|
Less accumulated amortization
|
|
|
|
|
(244,889
|
)
|
|
|
(212,477
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
97,234
|
|
|
|
129,646
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other identified intangible assets
|
|
|
|
$
|
476,144
|
|
|
$
|
570,954
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization expense was $129,787 and $119,854 in 2009 and 2008,
respectively.
F-61
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
Estimated future amortization expense related to identified
intangible assets is as follows:
|
|
|
|
|
Year Ending December 31
|
|
|
|
|
2010
|
|
$
|
129,787
|
|
2011
|
|
|
129,787
|
|
2012
|
|
|
129,787
|
|
2013
|
|
|
36,531
|
|
2014
|
|
|
31,000
|
|
Thereafter
|
|
|
19,252
|
|
Inventories consist of the following at December 31, 2009
and 2008:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Raw materials
|
|
$
|
10,401,787
|
|
|
$
|
11,610,189
|
|
Work-in-process
|
|
|
1,056,541
|
|
|
|
1,165,909
|
|
Finished goods and supplies
|
|
|
3,618,447
|
|
|
|
4,063,350
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
15,076,775
|
|
|
$
|
16,839,448
|
|
|
|
|
|
|
|
|
|
|
The finished goods and supplies inventory includes $1,905,000
and $2,075,000 of retail display inventory as of
December 31, 2009 and December 31, 2008, respectively,
that is located at various retail locations and is consigned to
PKDM Holdings Inc., (PKDM) the owners of the
Companys former retail division. PKDM is responsible for
purchasing this inventory at the Companys book value as it
is sold plus any inventory remaining after the tenth anniversary
of the transaction (January 2018).
During the fourth quarter of 2008, the Company reevaluated the
current quantities of second grade or B block
inventory at its export quarries, Bethel, Salisbury and
Gardenia. Due to escalating freight costs, which can account for
up to 50% of the selling price of blocks, as well as the
continued downturn in the global economy, fewer customers were
willing to purchase B blocks. Based on these
circumstances the Company estimated approximately
$3.9 million of this inventory to be excessive as of
December 31, 2008 and, accordingly, recorded the write-down
during the fourth quarter of 2008.
|
|
(4)
|
COMMITMENTS
AND CONTINGENCIES
|
Leases
The Company has several non-cancelable operating leases for land
and vehicles. Rental expense for all operating leases was
$201,516 and $204,142 in 2009 and 2008, respectively.
Future minimum lease payments under non-cancelable operating
leases (with initial or remaining lease terms in excess of one
year) are as follows:
|
|
|
|
|
Year Ending December 31,
|
|
|
|
|
2010
|
|
$
|
198,425
|
|
2011
|
|
|
187,959
|
|
2012
|
|
|
181,448
|
|
2013
|
|
|
167,489
|
|
2014
|
|
|
130,477
|
|
Thereafter
|
|
|
134,392
|
|
|
|
|
|
|
|
|
$
|
1,000,190
|
|
|
|
|
|
|
F-62
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
The Company also is the lessor of certain parcels of land and
buildings. The leases expire at various times through 2028.
Rental income was $128,234 and $148,228 in 2009 and 2008,
respectively. Future minimum rentals to be received under
non-cancelable leases are as follows:
|
|
|
|
|
Year Ending December 31
|
|
|
|
|
2010
|
|
$
|
123,617
|
|
2011
|
|
|
117,926
|
|
2012
|
|
|
97,904
|
|
2013
|
|
|
102,980
|
|
2014
|
|
|
41,146
|
|
Thereafter
|
|
|
520,253
|
|
|
|
|
|
|
|
|
$
|
1,003,826
|
|
|
|
|
|
|
Purchase
Commitment
In connection with the sale of the Lawson manufacturing plant in
Barre, Vermont (Lawson) in 2001, the Company entered
into a Supply Agreement with Adams Granite Co.
(Adams). The Company agreed to purchase a minimum of
$3,000,000 of monuments from Adams each year for a term of seven
years with various stipulations as to variations from the
minimum order and pricing agreements. If orders over
a two-year period were less than the minimum order,
then the Company would at its sole option, either place orders
for monuments in the amount of the deficiency or pay Adams the
gross margin that Adams would have realized had such orders been
placed and filled. The gross margin used in this calculation
would be Adams average gross margin on sales of monuments
to the Company over the prior two-year period.
The Supply Agreement with Adams was amended over the years
reducing the minimum order obligation to $1,200,000 for the
final year ending January 10, 2010. The Company exceeded
its minimum order obligation for the final year ending
January 10, 2010 and no longer has an obligation to
purchase monuments from Adams.
Litigation
The Company is party to legal proceedings that arise from time
to time in the ordinary course of its business. While the
outcome of these proceedings cannot be predicted with certainty,
management based on its discussions with legal counsel, does not
expect any of these matters to have a material adverse effect on
the Companys financial condition, results of operations or
cash flows.
Regulatory
Matters
The U.S. Mine Safety and Health Administration (MSHA)
issued citations in 2009 to one of our subsidiaries,
Pennsylvania Granite, asserting various violations and assessed
fines totaling approximately $280,000. The Company disagrees
with the validity of these violations and how they are
characterized. We are appealing the citations. Based on
experience of our legal counsel in settling similar assessments
and available historical MSHA settlement data, we estimate our
final exposure will be no greater than $125,000.
Other
commitments
The Company has an employment agreement with its chief executive
officer that includes a change in control provision providing
for the lump-sum payment of an amount equal to one years
salary and certain other benefits in the event of a change in
control of the Company.
F-63
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
In October 2007, the Company entered into a credit facility (the
Facility) with its existing lenders, the CIT
Group/Business Credit and Chittenden Trust Company
(Lenders) that is scheduled to expire in October
2012 and is secured by substantially all assets of the Company
located in the United States. The Facility consists of an
acquisition term loan line of credit of up to $30.0 million
and a revolving credit facility of up to another
$20.0 million based on eligible accounts receivable,
inventory and certain fixed assets less standby letters of
credit. Amounts outstanding were $214,446 and $13,885,960 as of
December 31, 2009 and $7,428,085 and $14,106,939 as of
December 31, 2008, on the revolving credit facility and the
term loan line of credit, respectively. Availability under the
revolving credit facility was $10,745,414 as of
December 31, 2009. The term loan line of credit is
available to pay for the acquisition of quarries or
manufacturers and items incidental to the acquisitions subject
to various restrictions. The weighted average interest rate was
5.3% and 4.7% on the revolving credit facility in 2009 and 2008,
respectively. The Facility places restrictions on our ability
to, among other things, sell assets, participate in mergers,
incur debt, pay dividends, make capital expenditures, repurchase
stock and make investments or guarantees, without pre-approval
by the Lenders.
Minimum Fixed Charge Coverage Ratio.
The
facility requires the ratio of the sum of earnings before
interest, taxes, depreciation and amortization (EBITDA), to the
sum of income taxes paid, capital expenditures, interest and
scheduled debt repayments be at least 1.10 for any trailing
twelve-month period at the end of a quarter. As of
December 31, 2009 we were in compliance with the Minimum
Fixed Charge Coverage Ratio. Due to the non-cash impairment
charges on the write-down of inventory and the corporate
building in 2008 we were in violation of the covenant at
December 31, 2008. We received a waiver of this covenant
from the Lenders and amended the agreement effective
March 31, 2009. As a result of the amendment the unused
line fee went from .25% to .50% and the existing interest rate
pricing grid was changed as follows:
|
|
|
|
|
|
|
Revolving Credit Facility
|
|
Term Loan
|
|
Previous Rate Formula
|
|
Prime or Libor +2%
|
|
Prime + .25% or Libor +2.25%
|
Amended Rate Formula
|
|
Prime + 3% or Libor + 4%
|
|
Prime + 3.5% or Libor + 4.5%
|
Total Liabilities to Net Worth Ratio.
The
Facility also requires that the ratio of our total liabilities
to net worth (the Leverage Ratio) not exceed 2.0.
The Leverage Ratio excludes from the calculation the change in
tangible net worth directly resulting from the Companys
compliance with accounting rules regarding unfunded retirement
liabilities, up to $6 million. As of December 31,
2009, we were in compliance with the Leverage Ratio covenant.
Interest Rates.
We can elect the interest rate
structure under the credit facility based on the prime rate or
LIBOR for both the revolving credit facility and the term loan
with a LIBOR floor of 2.0%.
The rates in effect as of December 31, 2009 were as follows:
|
|
|
|
|
|
|
|
|
|
|
Formula
|
|
|
Effective Rate
|
|
|
Revolving Credit Facility
|
|
|
Prime + 3.0
|
%
|
|
|
6.25
|
%
|
Term Loan
|
|
|
Prime + 3.5
|
%
|
|
|
6.75
|
%
|
The Companys Canadian subsidiary has a line of credit
agreement with the Royal Bank of Canada that is renewable
annually in December. Under the terms of this agreement, a
maximum of $2.5 million CDN may be advanced based on
eligible accounts receivable, eligible inventory, and tangible
fixed assets. The line of credit bears interest at the Canadian
prime rate plus 0.5%.
The Canadian subsidiary also has a non-revolving term loan which
cannot exceed $4,000,000 CDN bearing interest at the Canadian
prime rate plus 0.95%. Amortization of the loan is based on
72 months but the interest rate is negotiated yearly. There
was nothing outstanding on either loan at December 31, 2009
or December 31, 2008. See note 18 Subsequent
Events for additional information.
F-64
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
Long-term debt at December 31, 2009 and 2008 consists of
the following:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Term loan interest at 6.75% and 3.50% at
December 31, 2009 and December 31, 2008, respectively
(see note 5), due October 2012, secured by substantially
all assets of the Company
|
|
$
|
13,885,960
|
|
|
$
|
14,106,939
|
|
Note payable Former employee, interest at 8%,
payable in monthly payments of $2,593, unsecured, due January
2021
|
|
|
227,146
|
|
|
|
239,546
|
|
Note payable Vehicles, interest at 0.0%, monthly
payments ranging from $330 to $800
|
|
|
48,961
|
|
|
|
74,842
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14,162,067
|
|
|
|
14,421,327
|
|
Less current maturities
|
|
|
800,616
|
|
|
|
517,113
|
|
|
|
|
|
|
|
|
|
|
Long-term debt, net of current maturities
|
|
$
|
13,361,451
|
|
|
$
|
13,904,214
|
|
|
|
|
|
|
|
|
|
|
Scheduled maturities of long-term debt as of December 31,
2009 are as follows:
|
|
|
|
|
Year Ending December 31
|
|
|
|
|
2010
|
|
$
|
42,115
|
|
2011
|
|
|
32,505
|
|
2012
|
|
|
13,904,026
|
|
2013
|
|
|
17,058
|
|
Thereafter
|
|
|
166,363
|
|
|
|
|
|
|
|
|
$
|
14,162,067
|
|
|
|
|
|
|
Income (loss) from continuing operations before income taxes,
classified by source, for the years ended December 31, 2009
and 2008 is as follows:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
U.S.
|
|
$
|
(179,683
|
)
|
|
$
|
(3,026,508
|
)
|
Foreign
|
|
|
1,261,870
|
|
|
|
1,368,310
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations before income taxes
|
|
$
|
1,082,187
|
|
|
$
|
(1,658,198
|
)
|
|
|
|
|
|
|
|
|
|
F-65
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
A summary of the significant components of the provision
(benefit) for income taxes for the years ended December 31,
2009 and 2008 is as follows:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Current:
|
|
|
|
|
|
|
|
|
Federal
|
|
$
|
(303,385
|
)
|
|
$
|
|
|
State
|
|
|
|
|
|
|
|
|
Foreign
|
|
|
418,562
|
|
|
|
416,307
|
|
|
|
|
|
|
|
|
|
|
|
|
|
115,177
|
|
|
|
416,307
|
|
|
|
|
|
|
|
|
|
|
Deferred:
|
|
|
|
|
|
|
|
|
Federal
|
|
|
59,000
|
|
|
|
|
|
State
|
|
|
|
|
|
|
|
|
Foreign
|
|
|
105,686
|
|
|
|
(21,327
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
164,686
|
|
|
|
(21,327
|
)
|
|
|
|
|
|
|
|
|
|
Total provision for income taxes
|
|
$
|
279,863
|
|
|
$
|
394,980
|
|
|
|
|
|
|
|
|
|
|
There are no income taxes, current or deferred, included in
either discontinued operations or other comprehensive income
(loss) in 2009 and 2008.
A reconciliation of differences between the statutory
U.S. federal income tax rate on the income (loss) from
continuing operations before income taxes and the Companys
effective tax rate follows:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
U.S. statutory rate
|
|
|
34.0
|
%
|
|
|
(34.0
|
)%
|
Change in valuation allowance
|
|
|
34.4
|
%
|
|
|
588.8
|
%
|
Loss on sale of retail division
|
|
|
|
|
|
|
(560.1
|
)%
|
Canadian repatriation
|
|
|
21.8
|
%
|
|
|
|
|
Monetization of AMT credits
|
|
|
(28.1
|
)%
|
|
|
|
|
Other, including tax depletion
|
|
|
(36.2
|
)%
|
|
|
29.1
|
%
|
|
|
|
|
|
|
|
|
|
Effective tax rate
|
|
|
25.9
|
%
|
|
|
23.8
|
%
|
|
|
|
|
|
|
|
|
|
F-66
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
The tax effects of temporary differences that give rise to
significant portions of the deferred tax assets and deferred tax
liabilities at December 31, 2009 and 2008 are presented
below:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
Accrued pension, postretirement benefits and deferred
compensation
|
|
$
|
3,526,000
|
|
|
$
|
5,008,000
|
|
Allowance for doubtful accounts
|
|
|
52,000
|
|
|
|
63,000
|
|
Accrued expenses
|
|
|
91,000
|
|
|
|
93,000
|
|
Inventories
|
|
|
1,108,000
|
|
|
|
1,236,000
|
|
Deferred revenue
|
|
|
|
|
|
|
8,000
|
|
Names and reputations
|
|
|
224,000
|
|
|
|
280,000
|
|
Alternative minimum tax credits
|
|
|
2,630,000
|
|
|
|
2,932,000
|
|
Foreign tax credits
|
|
|
2,097,000
|
|
|
|
2,097,000
|
|
Charitable contribution limitation
|
|
|
52,000
|
|
|
|
67,000
|
|
State net operating loss carryforward
|
|
|
3,229,000
|
|
|
|
3,528,000
|
|
Federal net operating loss carryforward
|
|
|
11,456,000
|
|
|
|
12,784,000
|
|
Property and equipment
|
|
|
327,534
|
|
|
|
|
|
Impairment charges
|
|
|
375,000
|
|
|
|
375,000
|
|
Accrued warranty
|
|
|
30,000
|
|
|
|
19,000
|
|
Cash surrender value
|
|
|
24,000
|
|
|
|
25,000
|
|
|
|
|
|
|
|
|
|
|
Total gross deferred tax assets
|
|
|
25,221,534
|
|
|
|
28,515,000
|
|
Less valuation allowance
|
|
|
(24,918,000
|
)
|
|
|
(28,155,000
|
)
|
|
|
|
|
|
|
|
|
|
Total net deferred tax asset
|
|
|
303,534
|
|
|
|
360,000
|
|
|
|
|
|
|
|
|
|
|
Deferred tax liabilities:
|
|
|
|
|
|
|
|
|
Quarry development
|
|
|
(238,000
|
)
|
|
|
(268,000
|
)
|
Other liabilities
|
|
|
(26,000
|
)
|
|
|
(8,000
|
)
|
Property and equipment
|
|
|
|
|
|
|
(111,421
|
)
|
Foreign unremitted earnings
|
|
|
(236,000
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total gross deferred tax liabilities
|
|
|
(500,000
|
)
|
|
|
(387,421
|
)
|
|
|
|
|
|
|
|
|
|
Net deferred tax liability
|
|
$
|
(196,466
|
)
|
|
$
|
(27,421
|
)
|
|
|
|
|
|
|
|
|
|
Deferred tax assets include significant alternative minimum tax
credit carry-forwards, which have been fully reserved and may be
carried forward indefinitely. Utilization of these alternative
minimum tax credits is limited to future federal income tax in
excess of the alternative minimum tax. Deferred tax assets also
include federal and state net operating loss carry-forwards,
which have been fully reserved due to uncertainties regarding
sufficient future taxable income to utilize such carryforwards.
During 2005, based on taxable income and projections for future
taxable income, the Company believed it was not more likely than
not that it would generate the required taxable income to fully
realize the benefit of the net U.S. deferred tax assets. As
such, we adjusted our valuation allowance against the deferred
tax assets to fully reserve for the entire net
U.S. deferred tax asset. Since 2005, we have continued to
fully reserve for the entire net U.S. deferred tax asset.
We continue to assess the valuation allowance on a regular basis
and may reduce the valuation allowance if
and/or
when
the Company has taxable income from its U.S. operations.
F-67
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
Gross deferred tax assets decreased $3,293,466 during 2009. The
valuation allowance decreased $3,237,000 in order to maintain
our fully reserved position.
As of December 31, 2009, the Company has U.S. federal
net operating loss carryforwards of approximately
$57 million which will be available to offset future
taxable income. If not used, these carryforwards will expire in
2024 through 2029. The use of our federal net operating loss
carryforwards may be restricted if there is a change in control
of the Company as defined by Internal Revenue Code
Section 382.
Deferred taxes have, historically, not been provided on the
undistributed earnings of the Companys wholly owned
Canadian subsidiary since the Company can control the
distribution of such earnings and has determined such earnings
will be reinvested indefinitely. Additional taxes could be due
if these earnings were distributed. In 2009, we determined that
$4,000,000 of undistributed earnings would not be reinvested
indefinitely as the subsidiary was most likely going to pay the
parent a $4,000,000 dividend in 2010. Therefore the 5% Canadian
withholding tax of $200,000 CDN and incremental U.S. taxes
of $59,000 were accrued in 2009.
As permitted by the Housing Assistance Tax Act of 2008, the
Company has elected to forgo bonus depreciation and claim
accelerated AMT credit carryforward from tax years beginning
before 2006. The Company elected for 2008 and 2009 to benefit
from the monetization of AMT credits and included in the 2009
tax provision is $302,059 of related tax benefits.
The Company applies a more likely than not threshold
to the recognition and derecognition of income tax positions.
The Company recorded no unrecognized tax benefits or liabilities
related to uncertain tax positions at December 31, 2009 and
2008. Interest would be recognized as interest income or expense
and penalties would be included in selling, general and
administrative expenses. We do not anticipate a material change
in our tax positions within the next twelve months. The Company
files income tax returns in the U.S. federal jurisdiction
and various state and foreign jurisdictions. The Company is no
longer subject to U.S. federal income tax examinations by
tax authorities for years before 2006 or Canadian tax
authorities for years before 2004. However, even though the tax
years are closed the tax attributes may remain open to
adjustment.
|
|
(8)
|
PENSION
AND OTHER BENEFIT PLANS
|
The Company sponsors a qualified defined benefit pension plan
for eligible Vermont based non-union employees. The plan is
noncontributory and provides benefits based upon a formula
calculated by reference to length of service and final average
earnings. On January 5, 2009, the Companys Board of
Directors approved actions to proceed with amendments to its
defined benefit pension plan by freezing membership and future
benefits in the plan. This action was effective as of
March 31, 2009. As a replacement of this benefit management
increased contributions to the existing 401(k) plan to 4%.
The Company has entered into nonqualified salary continuation
agreements with certain officers and former executives. These
agreements provide for supplemental pension benefits to be paid
beginning at age 55 and continuing through the life of the
retired employee and his surviving spouse.
The Company provides post-employment health care to executive
officers who retire at age 55 or older and their spouses,
and to a closed group of retirees selected by the Company. The
form and type of benefit is the same coverage that is in effect
for active employees, and the retiree pays his portion of the
premium for such coverage. Generally benefits cease at age 65.
The Company also provides post-employment life insurance of
$8,000 for all Vermont-based employees.
F-68
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
The following tables set forth actuarial information, plan asset
data, funded status and amounts recognized in the balance sheet
for the Companys defined benefit pension plan, salary
continuation plan and other post-employment benefits. The
Company uses a measurement date of December 31 for these plans.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
|
Other
|
|
|
|
Non-Union
|
|
|
Continuation
|
|
|
Post-Employment
|
|
|
|
Pension Benefits
|
|
|
Benefits
|
|
|
Benefits
|
|
|
|
2009
|
|
|
2008
|
|
|
2009
|
|
|
2008
|
|
|
2009
|
|
|
2008
|
|
|
CHANGE IN BENEFIT OBLIGATION:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benefit obligation at beginning of year
|
|
$
|
25,103,124
|
|
|
$
|
24,857,204
|
|
|
$
|
5,413,160
|
|
|
$
|
5,483,418
|
|
|
$
|
1,747,905
|
|
|
$
|
1,700,025
|
|
Service cost
|
|
|
65,417
|
|
|
|
315,204
|
|
|
|
|
|
|
|
|
|
|
|
4,964
|
|
|
|
6,111
|
|
Interest cost
|
|
|
1,501,114
|
|
|
|
1,508,876
|
|
|
|
335,917
|
|
|
|
322,457
|
|
|
|
105,268
|
|
|
|
108,103
|
|
Curtailment/assumption changes
|
|
|
(1,036,449
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Actuarial (gain)/loss
|
|
|
(343,176
|
)
|
|
|
(233,920
|
)
|
|
|
367,975
|
|
|
|
60,740
|
|
|
|
65,050
|
|
|
|
86,200
|
|
Benefits paid
|
|
|
(1,425,464
|
)
|
|
|
(1,344,240
|
)
|
|
|
(541,851
|
)
|
|
|
(453,455
|
)
|
|
|
(151,885
|
)
|
|
|
(152,534
|
)
|
Benefit obligation at end of year
|
|
$
|
23,864,566
|
|
|
$
|
25,103,124
|
|
|
$
|
5,575,201
|
|
|
$
|
5,413,160
|
|
|
$
|
1,771,302
|
|
|
$
|
1,747,905
|
|
CHANGE IN PLAN ASSETS:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of plan assets at beginning of year
|
|
$
|
16,077,451
|
|
|
$
|
21,188,923
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
Actual return on plan assets
|
|
|
3,423,223
|
|
|
|
(4,491,644
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employer contribution
|
|
|
1,042,749
|
|
|
|
754,000
|
|
|
|
541,851
|
|
|
|
453,455
|
|
|
|
151,885
|
|
|
|
142,017
|
|
Expenses
|
|
|
(63,300
|
)
|
|
|
(29,588
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benefits paid
|
|
|
(1,425,464
|
)
|
|
|
(1,344,240
|
)
|
|
|
(541,851
|
)
|
|
|
(453,455
|
)
|
|
|
(151,885
|
)
|
|
|
(142,017
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of plan assets at end of year
|
|
$
|
19,054,659
|
|
|
$
|
16,077,451
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Funded status
|
|
$
|
(4,809,907
|
)
|
|
$
|
(9,025,673
|
)
|
|
$
|
(5,575,201
|
)
|
|
$
|
(5,413,160
|
)
|
|
$
|
(1,771,302
|
)
|
|
$
|
(1,747,905
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amounts recognized in accumulated other comprehensive loss
consist of:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net actuarial loss
|
|
$
|
6,125,599
|
|
|
$
|
9,931,652
|
|
|
$
|
1,650,273
|
|
|
$
|
1,394,071
|
|
|
$
|
346,048
|
|
|
$
|
289,388
|
|
Prior service cost
|
|
|
|
|
|
|
126,848
|
|
|
|
|
|
|
|
|
|
|
|
292,307
|
|
|
|
326,696
|
|
Unrecognized transition obligation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19,789
|
|
|
|
24,737
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net amount recognized
|
|
$
|
6,125,599
|
|
|
$
|
10,058,500
|
|
|
$
|
1,650,273
|
|
|
$
|
1,394,071
|
|
|
$
|
658,144
|
|
|
$
|
640,821
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WEIGHTED-AVERAGE ASSUMPTIONS AS OF DECEMBER 31:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discount rate
|
|
|
6.00
|
%
|
|
|
6.30
|
%
|
|
|
5.91
|
%
|
|
|
6.30
|
%
|
|
|
5.91
|
%
|
|
|
6.30
|
%
|
Expected return on plan assets
|
|
|
8.00
|
%
|
|
|
8.00
|
%
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Rate of compensation increase
|
|
|
N/A
|
|
|
|
3.00
|
%
|
|
|
N/A
|
|
|
|
3.00
|
%
|
|
|
N/A
|
|
|
|
N/A
|
|
In 2009, we decreased the discount rate used to determine our
liability in the pension plan from 6.3% to 6.0%. In 2009, we
also decreased the discount rate in the salary continuation and
other post-employment benefit plans from 6.30% to 5.91%. In
2008, we kept the discount rate at 6.3% for all of the plans,
the same discount rate used at December 31, 2007. In both
years the rate was based on a bond matching model which uses
data on individual high-quality corporate bonds and the timing
and amount of the future benefit payments in our plan to develop
a weighted discount rate specific to our plan.
For measurement purposes, the annual rate of increase in the per
capita cost of covered health care benefits was assumed to be
9.2% for 2010, 8.5% for 2011, 8% for 2012, 7.5% for 2013, 7% for
2014, 6.5% for 2015, 6% for 2016 and 5% for 2017 and thereafter.
Assumed health care trends do not have a significant effect on
the amounts reported for the health care plan. For example, a 1%
increase in assumed trends would
F-69
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
increase the benefit obligation $17,240 and the service and
interest costs $1,297. A 1% decrease in assumed trends would
decrease the benefit obligation $16,077 and the service and
interest costs $1,206.
The following table sets forth the components of the net
periodic benefit cost recognized in the statements of operations
for the Companys defined benefit pension plan, salary
continuation plan and other post-employment benefits for 2009
and 2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
|
Other
|
|
|
|
Non-Union
|
|
|
Continuation
|
|
|
Post-Employment
|
|
|
|
Pension Benefits
|
|
|
Benefits
|
|
|
Benefits
|
|
|
|
2009
|
|
|
2008
|
|
|
2009
|
|
|
2008
|
|
|
2009
|
|
|
2008
|
|
|
COMPONENTS OF NET PERIODIC BENEFIT COST:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service cost
|
|
$
|
65,417
|
|
|
$
|
315,204
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
4,964
|
|
|
$
|
6,111
|
|
Interest cost
|
|
|
1,501,114
|
|
|
|
1,508,876
|
|
|
|
335,917
|
|
|
|
322,457
|
|
|
|
105,268
|
|
|
|
108,103
|
|
Expected return on plan assets
|
|
|
(1,224,515
|
)
|
|
|
(1,681,796
|
))
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of prior service cost
|
|
|
31,712
|
|
|
|
140,523
|
|
|
|
|
|
|
|
|
|
|
|
34,389
|
|
|
|
26,749
|
|
Amortization of transition obligation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,948
|
|
|
|
4,948
|
|
Recognized net actuarial loss
|
|
|
291,020
|
|
|
|
105,521
|
|
|
|
111,773
|
|
|
|
56,918
|
|
|
|
8,390
|
|
|
|
10,352
|
|
Recognition due to curtailment
|
|
|
95,136
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net periodic benefit cost
|
|
$
|
759,884
|
|
|
$
|
388,328
|
|
|
$
|
447,690
|
|
|
$
|
379,375
|
|
|
$
|
157,959
|
|
|
$
|
156,263
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WEIGHTED-AVERAGE ASSUMPTIONS USED TO DETERMINE NET PERIODIC
BENEFIT COST FOR YEARS ENDED DECEMBER 31:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discount rate
|
|
|
6.30
|
%
|
|
|
6.30
|
%
|
|
|
6.30
|
%
|
|
|
6.30
|
%
|
|
|
6.30
|
%
|
|
|
6.30
|
%
|
Expected return on plan assets
|
|
|
8.00
|
%
|
|
|
8.00
|
%
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Rate of compensation increase
|
|
|
3.00
|
%
|
|
|
3.00
|
%
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Union
|
|
|
Salary
|
|
|
Other
|
|
|
|
Pension
|
|
|
Continuation
|
|
|
Post-Employment
|
|
|
Amounts expected to be recognized in net periodic benefit
costs in 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
Service cost
|
|
$
|
|
|
|
$
|
|
|
|
$
|
6,742
|
|
Interest cost
|
|
|
1,387,734
|
|
|
|
314,673
|
|
|
|
104,751
|
|
Expected return on plan assets
|
|
|
(1,515,519
|
)
|
|
|
|
|
|
|
|
|
Net amortization
|
|
|
170,893
|
|
|
|
79,223
|
|
|
|
62,159
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total pension expense
|
|
$
|
43,108
|
|
|
$
|
393,896
|
|
|
$
|
173,652
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan
Assets
The Companys overall investment strategy is to achieve a
long-term rate of return of 8.0%, with a wide diversification of
asset types. The following table sets forth the actual asset
allocation for the plan assets:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
Target Range
|
|
Equities
|
|
|
54
|
%
|
|
48%
|
|
34% - 64%
|
Fixed income
|
|
|
45
|
%
|
|
51%
|
|
25% - 45%
|
Cash equivalent
|
|
|
1
|
%
|
|
1%
|
|
0 - 5%
|
The Company invests equity holdings primarily in mutual funds
which are diversified among the spectrum of value and growth,
large, medium and small cap, domestic and foreign securities, as
appropriate, to achieve
F-70
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
the objective of a balanced portfolio, which optimizes the
expected returns and volatility in the various asset classes.
Fixed income holdings are in the form of mutual funds that hold
a combination of short-duration, investment-grade fixed-income
securities, inflation-indexed bonds of varying maturities issued
by the U.S. and
non-U.S. governments,
and a diversified selection of investment-grade, fixed income
securities, including corporate securities, mortgage-backed
securities, U.S. government securities and U.S. dollar
denomination bonds of foreign issuers.
Cash equivalents are held in money market funds.
The Company prohibits certain transactions in its plan
including, but not limited to: short sales, commodities,
transactions on margin, letter stock, unregistered or restricted
stock, private placements, and derivative securities.
The Company determines its investment strategies based on the
composition of the beneficiaries in its defined benefit plan and
the relative time horizons that those beneficiaries receive
payouts from the plan. In addition, the Company receives advice
from our actuaries and plan administrator regarding market
conditions, which, taken together with the characteristics of
the plan, result in the investment strategy.
The Companys plan assets were as follows at
December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of
|
|
Asset Category
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
|
Assets
|
|
|
Cash Equivalent:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Premier money market
|
|
$
|
|
|
|
$
|
36,570
|
|
|
$
|
|
|
|
$
|
36,570
|
|
|
|
.19
|
%
|
Fixed Income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Premier short-duration bond
|
|
|
|
|
|
|
2,340,294
|
|
|
|
|
|
|
|
2,340,294
|
|
|
|
12.28
|
%
|
Premier core bond
|
|
|
|
|
|
|
4,534,094
|
|
|
|
|
|
|
|
4,534,092
|
|
|
|
23.80
|
%
|
Premier inflation-protected bond
|
|
|
|
|
|
|
1,804,727
|
|
|
|
|
|
|
|
1,804,727
|
|
|
|
9.47
|
%
|
Equities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Large-cap value
|
|
|
|
|
|
|
1,390,697
|
|
|
|
|
|
|
|
1,390,697
|
|
|
|
7.30
|
%
|
Select fundamental value
|
|
|
|
|
|
|
1,464,448
|
|
|
|
|
|
|
|
1,464,448
|
|
|
|
7.69
|
%
|
Growth of America
|
|
|
|
|
|
|
1,557,725
|
|
|
|
|
|
|
|
1,557,725
|
|
|
|
8.18
|
%
|
Premier capital appreciation
|
|
|
|
|
|
|
1,659,109
|
|
|
|
|
|
|
|
1,659,109
|
|
|
|
8.71
|
%
|
Mid-cap value
|
|
|
|
|
|
|
611,126
|
|
|
|
|
|
|
|
611,126
|
|
|
|
3.21
|
%
|
Select mid-cap growth
|
|
|
|
|
|
|
663,112
|
|
|
|
|
|
|
|
663,112
|
|
|
|
3.48
|
%
|
Select small company value
|
|
|
|
|
|
|
606,334
|
|
|
|
|
|
|
|
606,334
|
|
|
|
3.18
|
%
|
Select small-cap growth
|
|
|
|
|
|
|
649,382
|
|
|
|
|
|
|
|
649,382
|
|
|
|
3.41
|
%
|
Euro Pacific growth
|
|
|
|
|
|
|
1,737,041
|
|
|
|
|
|
|
|
1,737,041
|
|
|
|
9.10
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
19,054,659
|
|
|
|
|
|
|
|
19,054,659
|
|
|
|
100.00
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The assets used in our plan are Separate Investment Accounts
that utilize unit values and not net asset values. Unit values
are calculated based on observable net asset values of the
underlying investment and are considered Level 2 inputs.
Contributions
The Company was required to make quarterly contributions to the
pension plan totaling $390,332 for 2009. We also made a
voluntary contribution of $750,000 in September 2009. We expect
to contribute
F-71
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
approximately the same amount in 2010. In August 2006, the
Pension Protection Act was signed into law. Among other things,
the Act is aimed at strengthening pension plans by requiring
most pension plans to become fully funded over a seven-year
period. The Worker, Retiree and Employer Recovery Act of 2008
has provided modest relief from the market events in 2008 by
decreasing short term contribution requirements. However, the
Company is required to fully fund our pension plan by
December 31, 2014.
Future
Benefit Payments
Estimated future benefit payments are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
Other
|
|
|
Non-Union
|
|
Continuation
|
|
Post-Employment
|
Year Ending December 31,
|
|
Pension Benefits
|
|
Benefits
|
|
Benefits
|
|
2010
|
|
$
|
1,471,334
|
|
|
$
|
540,111
|
|
|
$
|
157,903
|
|
2011
|
|
|
1,494,996
|
|
|
|
539,114
|
|
|
|
165,776
|
|
2012
|
|
|
1,517,288
|
|
|
|
537,940
|
|
|
|
164,588
|
|
2013
|
|
|
1,531,439
|
|
|
|
536,560
|
|
|
|
155,938
|
|
2014
|
|
|
1,539,392
|
|
|
|
534,954
|
|
|
|
144,917
|
|
2015-2019
|
|
|
8,486,499
|
|
|
|
1,967,984
|
|
|
|
613,459
|
|
UNION
PENSION BENEFITS
The Companys Vermont based union employees are
participants in the Steelworkers Pension Trust, a multi-employer
plan. The Company contributes to the plan as required by the
union contract. Contributions recognized in the accompanying
consolidated statements of operations were $317,138 and $359,410
in 2009 and 2008, respectively.
OTHER
SALARY CONTINUATION BENEFITS
In addition to the benefits available under its salary
continuation plan disclosed above, the Company has an agreement
with a certain former employee, who was a former stockholder of
an acquired company that was bought in 1995. The present value
of the future payments under this agreement was $238,199 and
$307,293 as of December 31, 2009 and 2008, respectively.
Total annual payments of $84,000 began in February 2008 and will
continue through February 2012.
The Company also has a non-qualified, unfunded deferred
compensation plan for the benefit of designated key employees
whereby the employee may defer up to $100,000 of their annual
compensation for future distribution. Interest at the rate of
12% per annum is credited on a monthly basis to each
participants account. Payments commence upon retirement of the
participant with various methods of distribution, including
interest only or interest and principal over ten to twenty
years. At December 31, 2009, there are three retired
participants and the total liability is $1,503,700. No active
employees participate in this plan.
The Companys Canadian subsidiary has a deferred
compensation agreement with a former employee. The present value
of the future payments under these agreements was $114,000 and
$103,500 as of December 31, 2009 and 2008. Total annual
payments of $14,350 are expected to continue through 2022.
401(k)
BENEFITS
The Company maintains a 401(k) plan for all eligible,
U.S. employees. Union employees are eligible to join on the
first day of the quarter following their first full year of
service. Non-union employees are eligible to join after six
months of service. The Company makes matching contributions of
up to 4% of the employees salary. The Companys
contributions to the 401(k) plan were $164,429 and $82,005 in
2009 and 2008, respectively.
F-72
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
The Companys Canadian subsidiary sponsors a retirement
plan for all of its salaried, non-union employees and
contributes 13% of each participants compensation to this
plan. The investments in the account are self-directed by each
participant with a range of investment options. Rock of
Ages Canada may, at its discretion, make an additional
annual contribution to a participants account, up to a
maximum aggregate amount of $22,000 and $21,000 CDN per year in
2009 and 2008, respectively (including amounts previously
contributed during the year). The Companys contributions
to this plan were $168,785 CDN and $158,659 CDN in 2009 and
2008, respectively.
CANADIAN
SUPPLEMENTAL RETIREMENT PLAN
Effective in 2007, Rock of Ages Canada established a
supplemental retirement plan for its President, who is also the
chief executive officer of the Company, (Canadian
Supplemental Plan). The Canadian Supplemental Plan is
funded as a retirement compensation arrangement as defined in
the Canadian Income Tax Act. Each year, Rock of Ages Canada
may make a contribution to the Canadian Supplemental Plan equal
to 13% of the Presidents base salary, less any amounts
paid to the Basic Canadian Retirement Plan on his behalf. We
made contributions to the Canadian Supplemental Plan equal to
$11,317 ($12,787 CDN) and $12,960 ($13,787 CDN) in 2009 and
2008, respectively. We may make additional contributions to the
Canadian Supplemental Retirement Plan at our discretion.
|
|
(9)
|
STOCK-BASED
EMPLOYEE COMPENSATION
|
In June 2005, the stockholders approved the Rock of
Ages Corporation 2005 Stock Plan (the 2005
Plan). The 2005 Plan permits awards of stock options
(including both incentive stock options and nonqualified stock
options) and restricted stock. A maximum of 550,000 shares
of Class A common stock may be issued under the 2005 Plan.
The 2005 Plan is administered by the Compensation Committee of
the Board of Directors, which has the authority to determine the
recipients of awards under the 2005 Plan and, subject to the
2005 Plan, the terms and conditions of such awards. The 2005
Plan replaced the Rock of Ages Corporation 1994 Stock Plan
(the 1994 Plan) which expired in November 2004.
Although grants made under the 1994 Plan prior to its expiration
remain outstanding, no further grants may be made under the 1994
Plan.
Options granted have a 10 year term and vest at 20% per
year after the first year.
The following tables set forth stock option activity for the
years ended December 31, 2009 and 2008 and information on
outstanding and exercisable options at December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
Average
|
|
|
|
Number of
|
|
|
Exercise
|
|
|
|
Options
|
|
|
Price
|
|
|
Outstanding, December 31, 2007
|
|
|
196,000
|
|
|
$
|
6.11
|
|
Granted
|
|
|
185,000
|
|
|
|
2.63
|
|
Exercised
|
|
|
|
|
|
|
|
|
Surrendered
|
|
|
(57,000
|
)
|
|
|
6.45
|
|
|
|
|
|
|
|
|
|
|
Outstanding, December 31, 2008
|
|
|
324,000
|
|
|
$
|
4.06
|
|
Granted
|
|
|
20,000
|
|
|
|
2.63
|
|
Exercised
|
|
|
|
|
|
|
|
|
Surrendered
|
|
|
(30,000
|
)
|
|
|
2.91
|
|
|
|
|
|
|
|
|
|
|
Outstanding, December 31, 2009
|
|
|
314,000
|
|
|
$
|
4.08
|
|
|
|
|
|
|
|
|
|
|
Exercisable, December 31, 2009
|
|
|
153,000
|
|
|
$
|
5.29
|
|
|
|
|
|
|
|
|
|
|
Weighted average remaining contractual life
|
|
|
6.2 years
|
|
|
|
|
|
F-73
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
Number of
|
|
|
Average
|
|
|
Remaining
|
|
|
Number of
|
|
|
Average
|
|
Exercise
|
|
|
Options
|
|
|
Exercise
|
|
|
Contractural
|
|
|
Options
|
|
|
Exercise
|
|
Price
|
|
|
Outstanding
|
|
|
Price
|
|
|
Life
|
|
|
Exercisable
|
|
|
Price
|
|
|
$
|
5.98
|
|
|
|
111,500
|
|
|
$
|
5.98
|
|
|
|
2.1 Years
|
|
|
|
111,500
|
|
|
$
|
5.98
|
|
$
|
5.93
|
|
|
|
25,000
|
|
|
$
|
5.93
|
|
|
|
7.6 Years
|
|
|
|
10,000
|
|
|
$
|
5.93
|
|
$
|
2.63
|
|
|
|
157,500
|
|
|
$
|
2.63
|
|
|
|
8.6 Years
|
|
|
|
31,500
|
|
|
$
|
2.63
|
|
$
|
2.63
|
|
|
|
20,000
|
|
|
$
|
2.63
|
|
|
|
9.2 Years
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
314,000
|
|
|
|
|
|
|
|
|
|
|
|
153,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The fair value of each options grant is estimated on the date of
the grant. The per share weighted average fair value of stock
options granted during 2009 was $0.67 on the date of grant using
the Black-Scholes option-pricing model with the following
weighted average assumptions: risk-free interest rate of 2.3%,
dividend yield of 0.00%; expected volatility of 45.59% and an
expected life of 6.5 years. The per share weighted average
fair value of stock options granted during 2008 was $1.22 on the
date of grant using the Black-Scholes option-pricing model with
the following weighted average assumptions: risk-free interest
rate of 3.5%, dividend yield of 0.00%; expected volatility of
40.60% and an expected life of 6.5 years. The fair values
of stock options awards are amortized on a straight line basis
over the requisite service periods of the award, which are
generally the vesting period reduced for actual forfeitures.
The Company selected the assumptions used in the Black-Scholes
pricing model using the following criteria:
|
|
|
|
|
Risk-free interest rate
The Company bases the
risk-free interest rate on implied yield available on a
U.S. Treasury note with a maturity term equal to or
approximating the expected term of the underlying award.
|
|
|
|
Dividend yield
the Company does not intend to
pay dividends on its common stock for the foreseeable future
and, accordingly, uses a dividend yield of zero.
|
|
|
|
Volatility
the expected volatility of the
Companys shares was estimated based upon the historical
volatility of the Companys share price with consideration
given to the expected life of the award.
|
|
|
|
Expected life
The average expected term was
determined by the SEC shortcut approach, as
described in SAB 107, Disclosures about Fair Value of
Financial Instruments, which is the mid-point between the
vesting date and the end of the contractual term.
|
As of December 31, 2009, the total unrecognized
compensation cost related to the stock options granted during
2009, 2008 and 2007 was $11,000 and $163,000, and $38,000,
respectively which is expected to be amortized over the next 2.5
to 4.5 years.
During 2009 and 2008, the Companys average stock price was
less than the average strike price of all vested options,
therefore for options vesting during 2009 and 2008 there was no
intrinsic value.
|
|
(10)
|
RELATED
PARTY TRANSACTIONS
|
The Company is related through common ownership with several
companies. Kurt M. Swenson, the Companys Chairman, and his
brother Kevin C. Swenson, each own approximately 31% of Swenson
Granite LLC (Swenson LLC). Certain other officers
and directors of the Company collectively own approximately 9%
of Swenson LLC. Kurt M. Swenson serves as a non-officer Chairman
of the Board of Swenson LLC, but has no involvement with its
day-to-day
operations. Robert Pope, a holder of more than 5% of the
Class B Common Stock of the Company, is the President and
Chief Executive Officer of Swenson LLC, and including
F-74
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
shares owned by his wife and children, owns 12% of Swenson LLC.
Neither Kurt M. Swenson nor any other officer or director of the
Company, receives salary, bonus, expenses or other compensation
from Swenson LLC, except for any pro rata share of earnings
attributable to their ownership interest therein. Swenson LLC
owns two granite quarries, one in Concord, New Hampshire and
another in Woodbury, Vermont. Both have been owned by Swenson
LLC (or its predecessor Swenson Granite) for more than
40 years. Because of the proximity of the Woodbury quarry
to Barre, Vermont, the Company provides certain maintenance
services and parts to the Woodbury quarry and is reimbursed for
the cost of such services. The Company also purchases blocks
from the Swensons Concord quarry and other products from
Swenson LLC at market prices. Swenson LLC also purchases granite
blocks and slabs and miscellaneous services from the Company.
VIKA, Ltd. (VIKA), a quarry company in which we had
held a 1/3 equity interest since 2002, experienced continuing
operational difficulties leading to reductions in both the
production and sale of Galactic Blue granite blocks. On
June 30, 2009, the Company agreed to sell its one-third
ownership interest in VIKA to the remaining VIKA shareholder for
$170,583 payable in four equal installments of $42,646 due from
July to October 2009. All payments were collected by the end of
the year. In conjunction with this sale the Company entered into
an exclusive distribution agreement with VIKA pursuant to which
the Company has the exclusive worldwide right to sell and
distribute all quarried products of VIKA including slabs and
other finished products for a period of five years. The
investment in VIKA was fully written-off in 2007.
The transactions with related parties, included in the
consolidated statements of operations, are as follows for the
years ended December 31, 2009 and 2008:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Sales of inventory, equipment and services to Swenson LLC
|
|
$
|
58,906
|
|
|
$
|
92,114
|
|
|
|
|
|
|
|
|
|
|
Purchases from Swenson LLC
|
|
$
|
72,779
|
|
|
$
|
44,525
|
|
Purchases from VIKA, Ltd.
|
|
|
553,299
|
|
|
|
406,527
|
|
|
|
|
|
|
|
|
|
|
Total purchases from related parties
|
|
$
|
626,078
|
|
|
$
|
451,052
|
|
|
|
|
|
|
|
|
|
|
Amounts due from related parties as of December 31, 2009
and 2008 are as follows:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Due from Swenson LLC
|
|
$
|
9,444
|
|
|
$
|
13,182
|
|
Due from VIKA, Ltd.
|
|
|
9,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total due from related parties
|
|
|
18,644
|
|
|
|
13,182
|
|
|
|
|
|
|
|
|
|
|
F-75
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
|
|
(11)
|
UNAUDITED
QUARTERLY SUMMARY INFORMATION
|
The following is a summary of unaudited quarterly summary
information for the years ended December 31, 2009 and 2008
(in thousands, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Income
|
|
|
|
Net
|
|
|
Gross
|
|
|
Net Income
|
|
|
(Loss) per Share-
|
|
|
|
Revenues
|
|
|
Profit
|
|
|
(Loss)
|
|
|
Basic and Diluted
|
|
|
2009 Quarters:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
|
|
$
|
5,938
|
|
|
$
|
(121
|
)
|
|
$
|
(2,774
|
)
|
|
$
|
(0.37
|
)
|
Second
|
|
|
14,424
|
|
|
|
4,177
|
|
|
|
1,433
|
|
|
|
0.19
|
|
Third
|
|
|
12,881
|
|
|
|
3,933
|
|
|
|
1,534
|
|
|
|
0.21
|
|
Fourth
|
|
|
12,278
|
|
|
|
3,290
|
|
|
|
609
|
|
|
|
0.08
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
45,521
|
|
|
$
|
11,279
|
|
|
$
|
802
|
|
|
$
|
0.11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 Quarters:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First(3)
|
|
$
|
8,390
|
|
|
$
|
(133
|
)
|
|
$
|
(3,305
|
)
|
|
$
|
(0.45
|
)
|
Second
|
|
|
14,326
|
|
|
|
3,773
|
|
|
|
727
|
|
|
|
0.10
|
|
Third
|
|
|
16,593
|
|
|
|
5,934
|
|
|
|
3,059
|
|
|
|
0.41
|
|
Fourth(1)(2)
|
|
|
16,560
|
|
|
|
1,317
|
|
|
|
(2,676
|
)
|
|
|
(0.36
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
55,869
|
|
|
$
|
10,891
|
|
|
$
|
(2,195
|
)
|
|
$
|
(0.30
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOTE: The Company has historically experienced certain seasonal
patterns, primarily due to weather conditions affecting
operations in Vermont and Canada and the setting of memorials in
cemeteries located in northern regions.
|
|
(1)
|
|
The Company consolidated its headquarters into the manufacturing
plants existing offices and therefore had a change in the
use of its corporate headquarters building. Based on our
analysis we determined that the carrying value of the building
exceeded the net present value which indicated the building was
impaired. We recognized an impairment charge on the asset of
$1,348,000 to reduce the asset to the fair market value during
the fourth quarter of the year ended December 31, 2008. See
note 15.
|
|
(2)
|
|
The Company wrote down second grade or B block
inventory in our Bethel, Salisbury and Gardenia quarries during
the fourth quarter of 2008. This impairment charge totaled
$3,930,000 and is discussed further in note 15.
|
|
(3)
|
|
The loss from discontinued operations during the first quarter
of 2008 totaled $142,000. See note 14.
|
The Company has two classes of common stock outstanding,
Class A and Class B. The shares of Class A common
stock and Class B common stock differ with respect to
voting rights and certain conversion rights, as described below:
Voting Rights
Each share of Class A
common stock entitles the holder to one vote on each matter
submitted to a vote of the Companys stockholders and each
share of Class B common stock entitles the holder to ten
votes on each such matter, in each case including the election
of directors. Neither the Class A common stock nor the
Class B common stock has cumulative voting rights.
Conversion
Class A common stock has no
conversion rights. Class B common stock is convertible into
Class A common stock, in whole or in part, at any time and
from time to time at the option of the holder on the basis of
one share of Class A common stock for each share of
Class B common stock converted. Each share of Class B
common stock will also automatically convert into one share of
Class A common stock upon transfer to any person or entity other
than a Permitted Transferee, as defined in the Companys
Amended and Restated Certificate of Incorporation.
F-76
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
The Company is organized based on the products and services it
offers. The Company currently operates in two segments: quarry
and manufacturing.
The quarry segment extracts granite from the ground and sells it
to the manufacturing segment and to outside manufacturers, as
well as to distributors in Europe and China. There was one
quarry customer that represented approximately 20.8% of accounts
receivable at December 31, 2009 and two quarry customers
that represented approximately 46.1% of accounts receivable at
December 31, 2008. These receivables were backed by
irrevocable letters of credit. This same customer was also our
largest customer in 2009 representing 8.3% of total revenue. In
2008, these same two customers were also our largest customers
and represented approximately 13.4% of total revenue.
The manufacturing segments principal product is granite
memorials and mausoleums used primarily in cemeteries and, to a
lesser extent, specialized granite products for industrial
applications.
The other segment includes unallocated corporate overhead.
Inter-segment revenues are accounted for as if the sales were to
third parties.
The following tables present segment data as of or for the years
ended December 31, 2009 and 2008 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
Manufacturing
|
|
|
Other
|
|
|
Total
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
$
|
23,592
|
|
|
$
|
26,570
|
|
|
$
|
|
|
|
$
|
50,162
|
|
Inter-segment net revenues
|
|
|
(1,910
|
)
|
|
|
(2,731
|
)
|
|
|
|
|
|
|
(4,641
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
21,682
|
|
|
|
23,839
|
|
|
|
|
|
|
|
45,521
|
|
Total gross profit
|
|
|
5,524
|
|
|
|
5,755
|
|
|
|
|
|
|
|
11,279
|
|
Inter-segment gross profit
|
|
|
(512
|
)
|
|
|
512
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
5,012
|
|
|
|
6,267
|
|
|
|
|
|
|
|
11,279
|
|
Selling, general and administrative expenses
|
|
|
2,243
|
|
|
|
3,933
|
|
|
|
3,042
|
|
|
|
9,218
|
|
Effect of pension curtailment
|
|
|
|
|
|
|
|
|
|
|
95
|
|
|
|
95
|
|
Foreign exchange loss
|
|
|
|
|
|
|
|
|
|
|
131
|
|
|
|
131
|
|
Other income, net
|
|
|
|
|
|
|
|
|
|
|
(405
|
)
|
|
|
(405
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
$
|
2,769
|
|
|
$
|
2,334
|
|
|
$
|
(2,863
|
)
|
|
$
|
2,240
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
$
|
31,685
|
|
|
$
|
30,104
|
|
|
$
|
|
|
|
$
|
61,789
|
|
Inter-segment net revenues
|
|
|
(2,999
|
)
|
|
|
(2,921
|
)
|
|
|
|
|
|
|
(5,920
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
28,686
|
|
|
|
27,183
|
|
|
|
|
|
|
|
55,869
|
|
Total gross profit
|
|
|
4,346
|
|
|
|
6,545
|
|
|
|
|
|
|
|
10,891
|
|
Inter-segment gross profit
|
|
|
(923
|
)
|
|
|
923
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
3,423
|
|
|
|
7,468
|
|
|
|
|
|
|
|
10,891
|
|
Selling, general and administrative expenses
|
|
|
2,267
|
|
|
|
4,383
|
|
|
|
3,636
|
|
|
|
10,286
|
|
Impairments
|
|
|
|
|
|
|
|
|
|
|
1,348
|
|
|
|
1,348
|
|
Foreign exchange income
|
|
|
|
|
|
|
|
|
|
|
(27
|
)
|
|
|
(27
|
)
|
Other income, net
|
|
|
|
|
|
|
|
|
|
|
(425
|
)
|
|
|
(425
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
$
|
1,156
|
|
|
$
|
3,085
|
|
|
$
|
(4,532
|
)
|
|
$
|
(291
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-77
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
Total
Assets by Segment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
Manufacturing
|
|
|
Other
|
|
|
Total
|
|
|
2009
|
|
$
|
35,128
|
|
|
$
|
18,549
|
|
|
$
|
4,775
|
|
|
$
|
58,452
|
|
2008
|
|
$
|
39,657
|
|
|
$
|
20,488
|
|
|
$
|
4,298
|
|
|
$
|
64,443
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
Manufacturing
|
|
|
Other
|
|
|
Total
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures
|
|
$
|
1,668
|
|
|
$
|
108
|
|
|
$
|
3
|
|
|
$
|
1,779
|
|
Depreciation, depletion and amortization
|
|
|
1,273
|
|
|
|
1,071
|
|
|
|
153
|
|
|
|
2,498
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures
|
|
$
|
1,062
|
|
|
$
|
2,025
|
|
|
$
|
2
|
|
|
$
|
3,089
|
|
Depreciation, depletion and amortization
|
|
|
1,261
|
|
|
|
918
|
|
|
|
221
|
|
|
|
2,400
|
|
Net revenues by geographic area, attributed to countries based
on where the product is shipped, for the years ended
December 31, 2009 and 2008 are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Net revenues:
|
|
|
|
|
|
|
|
|
China
|
|
$
|
7,006
|
|
|
$
|
10,160
|
|
Italy
|
|
|
415
|
|
|
|
1,137
|
|
Other foreign countries (excluding Canada)
|
|
|
205
|
|
|
|
323
|
|
|
|
|
|
|
|
|
|
|
Total Foreign Revenue (excluding Canada)
|
|
|
7,626
|
|
|
|
11,620
|
|
United States and Canada
|
|
|
37,895
|
|
|
|
44,249
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
$
|
45,521
|
|
|
$
|
55,869
|
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment by geographic area as of
December 31, 2009 and 2008 are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Property, plant and equipment:
|
|
|
|
|
|
|
|
|
United States
|
|
$
|
26,232
|
|
|
$
|
27,144
|
|
Canada
|
|
|
4,327
|
|
|
|
2,854
|
|
|
|
|
|
|
|
|
|
|
Total property, plant and equipment
|
|
$
|
30,559
|
|
|
$
|
29,998
|
|
|
|
|
|
|
|
|
|
|
|
|
(14)
|
DISCONTINUED
OPERATIONS
|
The sale of the retail division closed on January 17, 2008.
The results of operations for this division have been classified
as discontinued. The loss from operations for the retail
division was approximately $142,000 for the year ended
December 31, 2008, including allocated interest expense of
$23,000.
Operating results of the retail division for the year ended
December 31, 2008 were as follows (in thousands):
|
|
|
|
|
Net sales
|
|
$
|
|
|
Cost of goods sold
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
|
|
Selling, general and administrative expenses
|
|
|
(119
|
)
|
|
|
|
|
|
Income (loss) from operations
|
|
|
(119
|
)
|
Interest allocated
|
|
|
(23
|
)
|
|
|
|
|
|
Net loss
|
|
$
|
(142
|
)
|
|
|
|
|
|
F-78
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Notes to
Consolidated Financial
Statements (Continued)
December 31, 2009 and 2008
Due to the consolidation of our corporate headquarters with the
manufacturing plants existing offices in 2008, the Company
had a change in the use of its corporate headquarters building
located at 772 Graniteville Road, which we concluded to be a
triggering event that required an impairment analysis. We
determined that the forecasted undiscounted cash flows related
to the building and land was less than its carrying value. As a
result, we recorded an impairment charge of $1,348,000 to reduce
the carrying value of the building and land to its estimated
fair value. The estimated fair value was determined using a
discounted cash flow analysis and included consultation with an
outside professional real estate appraiser. No assurance can be
given that the underlying estimates and assumptions utilized in
our determination of the new carrying value will materialize as
anticipated. During 2009, this building was listed for sale and
continues to be actively marketed.
|
|
(16)
|
ASSETS
HELD FOR SALE
|
The Company has decided to sell various unproductive assets
including its former corporate headquarters building. These
assets had a carrying value totaling $759,000 and $477,000 in
2009 and 2008, respectively, and have been classified as current
assets held for sale. The estimated sales prices for the assets
are expected to equal or exceed the carrying values therefore no
impairments were recognized in 2009.
On April 17, 2009, Rock of Ages Canada, (ROA
Canada), a wholly owned subsidiary of the Company,
completed the purchase of the real and personal property
comprising the Polycor Stanstead Quarry, located in Stanstead,
Quebec, Canada from Carrieres Polycor, Inc.
(Polycor). The purchase price for the quarry,
building and inventory was $1.3 million CDN. This purchase
was funded by ROA Canadas line of credit with the Royal
Bank of Canada. In connection with the purchase, Polycor entered
into an agreement that limits Polycor from owning or operating a
quarry similar to the Stanstead Gray quarry within fifty
kilometers of Stanstead, Quebec. This agreement also prohibits
Polycor from soliciting ROA Canadas customers for sales of
gray granite. In connection with the purchase, ROA Canada also
entered into a 30 year supply agreement with Polycor,
whereby ROA Canada must supply Polycor with standard blocks not
to exceed 300 cubic meters (or 10,594 cubic feet) a month at ROA
Canadas best price offered to other quarry customers less
a 10% discount on first grade granite if paid within thirty
days. ROA Canada also assumed the remaining three years of
supply agreements with two unrelated granite manufacturers. The
acquisition did not meet the definition of a business and
therefore was accounted for as an asset purchase.
In the first quarter of 2010, Rock of Ages Canada borrowed
$4 million CDN on its term loan and paid dividends totaling
$4 million to Rock of Ages Corporation. The Company
applied $1 million of this dividend to its term loan with
CIT, $900,000 to the revolving line of credit and retained
$1,900,000 for working capital purposes. We also paid $200,000
CDN in Canadian withholding tax. The Company took this action to
take advantage of the historically high exchange rates, the
difference in interest rates under its credit facilities with
the Royal Bank of Canada and the CIT Group, and to take
advantage of current income tax deductions in Canada.
F-79
ROCK OF
AGES CORPORATION AND SUBSIDIARIES
Years
Ended December 31, 2009 and 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Column A
|
|
Column B
|
|
Column C Additions
|
|
Column D
|
|
Column E
|
|
Column F
|
|
|
Balance at
|
|
Decrease
|
|
Charged to
|
|
|
|
|
|
Balance at
|
|
|
Beginning
|
|
Due to
|
|
Costs and
|
|
|
|
|
|
End of
|
Description
|
|
of Period
|
|
Dispositions
|
|
Expenses
|
|
Deductions(1)
|
|
Other(2)
|
|
Period
|
|
|
(In thousands)
|
|
Allowances for doubtful accounts
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
$
|
342
|
|
|
$
|
|
|
|
$
|
93
|
|
|
$
|
127
|
|
|
|
17
|
|
|
$
|
324
|
|
2008
|
|
$
|
260
|
|
|
$
|
|
|
|
$
|
163
|
|
|
$
|
56
|
|
|
|
(25
|
)
|
|
$
|
342
|
|
|
|
|
(1)
|
|
Deductions consist of accounts receivable written off as
uncollectible.
|
|
(2)
|
|
Effect of foreign exchange rate changes.
|
F-80
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
ROCK OF AGES CORPORATION
|
|
|
|
By:
|
/s/ Donald
M. Labonte
|
Donald M. Labonte
President and Chief Executive Officer
Date: March 31, 2010
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons
on behalf of the registrant and in the capacities indicated as
of March 31, 2010.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Donald
M. Labonte
Donald
M. Labonte
|
|
President and Chief Executive Officer
(Principal Executive Officer)
|
|
|
|
/s/ Laura
A. Plude
Laura
A. Plude
|
|
Vice-President and Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
|
|
|
|
/s/ Kurt
M. Swenson
Kurt
M. Swenson
|
|
Chairman of the Board of Directors
|
|
|
|
/s/ Richard
C. Kimball
Richard
C. Kimball
|
|
Director
|
|
|
|
/s/ James
L. Fox
James
L. Fox
|
|
Director
|
|
|
|
/s/ Pamela
G. Sheiffer
Pamela
G. Sheiffer
|
|
Director
|
|
|
|
/s/ Charles
M. Waite
Charles
M. Waite
|
|
Director
|
|
|
|
/s/ Frederick
E. Webster Jr.
Frederick
E. Webster Jr.
|
|
Director
|
F-81
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
2
|
.1
|
|
Agreement and Plan of Merger dated October 21, 2009 by and
between Rock of Ages Corporation (a Delaware corporation) and
Rock of Ages Corporation (Vermont) (incorporated herein by
reference to Exhibit 2.1 to the Companys Current Report on
Form 8-K filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.1
|
|
Articles of Incorporation of the Company (incorporated herein by
reference to Exhibit 3.1 to the Companys Current Report on
Form 8-K filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.2
|
|
By-laws of the Company (incorporated herein by reference to
Exhibit 3.2 to the Companys Current Report on Form 8-K and
filed with the Securities and Exchange Commission on December 8,
2009).
|
|
3
|
.3
|
|
Articles of Merger filed with the Vermont Secretary of State
dated December 7, 2009 (incorporated herein by reference to
Exhibit 3.3 to the Companys Current Report on Form 8-K
filed with the Securities and Exchange Commission on December 8,
2009).
|
|
3
|
.4
|
|
Certificate of Merger filed with the Delaware Secretary of State
dated December 7, 2009 (incorporated herein by reference to
Exhibit 3.4 to the Companys Current Report on Form 8-K
filed with the Securities and Exchange Commission on December 8,
2009).
|
|
4
|
.1
|
|
Specimen Certificate representing the Class A Common Stock
(incorporated herein by reference to Exhibit 4.1 to the
Companys Amendment No. 2 to Registration Statement on Form
8-A (Commission File No. 0-2964) filed with the Securities and
Exchange Commission on December 15, 2009).
|
|
10
|
.1*
|
|
First Amendment and Restatement of Rock of Ages Corporation Key
Employees Deferred Salary Plan dated April 6, 2006 (incorporated
herein by reference to Exhibit 10.1 to the Companys Annual
Report on Form 10-K for the year ended December 31, 2006 and
filed with the Securities and Exchange Commission on April 2,
2007).
|
|
10
|
.2*
|
|
Rock of Ages 2005 Stock Plan (incorporated herein by reference
to Exhibit 10.1 to the Companys Current Report on Form 8-K
and filed with the Securities and Exchange Commission on June
23, 2005).
|
|
10
|
.3*
|
|
Amendment to Salary Continuation Agreement of Kurt M. Swenson
dated April 20, 2006 (incorporated herein by reference to
Exhibit 10.7 to the Companys Quarterly Report on Form 10-Q
for the quarterly period ended July 1, 2006 and filed with the
Securities and Exchange Commission on August 14, 2006).
|
|
10
|
.4*
|
|
Retirement Agreement of Kurt M. Swenson dated April 28, 2008
(incorporated herein by reference to Exhibit 10.1 to the
Companys Current Report on Form 8-K filed with the
Securities and Exchange Commission on April 29, 2008).
|
|
10
|
.5*
|
|
Form of Salary Continuation Agreement (incorporated herein by
reference to Exhibit 10.15 to the Companys Registration
Statement on Form S-1 (Registration No. 333-33685) filed with
the Securities and Exchange Commission on August 15, 1997 and
declared effective on October 20, 1997).
|
|
10
|
.6
|
|
Form of Collective Bargaining Agreement between Rock of Ages
Corporation Quarry Division and the United
Steelworkers of America, AFL_CIO_CLC on behalf of Amalgamated
Local #4 (incorporated by reference to Exhibit 10.4 to the
Companys Quarterly Report on Form 10-Q for the quarterly
period ended July 4, 2009 and filed with the Securities and
Exchange Commission on August 14, 2009).
|
|
10
|
.7
|
|
Form of Collective Bargaining Agreement between Rock of Ages
Corporation Manufacturing Division and the United
Steelworkers of America, AFL_CIO_CLC on behalf of Amalgamated
Local #4 (incorporated by reference to Exhibit 10.5 to the
Companys Quarterly Report on Form 10-Q for the quarterly
period ended July 4, 2009 and filed with the Securities and
Exchange Commission on August 14, 2009).
|
|
10
|
.8
|
|
Form of Collective Bargaining Agreement between Rock of Ages
Corporation Manufacturing Division and the Granite
Cutters Association (incorporated by reference to Exhibit
10.6 to the Companys Quarterly Report on Form 10-Q for the
quarterly period ended July 4, 2009 and filed with the
Securities and Exchange Commission on August 14, 2009).
|
F-82
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
10
|
.9
|
|
Credit Facility dated as of October 26, 2009 between Royal Bank
of Canada and Rock of Ages Canada, Inc.
|
|
10
|
.10
|
|
Supply Agreement dated as of January 11, 2002 by and between
Rock of Ages Corporation and Adams Granite Co., Inc.
(incorporated herein by reference to exhibit 10.15 to the
Companys Annual Report on Form 10-K for the fiscal year
ended December 31, 2001 and filed with the Securities and
Exchange Commission on April 1, 2002).
|
|
10
|
.11
|
|
Amendment to Supply Agreement dated as of January 1, 2004 by and
between Rock of Ages Corporation and Adams Granite Co., Inc.
(Incorporated by reference to Exhibit 10.2 to the Companys
annual Report on Form 10-K for the fiscal year ended December
31, 2006 and filed with the Securities and Exchange Commission
on April 2, 2007).
|
|
10
|
.12
|
|
Amendment No. 2 to Supply Agreement dated as of January 16, 2007
by and between Rock of Ages Corporation and Adams Granite Co.,
Inc. (incorporated by reference to Exhibit 10.21 to the
Companys Annual Report on Form 10-K for the fiscal year
ended December 31, 2006 and filed with the Securities and
Exchange Commission on April 2, 2007).
|
|
10
|
.13
|
|
Stock Purchase Agreement dated as of January 17, 2008 by and
between PKDM Holdings, Inc. and Rock of Ages Corporation
(incorporated herein by reference to Exhibit 2.1 to the
Companys Current Report on Form 8-K and filed with the
Securities and Exchange Commission on January 23, 2008).
|
|
10
|
.14
|
|
Termination Agreement and General Release dated January 17, 2008
by and between Richard M. Urbach and the Company (incorporated
by reference to Exhibit 10.25 to the Companys Annual
Report on Form 10-K for the fiscal year ended December 31, 2007
and filed with the Securities and Exchange Commission on March
31, 2008).
|
|
10
|
.15
|
|
Authorized Retailer Supply and License Agreement dated January
17, 2008 by and between the Company, PKDM Holdings, Inc., North
American Heritage Services, Inc., Keith Monument Company, LLC,
and Sioux Falls Monument Co., LLC (incorporated by reference to
Exhibit 10.26 to the Companys Annual Report on Form 10-K
for the fiscal year ended December 31, 2007 and filed with the
Securities and Exchange Commission on March 31, 2008).
|
|
10
|
.16
|
|
Amendment No. 1 to Supply Agreement dated as of January 16, 2009
(executed and delivered March 10, 2009) by and between Rock
of Ages Corporation and PKDM Holdings, Inc. (incorporated by
reference to Exhibit 10.1 to the Companys Current Report
on Form 8-K filed with the Securities and Exchange Commission on
March 11, 2009).
|
|
10
|
.17
|
|
Amended and Restated Financing Agreement dated October 24, 2007
by and between The CIT Group/Business Credit, Inc. and Carolina
Quarries, Inc., Pennsylvania Granite Corp., Keith Monument
Company, LLC, Rock of Ages Memorials, Inc., Sioux Falls Monument
Co., and the Company (incorporated by reference to Exhibit 10.1
to the Companys Current Report on Form 8-K and filed with
the Securities and Exchange Commission on October 25, 2007).
|
|
10
|
.18
|
|
First Amendment to Amended and Restated Financing Agreement
dated March 30, 2009 by and between The CIT Group/Business
Credit, Inc. and Carolina Quarries, Inc., Pennsylvania Granite
Corp., and the Company (incorporated herein by reference to
Exhibit 10.1 to the Companys Current Report on Form 8-K
and filed with the Securities and Exchange Commission on March
31, 2009).
|
|
10
|
.19
|
|
Letter from The CIT Group/Business Credit, Inc. to Carolina
Quarries, Inc., Pennsylvania Granite Corp., Keith Monument
Company, LLC, Rock of Ages Memorials, Inc., Sioux Falls Monument
Co., and the Company consenting to sale of the Companys
retail division (incorporated by reference to Exhibit 10.28 to
the Companys Annual Report on Form 10-K for the fiscal
year ended December 31, 2007 and filed with the Securities
and Exchange Commission on March 31, 2008).
|
|
10
|
.20
|
|
Consent and Assumption Agreement dated December 7, 2009 by and
among the Company, Rock of Ages Corporation (a Delaware
corporation), The CIT Group/Business Credit, Inc. and Peoples
United Bank (incorporated herein by reference to Exhibit
10.1 to the Companys Current Report on Form 8-K filed with
the Securities and Exchange Commission on December 8, 2009).
|
|
10
|
.21
|
|
Supplemental Retirement Plan for Donald Labonté dated as of
January 1, 2007 (incorporated by reference to Exhibit 10.29 to
the Companys Annual Report on Form 10-K for the fiscal
year ended December 31, 2007 and filed with the Securities and
Exchange Commission on March 31, 2008)
|
F-83
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
10
|
.22
|
|
Employment Agreement of Donald M. Labonte dated as of July 1,
2008 (executed and delivered on August 26, 2008) (incorporated
herein by reference to Exhibit 10.1 to the Companys
Current Report on Form 8-K and filed with the Securities and
Exchange Commission on August 28, 2008)
|
|
10
|
.23
|
|
Asset Purchase Agreement dated April 17, 2009 by and between
Rock of Ages Canada, Inc., a
wholly-owned
subsidiary of the Company, and Carrieres Polycor, Inc., for the
purchase of real and personal property comprising the Polycor
Stanstead Quarry, located in Stanstead, Quebec (incorporated by
reference to Exhibit 10.3 to the Companys Quarterly Report
on Form 10-Q for the quarterly period ending April 4, 2009 and
filed with the Securities and Exchange Commission on May 19,
2009). This exhibit is the original contract written in French.
|
|
10
|
.24
|
|
English translation of the Asset Purchase Agreement dated April
17, 2009 by and between Rock of Ages Canada, Inc., a
wholly-owned subsidiary of the Company, and Carrieres Polycor,
Inc., for the purchase of real and personal property comprising
the Polycor Stanstead Quarry, located in Stanstead, Quebec
(incorporated by reference to Exhibit 10.4 to the Companys
Quarterly Report on Form 10-Q for the quarterly period ending
April 4, 2009 and filed with the Securities and Exchange
Commission on May 19, 2009).
|
|
11
|
.
|
|
Statement re: computation of per share earnings (incorporated
herein by reference to Note (1)(n) of the Companys
consolidated financial statements (filed herewith))
|
|
21
|
.
|
|
Subsidiaries of the Company
|
|
23
|
.1
|
|
Consent of Grant Thornton LLP
|
|
31
|
.1
|
|
Certification of CEO pursuant to Rule 13a-14(a) or Rule
15d-14(a) of the Securities Exchange Act of 1934, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
31
|
.2
|
|
Certification of CFO pursuant to Rule 13a-14(a) or Rule
15d-14(a) of the Securities Exchange Act of 1934, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
32
|
.1
|
|
Certification of CEO pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes Oxley Act of
2002.
|
|
32
|
.2
|
|
Certification of CFO pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes Oxley Act of
2002.
|
|
|
|
*
|
|
This exhibit is a management contract or compensatory plan or
arrangement.
|
|
|
|
Portions of this exhibit have been omitted and filed separately
with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
|
F-84
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form 10-Q
|
|
|
(Mark One)
|
|
|
þ
|
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
|
|
|
For the quarterly period ended
October 2, 2010
|
OR
|
o
|
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
|
|
|
For the transition period
from to
|
Commission file
number: 0-29464
ROCK OF
AGES CORPORATION
(Exact name of Registrant as
Specified in its Charter)
|
|
|
Vermont
|
|
03-0153200
|
(State or other jurisdiction
of
incorporation or organization)
|
|
(I. R. S. Employer
Identification Number)
|
|
|
|
560 Graniteville Road,
Graniteville, Vermont
(Address of principal
executive offices)
|
|
05654
(Zip
Code)
|
(802) 476-3121
(Registrants telephone
number, including area code)
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been
subject to such filing requirements for the past
90 days. Yes
þ
No
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
|
|
|
|
Large
accelerated
filer
o
|
Accelerated
filer
o
|
Non-accelerated
filer
o
|
Smaller
reporting
company
þ
|
(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company
(as defined in
Rule 12b-2
of the
Act.) Yes
o
No
þ
As of November 12, 2010, 4,812,342 shares of
Class A Common Stock and 2,603,721 shares of
Class B Common Stock of the registrant were outstanding.
G-1
ROCK OF
AGES CORPORATION
INDEX
Form 10-Q
for the Quarterly Period
Ended October 2, 2010
G-2
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Quarterly Report on
Form 10-Q,
including Managements Discussion and Analysis of
Financial Condition and Results of Operations in
Part I, Item 2, contains forward-looking statements
that involve risks and uncertainties, as well as assumptions
that, if they never materialize or prove incorrect, could cause
the results of Rock of Ages Corporation (Rock of
Ages or the Company) and events to differ
materially from those contained in such statements. All
statements other than statements of historical fact could be
deemed forward-looking statements, and may include projections
of revenue, gross profit, expenses, earnings or losses from
operations or other financial items; any statements of the
plans, strategies and objectives of the Company or its
management for future operations; any statements regarding
future economic conditions or performance; any statements of
expectation or belief; and any statements of assumptions
underlying any of the foregoing.
The risks, uncertainties and assumptions may include, but are
not limited to, the following:
|
|
|
|
|
our ability to certify adequate internal controls over our
financial reporting;
|
|
|
|
our reliance on our line of credit with the CIT Group to fund
our business operations
and/or
strategy;
|
|
|
|
our ability to maintain compliance with our covenants in our
credit facility;
|
|
|
|
our ability to form and maintain strategic alliances with
cemeteries, funeral homes and memorial retailers;
|
|
|
|
uncertainties involving production recovery, quarry yields
and demand for Rock of Ages dimension stone;
|
|
|
|
the impact of the weak economic conditions and the future
impact of such conditions on the granite and granite memorial
industries, and demand for our products;
|
|
|
|
uncertainties related to the purported class action lawsuit
filed in connection with the acquisition proposal received from
Swenson Granite Company LLC (Swenson) on May 6,
2010 and the purported class action lawsuit filed in connection
with the recently announced merger agreement (the Merger
Agreement) among the Company, Swenson and Granite
Acquisition, LLC (Merger Sub);
|
|
|
|
unanticipated overhead or other expenses, including expenses
in connection with the Merger Agreement and the transactions
contemplated thereby;
|
and other risks and uncertainties described herein,
including, but not limited to the items discussed in Risk
Factors That May Affect Future Results in the
Companys Annual Report on
Form 10-K
for the year ended December 31, 2009, filed on
March 31, 2010 (the 2009 Annual Report) and in
Part II, Item 1A of this report, and that are
otherwise described from time to time in Rock of Ages
reports filed with the Securities and Exchange Commission after
the date of filing of this report.
We assume no obligation to update these forward-looking
statements to reflect actual results or changes in factors or
assumptions affecting such forward-looking statements.
G-3
PART I:
FINANCIAL INFORMATION
|
|
Item 1:
|
Financial
Statements
|
|
|
|
|
|
|
|
|
|
|
|
October 2,
|
|
|
December 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
|
(Unaudited)
|
|
|
(Audited)
|
|
|
|
($ in thousands, except par value amounts)
|
|
|
ASSETS
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
1,163
|
|
|
$
|
1,713
|
|
Trade receivables, net
|
|
|
10,954
|
|
|
|
7,241
|
|
Inventories
|
|
|
14,845
|
|
|
|
15,077
|
|
Income taxes receivable
|
|
|
129
|
|
|
|
429
|
|
Other current assets
|
|
|
1,220
|
|
|
|
1,191
|
|
Assets held for sale
|
|
|
621
|
|
|
|
758
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
28,932
|
|
|
|
26,409
|
|
Property, plant and equipment, net
|
|
|
30,551
|
|
|
|
30,559
|
|
Identified intangible assets, net
|
|
|
458
|
|
|
|
582
|
|
Goodwill
|
|
|
387
|
|
|
|
387
|
|
Other long term assets
|
|
|
235
|
|
|
|
515
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
60,563
|
|
|
$
|
58,452
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Borrowings under line of credit
|
|
$
|
|
|
|
$
|
214
|
|
Current maturities of long-term debt
|
|
|
1,315
|
|
|
|
801
|
|
Trade payables
|
|
|
1,851
|
|
|
|
1,285
|
|
Accrued expenses
|
|
|
2,612
|
|
|
|
1,264
|
|
Salary continuation and other post-employment benefits
|
|
|
702
|
|
|
|
691
|
|
Customer deposits
|
|
|
1,233
|
|
|
|
774
|
|
Income taxes payable
|
|
|
53
|
|
|
|
|
|
Current deferred tax liabilities
|
|
|
|
|
|
|
236
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
7,766
|
|
|
|
5,265
|
|
Long-term debt, excluding current installments
|
|
|
11,660
|
|
|
|
13,361
|
|
Salary continuation liability, net of current portion
|
|
|
5,218
|
|
|
|
5,386
|
|
Accrued pension cost
|
|
|
4,322
|
|
|
|
4,810
|
|
Deferred salary liability
|
|
|
1,504
|
|
|
|
1,504
|
|
Accrued other post-employment benefits, net of current portion
|
|
|
1,603
|
|
|
|
1,622
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
32,073
|
|
|
|
31,948
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
Preferred stock No par value; 2,500,000 shares
authorized; No shares issued or outstanding
|
|
|
|
|
|
|
|
|
Common stock Class A, No par value;
30,000,000 shares authorized; 4,812,342 shares issued
and outstanding as of October 2, 2010 and December 31,
2009
|
|
|
48
|
|
|
|
48
|
|
Common stock Class B, No par value;
15,000,000 shares authorized; 2,603,721 shares issued
and outstanding as of October 2, 2010 and December 31,
2009
|
|
|
26
|
|
|
|
26
|
|
Additional paid-in capital
|
|
|
65,790
|
|
|
|
65,751
|
|
Accumulated deficit
|
|
|
(33,077
|
)
|
|
|
(34,746
|
)
|
Accumulated other comprehensive loss
|
|
|
(4,297
|
)
|
|
|
(4,575
|
)
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
28,490
|
|
|
|
26,504
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity
|
|
$
|
60,563
|
|
|
$
|
58,452
|
|
|
|
|
|
|
|
|
|
|
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
G-4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
October 2,
|
|
|
October 3,
|
|
|
October 2,
|
|
|
October 3,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
(Unaudited)
|
|
|
|
(In thousands except per share data)
|
|
|
Net revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
$
|
8,037
|
|
|
$
|
5,914
|
|
|
$
|
18,298
|
|
|
$
|
15,949
|
|
Manufacturing
|
|
|
7,719
|
|
|
|
6,967
|
|
|
|
19,633
|
|
|
|
17,293
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
|
15,756
|
|
|
|
12,881
|
|
|
|
37,931
|
|
|
|
33,242
|
|
Cost of goods sold:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
5,114
|
|
|
|
4,003
|
|
|
|
13,591
|
|
|
|
12,516
|
|
Manufacturing
|
|
|
5,322
|
|
|
|
4,945
|
|
|
|
14,123
|
|
|
|
12,737
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of goods sold
|
|
|
10,436
|
|
|
|
8,948
|
|
|
|
27,714
|
|
|
|
25,253
|
|
Gross profit:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
2,923
|
|
|
|
1,911
|
|
|
|
4,707
|
|
|
|
3,433
|
|
Manufacturing
|
|
|
2,397
|
|
|
|
2,022
|
|
|
|
5,510
|
|
|
|
4,556
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total gross profit
|
|
|
5,320
|
|
|
|
3,933
|
|
|
|
10,217
|
|
|
|
7,989
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
604
|
|
|
|
503
|
|
|
|
1,694
|
|
|
|
1,633
|
|
Manufacturing
|
|
|
1,133
|
|
|
|
938
|
|
|
|
3,168
|
|
|
|
2,964
|
|
Corporate overhead
|
|
|
622
|
|
|
|
660
|
|
|
|
1,977
|
|
|
|
2,393
|
|
Strategic options and lawsuit expenses
|
|
|
358
|
|
|
|
|
|
|
|
852
|
|
|
|
|
|
Effect of pension curtailment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
95
|
|
Foreign exchange loss (income)
|
|
|
|
|
|
|
|
|
|
|
(83
|
)
|
|
|
|
|
Other income, net
|
|
|
(46
|
)
|
|
|
(76
|
)
|
|
|
(191
|
)
|
|
|
(219
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total selling, general and administrative expenses
|
|
|
2,671
|
|
|
|
2,025
|
|
|
|
7,417
|
|
|
|
6,866
|
|
Income before interest expense and income taxes
|
|
|
2,649
|
|
|
|
1,908
|
|
|
|
2,800
|
|
|
|
1,123
|
|
Interest expense, net
|
|
|
254
|
|
|
|
334
|
|
|
|
827
|
|
|
|
871
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
2,395
|
|
|
|
1,574
|
|
|
|
1,973
|
|
|
|
252
|
|
Income tax expense
|
|
|
195
|
|
|
|
40
|
|
|
|
305
|
|
|
|
59
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
2,200
|
|
|
$
|
1,534
|
|
|
$
|
1,668
|
|
|
$
|
193
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per share basic
|
|
$
|
0.30
|
|
|
$
|
0.21
|
|
|
$
|
0.22
|
|
|
$
|
0.03
|
|
Net income per share diluted
|
|
|
0.30
|
|
|
|
0.21
|
|
|
|
0.22
|
|
|
|
0.03
|
|
Weighted average number of common shares
outstanding basic
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,416
|
|
Weighted average number of common shares
outstanding diluted
|
|
|
7,451
|
|
|
|
7,416
|
|
|
|
7,435
|
|
|
|
7,416
|
|
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
G-5
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
October 2,
|
|
|
October 3,
|
|
|
|
2010
|
|
|
2009
|
|
|
|
(Unaudited)
|
|
|
|
(In thousands)
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
1,668
|
|
|
$
|
193
|
|
Adjustments to reconcile net income to net cash provided by
operating activities:
|
|
|
|
|
|
|
|
|
Gain on sale of assets
|
|
|
(79
|
)
|
|
|
(49
|
)
|
Loss on sale of marketable securities
|
|
|
11
|
|
|
|
|
|
Depreciation, depletion and amortization
|
|
|
1,796
|
|
|
|
1,840
|
|
Deferred taxes
|
|
|
(238
|
)
|
|
|
|
|
Stock compensation expense
|
|
|
40
|
|
|
|
46
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
Trade receivables, net
|
|
|
(3.663
|
)
|
|
|
4,321
|
|
Inventories
|
|
|
356
|
|
|
|
2,004
|
|
Other assets
|
|
|
526
|
|
|
|
(113
|
)
|
Trade payables, accrued expenses and income taxes
|
|
|
1,937
|
|
|
|
(678
|
)
|
Customer deposits
|
|
|
459
|
|
|
|
348
|
|
Salary continuation and pension
|
|
|
(666
|
)
|
|
|
(420
|
)
|
Other liabilities
|
|
|
|
|
|
|
(20
|
)
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
2,147
|
|
|
|
7,472
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
Purchases of other property, plant and equipment
|
|
|
(1,633
|
)
|
|
|
(1,406
|
)
|
Proceeds from sale of assets
|
|
|
246
|
|
|
|
243
|
|
Proceeds from sale of marketable securities
|
|
|
48
|
|
|
|
|
|
Purchase of land and granite reserves
|
|
|
|
|
|
|
(1,428
|
)
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
(1,339
|
)
|
|
|
(2,591
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
Net repayments under lines of credit
|
|
|
(216
|
)
|
|
|
(4,863
|
)
|
Principal borrowings on long-term debt
|
|
|
3,967
|
|
|
|
|
|
Principal payments on long-term debt
|
|
|
(5,198
|
)
|
|
|
(251
|
)
|
|
|
|
|
|
|
|
|
|
Net cash used in financing activities
|
|
|
(1,447
|
)
|
|
|
(5,114
|
)
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate changes on cash
|
|
|
89
|
|
|
|
187
|
|
|
|
|
|
|
|
|
|
|
Net decrease in cash and cash equivalents
|
|
|
(550
|
)
|
|
|
(46
|
)
|
Cash and cash equivalents, beginning of period
|
|
|
1,713
|
|
|
|
888
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of period
|
|
$
|
1,163
|
|
|
$
|
842
|
|
|
|
|
|
|
|
|
|
|
Supplemental cash flow information:
|
|
|
|
|
|
|
|
|
Cash paid during the period for:
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
864
|
|
|
$
|
906
|
|
Income taxes
|
|
|
198
|
|
|
|
274
|
|
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
G-6
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
|
|
(1)
|
Basis of
Presentation
|
The accompanying unaudited consolidated financial statements
have been prepared pursuant to the rules and regulations for
reporting on
Form 10-Q.
Accordingly, certain information and notes required by
accounting principles generally accepted in the United States of
America (U.S. GAAP) for complete financial
statements are not included herein. In the opinion of
management, all adjustments of a normal recurring nature
considered necessary for a fair presentation have been included.
Results of operations for the interim periods are not
necessarily indicative of the results that may be expected for a
full year. The Company has historically experienced certain
seasonal patterns. Generally, our net sales have been highest in
the second or third quarter and lowest in the first quarter of
each year due primarily to weather conditions affecting
operations in Vermont and Canada and the setting of memorials in
cemeteries located in northern regions. For further information,
refer to the consolidated financial statements and notes thereto
included in the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009, filed on
March 31, 2010 (SEC File
No. 000-29464)
(the 2009 Annual Report).
In this report, the terms Company, we,
us, or our mean Rock of
Ages Corporation and all subsidiaries included in our
consolidated financial statements.
The Companys fiscal year ends on December 31 and its
fiscal quarters are the 13-week periods ending on the Saturday
nearest March 31, June 30 and September 30. As a
result, the first and fourth quarter may be more or less than
13 weeks, by 1 to 6 days, which can affect
comparability between periods. The third quarters of 2010 and
2009 each have 91 days.
|
|
(2)
|
Stock-Based
Compensation
|
The following tables set forth stock option activity for the
periods ended October 2, 2010 and October 3, 2009 and
information on outstanding and exercisable options at such dates:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
October 2, 2010
|
|
|
|
|
|
October 3, 2009
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
|
|
|
Average
|
|
|
Aggregate
|
|
|
|
|
|
Average
|
|
|
Aggregate
|
|
|
|
Number of
|
|
|
Exercise
|
|
|
Intrinsic
|
|
|
Number of
|
|
|
Exercise
|
|
|
Intrinsic
|
|
|
|
Options
|
|
|
Price
|
|
|
Value
|
|
|
Options
|
|
|
Price
|
|
|
Value
|
|
|
Outstanding at beginning of period
|
|
|
314,000
|
|
|
$
|
4.08
|
|
|
|
|
|
|
|
324,000
|
|
|
$
|
4.06
|
|
|
|
|
|
Granted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
|
|
|
2.63
|
|
|
|
|
|
Exercised
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Canceled
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(20,000
|
)
|
|
|
3.05
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at end of period
|
|
|
314,000
|
|
|
$
|
4.08
|
|
|
$
|
257,375
|
|
|
|
324,000
|
|
|
$
|
4.04
|
|
|
$
|
97,500
|
|
Exercisable at end of period
|
|
|
193,500
|
|
|
$
|
4.82
|
|
|
$
|
97,150
|
|
|
|
155,000
|
|
|
$
|
5.25
|
|
|
$
|
17,420
|
|
Weighted average remaining contractual life
|
|
|
5.5
|
|
|
|
|
|
|
|
|
|
|
|
6.6 years
|
|
|
|
|
|
|
|
|
|
G-7
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Inventories consist of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
October 2,
|
|
|
December 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
Raw materials
|
|
$
|
9,366
|
|
|
$
|
10,402
|
|
Work-in-process
|
|
|
1,477
|
|
|
|
1,057
|
|
Finished goods and supplies
|
|
|
4,002
|
|
|
|
3,618
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
14,845
|
|
|
$
|
15,077
|
|
|
|
|
|
|
|
|
|
|
The finished goods and supplies inventory includes $1,810,000
and $1,905,000 of retail display inventory as of October 2,
2010 and December 31, 2009, respectively that is located at
various retail locations and is consigned to PKDM Holdings Inc.,
(PKDM) the owner of the Companys former retail
division. PKDM is responsible for purchasing this inventory at
the Companys book value, as it is sold, plus any inventory
remaining after the tenth anniversary of the transaction
(January 2018).
The following is a reconciliation of shares used in calculating
basic and diluted earnings per share (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
October 2,
|
|
|
October 3,
|
|
|
October 2,
|
|
|
October 3,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
Basic weighted average shares
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,416
|
|
|
|
7,416
|
|
Effect of dilutive stock options
|
|
|
35
|
|
|
|
|
|
|
|
19
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted weighted average shares
|
|
|
7,451
|
|
|
|
7,416
|
|
|
|
7,435
|
|
|
|
7,416
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options to purchase 136,500 shares of Class A common
stock were outstanding at October 2, 2010, but were not
included in the computation of diluted earnings per share for
the three and nine months ended October 2, 2010 because
they were out of the money.
Options to purchase 324,000 shares of Class A common
stock were outstanding at October 3, 2009, but were not
included in the computation of diluted earnings per share for
the three and nine months ended October 3, 2009 because
they were out of the money.
The Company is organized based on the products and services it
offers. The Company operates in two segments: quarry and
manufacturing.
The quarry segment extracts granite from the ground and sells it
to either the Companys manufacturing segment or to outside
manufacturers, as well as to distributors in Europe and China.
There were two quarry customers that represented approximately
25.8% of accounts receivable at October 2, 2010 and one
customer that represented approximately 20.8% of accounts
receivable at December 31, 2009. These receivables were
backed by irrevocable letters of credit.
The manufacturing segments principal products are granite
memorials and mausoleums used primarily in cemeteries and, to a
lesser extent, specialized granite products for industrial
applications.
Inter-segment revenues are accounted for as if the sales were to
third parties. These are eliminated on consolidation in the
statements of operations.
G-8
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The following tables present unaudited segment information for
the three and nine month periods ended October 2, 2010 and
October 3, 2009 (in thousands):
Three month period:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unallocated
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
2010
|
|
Quarry
|
|
|
Manufacturing
|
|
|
Overhead
|
|
|
Total
|
|
|
Total net revenues
|
|
$
|
8,700
|
|
|
$
|
7,719
|
|
|
$
|
|
|
|
$
|
16,419
|
|
Inter-segment net revenues
|
|
|
(663
|
)
|
|
|
|
|
|
|
|
|
|
|
(663
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
8,037
|
|
|
|
7,719
|
|
|
|
|
|
|
|
15,756
|
|
Total gross profit
|
|
|
3,135
|
|
|
|
2,185
|
|
|
|
|
|
|
|
5,320
|
|
Inter-segment gross profit
|
|
|
(212
|
)
|
|
|
212
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
2,923
|
|
|
|
2,397
|
|
|
|
|
|
|
|
5,320
|
|
Selling, general and administrative expenses
|
|
|
604
|
|
|
|
1,133
|
|
|
|
622
|
|
|
|
2,359
|
|
Strategic options and lawsuit expenses
|
|
|
|
|
|
|
|
|
|
|
358
|
|
|
|
358
|
|
Other income, net
|
|
|
|
|
|
|
|
|
|
|
(46
|
)
|
|
|
(46
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before interest and taxes
|
|
$
|
2,319
|
|
|
$
|
1,264
|
|
|
$
|
(934
|
)
|
|
$
|
2,649
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unallocated
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
2009
|
|
Quarry
|
|
|
Manufacturing
|
|
|
Overhead
|
|
|
Total
|
|
|
Total net revenues
|
|
$
|
6,486
|
|
|
$
|
6,967
|
|
|
$
|
|
|
|
$
|
13,453
|
|
Inter-segment net revenues
|
|
|
(572
|
)
|
|
|
|
|
|
|
|
|
|
|
(572
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
5,914
|
|
|
|
6,967
|
|
|
|
|
|
|
|
12,881
|
|
Total gross profit
|
|
|
2,074
|
|
|
|
1,859
|
|
|
|
|
|
|
|
3,933
|
|
Inter-segment gross profit
|
|
|
(163
|
)
|
|
|
163
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
1,911
|
|
|
|
2,022
|
|
|
|
|
|
|
|
3,933
|
|
Selling, general and administrative expenses
|
|
|
503
|
|
|
|
938
|
|
|
|
660
|
|
|
|
2,101
|
|
Other income, net
|
|
|
|
|
|
|
|
|
|
|
(76
|
)
|
|
|
(76
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before interest and taxes
|
|
$
|
1,408
|
|
|
$
|
1,084
|
|
|
$
|
(584
|
)
|
|
$
|
1,908
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
G-9
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Nine month period:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unallocated
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
2010
|
|
Quarry
|
|
|
Manufacturing
|
|
|
Overhead
|
|
|
Total
|
|
|
Total net revenues
|
|
$
|
20,398
|
|
|
$
|
19,633
|
|
|
$
|
|
|
|
$
|
40,031
|
|
Inter-segment net revenues
|
|
|
(2,100
|
)
|
|
|
|
|
|
|
|
|
|
|
(2,100
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
18,298
|
|
|
|
19,633
|
|
|
|
|
|
|
|
37,931
|
|
Total gross profit
|
|
|
5,183
|
|
|
|
5,034
|
|
|
|
|
|
|
|
10,217
|
|
Inter-segment gross profit
|
|
|
(476
|
)
|
|
|
476
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
4,707
|
|
|
|
5,510
|
|
|
|
|
|
|
|
10,217
|
|
Selling, general and administrative expenses
|
|
|
1,694
|
|
|
|
3,168
|
|
|
|
1,977
|
|
|
|
6,839
|
|
Strategic options and lawsuit expenses
|
|
|
|
|
|
|
|
|
|
|
852
|
|
|
|
852
|
|
Foreign exchange income
|
|
|
|
|
|
|
|
|
|
|
(83
|
)
|
|
|
(83
|
)
|
Other income, net
|
|
|
|
|
|
|
|
|
|
|
(191
|
)
|
|
|
(191
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before interest and taxes
|
|
$
|
3,013
|
|
|
$
|
2,342
|
|
|
$
|
(2,555
|
)
|
|
$
|
2,800
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unallocated
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
2009
|
|
Quarry
|
|
|
Manufacturing
|
|
|
Overhead
|
|
|
Total
|
|
|
Total net revenues
|
|
$
|
17,175
|
|
|
$
|
17,293
|
|
|
$
|
|
|
|
$
|
34,468
|
|
Inter-segment net revenues
|
|
|
(1,226
|
)
|
|
|
|
|
|
|
|
|
|
|
(1,226
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
15,949
|
|
|
|
17,293
|
|
|
|
|
|
|
|
33,242
|
|
Total gross profit
|
|
|
3,667
|
|
|
|
4,322
|
|
|
|
|
|
|
|
7,989
|
|
Inter-segment gross profit
|
|
|
(234
|
)
|
|
|
234
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
3,433
|
|
|
|
4,556
|
|
|
|
|
|
|
|
7,989
|
|
Selling, general and administrative expenses
|
|
|
1,633
|
|
|
|
2,964
|
|
|
|
2,393
|
|
|
|
6,990
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of pension curtailment
|
|
|
|
|
|
|
|
|
|
|
95
|
|
|
|
95
|
|
Other income, net
|
|
|
|
|
|
|
|
|
|
|
(219
|
)
|
|
|
(219
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before interest and taxes
|
|
$
|
1,800
|
|
|
$
|
1,592
|
|
|
$
|
(2,269
|
)
|
|
$
|
1,123
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues by geographic area, based on shipping destination,
for the three and nine months ended October 2, 2010 and
October 3, 2009 are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
October 2,
|
|
|
October 3,
|
|
|
October 2,
|
|
|
October 3,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
Net revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
China
|
|
$
|
3,332
|
|
|
$
|
1,741
|
|
|
$
|
6,541
|
|
|
$
|
5,177
|
|
Italy
|
|
|
138
|
|
|
|
68
|
|
|
|
580
|
|
|
|
103
|
|
Other foreign countries
|
|
|
19
|
|
|
|
90
|
|
|
|
146
|
|
|
|
191
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,489
|
|
|
|
1,899
|
|
|
|
7,267
|
|
|
|
5,471
|
|
United States and Canada
|
|
|
12,267
|
|
|
|
10,982
|
|
|
|
30,664
|
|
|
|
27,771
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
$
|
15,756
|
|
|
$
|
12,881
|
|
|
$
|
37,931
|
|
|
$
|
33,242
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
G-10
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Net property, plant and equipment by geographic area are as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
October 2,
|
|
|
December 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
United States
|
|
$
|
26,488
|
|
|
$
|
26,232
|
|
Canada
|
|
|
4,063
|
|
|
|
4,327
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
30,551
|
|
|
$
|
30,559
|
|
|
|
|
|
|
|
|
|
|
|
|
(6)
|
Comprehensive
Income (Loss)
|
Accumulated other comprehensive loss consists of the following
components (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign
|
|
|
Unfunded
|
|
|
Investment
|
|
|
Accumulated Other
|
|
|
|
Currency
|
|
|
Pension
|
|
|
Available for
|
|
|
Comprehensive
|
|
|
|
Translation
|
|
|
Liability
|
|
|
Sale
|
|
|
Loss
|
|
|
Balance at December 31, 2009
|
|
$
|
3,028
|
|
|
$
|
(7,569
|
)
|
|
$
|
(34
|
)
|
|
$
|
(4,575
|
)
|
Changes in 2010
|
|
|
252
|
|
|
|
|
|
|
|
26
|
|
|
|
278
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at October 2, 2010
|
|
$
|
3,280
|
|
|
|
(7,569
|
)
|
|
|
(8
|
)
|
|
|
(4,297
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Included in other comprehensive income/loss was a
reclassification adjustment of $235,000 and $397,000 in 2010 and
2009, respectively for the unfunded pension liability.
Comprehensive income (loss) is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
October 2,
|
|
|
October 3,
|
|
|
October 2,
|
|
|
October 3,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
Net income
|
|
$
|
2,200
|
|
|
$
|
1,534
|
|
|
$
|
1,668
|
|
|
$
|
193
|
|
Other comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustment
|
|
|
327
|
|
|
|
752
|
|
|
|
252
|
|
|
|
1,200
|
|
Unrealized gain on investment in available for sale securities
|
|
|
9
|
|
|
|
|
|
|
|
26
|
|
|
|
95
|
|
Pension related adjustment:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Curtailment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,503
|
|
Pension liability adjustment, net of reclassification adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,517
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
$
|
2,536
|
|
|
$
|
2,286
|
|
|
$
|
1,946
|
|
|
$
|
5,508
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
G-11
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
(7)
|
Components
of Net Periodic Benefit Cost
|
Components of net periodic benefit cost for the three months
ended October 2, 2010 and October 3, 2009 are as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
|
|
|
|
|
Non-Union
|
|
|
Continuation
|
|
|
Other Post-
|
|
|
|
Pension Benefits
|
|
|
Benefits
|
|
|
Employment Benefits
|
|
|
|
October 2,
|
|
|
October 3,
|
|
|
October 2,
|
|
|
October 3,
|
|
|
October 2,
|
|
|
October 3,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
Service cost
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
2
|
|
|
$
|
1
|
|
Interest cost
|
|
|
347
|
|
|
|
371
|
|
|
|
78
|
|
|
|
84
|
|
|
|
26
|
|
|
|
26
|
|
Expected return on plan assets
|
|
|
(379
|
)
|
|
|
(302
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of prior service costs
|
|
|
|
|
|
|
|
|
|
|
20
|
|
|
|
28
|
|
|
|
15
|
|
|
|
12
|
|
Amortization of net actuarial loss
|
|
|
43
|
|
|
|
45
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net periodic benefit cost
|
|
$
|
11
|
|
|
$
|
114
|
|
|
$
|
98
|
|
|
$
|
112
|
|
|
$
|
43
|
|
|
$
|
39
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Components of net periodic benefit cost for the nine months
ended October 2, 2010 and October 3, 2009 are as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
|
|
|
|
|
Non-Union
|
|
|
Continuation
|
|
|
Other Post-
|
|
|
|
Pension Benefits
|
|
|
Benefits
|
|
|
Employment Benefits
|
|
|
|
October 2,
|
|
|
October 3,
|
|
|
October 2,
|
|
|
October 3,
|
|
|
October 2,
|
|
|
October 3,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
Service cost
|
|
$
|
|
|
|
$
|
65
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
5
|
|
|
$
|
3
|
|
Interest cost
|
|
|
1,041
|
|
|
|
1,129
|
|
|
|
235
|
|
|
|
252
|
|
|
|
78
|
|
|
|
78
|
|
Expected return on plan assets
|
|
|
(1,137
|
)
|
|
|
(922
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of prior service costs
|
|
|
|
|
|
|
32
|
|
|
|
60
|
|
|
|
84
|
|
|
|
46
|
|
|
|
36
|
|
Amortization of net actuarial loss
|
|
|
129
|
|
|
|
245
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of curtailment
|
|
|
|
|
|
|
95
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net periodic benefit cost
|
|
$
|
33
|
|
|
$
|
644
|
|
|
$
|
295
|
|
|
$
|
336
|
|
|
$
|
129
|
|
|
$
|
117
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effective March 31, 2009, the Companys defined
benefit pension plan was amended by freezing membership and
future benefits in the plan. We recognized additional pension
expense of $95,000 as the effect of the pension curtailment in
the first quarter of 2009. Additionally, the defined benefit
pension plan was revalued as of the date of the curtailment. The
effect of the curtailment and re-measurement resulted in a
decrease of the projected benefit obligation of
$3.8 million and a decrease in the accumulated other
comprehensive loss of $4.0 million.
The Company expects to contribute approximately $850,000 to the
defined benefit pension plan during 2010. A $212,000
contribution was made during the quarter ended October 2,
2010, bringing the total contribution to $423,000 for 2010. We
also contributed $98,000 in January 2010 for the 2009 plan year.
|
|
(8)
|
Recent
Accounting Pronouncements
|
Effective January 1, 2010, the Company adopted new
accounting guidance on fair value measurements and disclosures.
The new guidance requires more robust disclosures about
(1) the different classes of assets and liabilities
measured at fair value, (2) the valuation techniques and
inputs used, (3) the activity in Level 3 fair value
measurements, and (4) the transfers between Levels 1,
2, and 3. The adoption of this new accounting guidance did not
have a material effect on the Companys financial position
or results of operations.
G-12
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
In October 2007, the Company entered into a new credit facility
with its existing lenders, the CIT Group/Business Credit and
Chittenden Trust Company (the Lenders) that
will expire in October 2012 and is secured by substantially all
assets of the Company located in the United States. The credit
facility consists of an acquisition term loan line of credit of
up to $30.0 million and a revolving credit facility of up
to another $20.0 million based on eligible accounts
receivable, inventory and certain fixed assets. Amounts
outstanding were $-0-and $11,206,000 as of October 2, 2010
and $2,565,000 and $13,886,000 as of October 3, 2009 on the
revolving credit facility and the term loan line of credit,
respectively. Availability under the revolving credit facility
was $12.9 million as of October 2, 2010. The credit
facility financing agreement places restrictions on our ability
to, among other things, sell assets, participate in mergers,
incur debt, pay dividends, make capital expenditures, repurchase
stock and make investments or guarantees, without pre-approval
by the Lenders.
Repayment Terms.
As the aggregate unpaid
principal balance of the outstanding term loan is less than
$17,500,000, quarterly principal payments are no longer
required. The principal balance is payable in full on the
expiration date of the facility in October 2012. The Company
does have the right to make voluntary pre-payments on the term
loan. In the first quarter of 2010 our Canadian subsidiary
borrowed $4 million on its term loan. The proceeds, net of
the Canadian withholding tax, were used to pay $2 million
on the term debt with the remainder used for working capital.
During the second and third quarters the company voluntarily
pre-paid an additional $680,000 on its term loan. The revolving
credit facility is paid down daily with all proceeds received by
the Company.
The Company is required to repay its term loan to the extent it
sells certain assets collateralizing the loan. Accordingly, the
Company has classified a portion of the term loan as a current
liability based on the estimated proceeds of fixed assets
classified as held for sale.
Minimum Fixed Charge Coverage Ratio.
The
facility requires the ratio of the sum of earnings before
interest, taxes, depreciation and amortization (EBITDA), to the
sum of income taxes paid, capital expenditures, interest and
scheduled debt repayments be at least 1.10 for the trailing
twelve-month period at the end of each quarter. The Company was
in compliance with this covenant at October 2, 2010.
Total Liabilities to Net Worth Ratio.
The
credit facility also requires that the ratio of our total
liabilities to net worth (the Leverage Ratio) not
exceed 2.25 for the first two quarters of 2009 and 2.00 for the
remainder of the term of the loan. The Leverage Ratio excludes
from the calculation the change in tangible net worth directly
resulting from the Companys compliance with changes in
accounting for pensions of $6.0 million. As of
October 2, 2010, we were in compliance with the Leverage
Ratio covenant.
Canadian Facility.
The Companys Canadian
subsidiary has a line of credit agreement with the Royal Bank of
Canada that is renewable annually. Under the terms of this
agreement, a maximum of $2.5 million CDN may be advanced
based on eligible accounts receivable, eligible inventory, and
tangible fixed assets. The line of credit bears interest at the
Canadian prime rate plus 0.5%. There was $-0- outstanding as of
October 2, 2010 and October 3, 2009, respectively.
The Canadian subsidiary also has a non-revolving term loan with
the Royal Bank of Canada which cannot exceed $4 million CDN
bearing interest at the Canadian prime rate plus 0.95%. There
was $1.5 million and $-0- outstanding as of October 2,
2010 and October 3, 2009, respectively. The effective
interest rate was 3.95% as of October 2, 2010.
The Company files income tax returns in the U.S. federal
jurisdiction and various state and foreign jurisdictions. The
Company is no longer subject to U.S. federal income tax
examinations by tax authorities for
G-13
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
years before 2007 or Canadian tax authorities for years before
2004. However, even though the tax years are closed the tax
attributes may remain open to adjustment. On October 6,
2010 we were notified that the Canada Revenue Agency will be
auditing our income tax return for the 2008 tax year.
Income tax expense in the first half of 2010 and 2009 result
primarily from income at our Canadian subsidiary. Tax expense is
calculated based on the estimated annual effective Canadian tax
rate of 29.9% for 2010 and 2009.
In 2005, the Company adjusted its valuation allowance to fully
reserve for the entire net U.S. deferred tax asset. At each
subsequent period, including at the end of the third quarter of
2010, we reached a similar conclusion, therefore we have
continued to fully reserve for the entire net U.S. deferred
tax asset. We will continue to assess the valuation allowance on
a regular basis and may reduce the valuation allowance if
and/or
when
the Company has taxable income from its U.S. operations.
As of October 2, 2010 and December 31, 2009, the
Company recorded no unrecognized tax benefits or liabilities
related to uncertain tax positions.
|
|
(11)
|
Intangible
Assets and Goodwill
|
We test goodwill for impairment annually and when an event
occurs or circumstances change that would more likely than not
reduce the fair value of a reporting unit below its carrying
value. In the first quarter of 2010, we performed our annual
assessment for the quarry reporting unit. We calculated the fair
value of the quarry reporting unit based on the estimated
expected discounted future cash flows. Based on this analysis we
concluded that there was no indication of impairment as of
April 3, 2010, although there can be no assurance that
goodwill will not become impaired in future periods. We have
reviewed the events of the last two quarters and believe that no
triggering events have occurred that would require an assessment
of impairment.
|
|
(12)
|
Fair
Value Measurements
|
The carrying value of cash and cash equivalents, accounts
receivable and accounts payable approximates fair value because
of the short-term nature of these instruments. Investment
securities are carried at fair value using level one inputs. The
long-term and short-term debt instruments bear interest at
variable rates, which at October 2, 2010 and
December 31, 2009 we estimated to be at market.
The assets in our pension plan are Separate Investment Accounts
and their fair value is based on unit values and not net asset
values. Unit values are calculated based on observable net asset
values of the underlying investment and are considered
Level 2 inputs.
In 2009 the U.S. Mine Safety and Health Administration
(MSHA) issued citations to one of our subsidiaries, Pennsylvania
Granite, asserting various violations and assessed fines
totaling approximately $280,000. The Company disagrees with the
validity of these violations and how they are characterized. We
are appealing the citations. Based on experience of our legal
counsel in settling similar assessments and available historical
MSHA settlement data, we estimate our final exposure will be no
greater than $125,000.
In 2010 MSHA again inspected the Pennsylvania Quarry operations
and issued 25 citations. We were assessed additional fines
totaling $4,575 for these citations. We are contesting these
citations and additional fines. We also received five citations
of a more serious nature for which we have not been assessed
additional fines yet. We do not have an estimate of the amount
of the additional fines but are planning on contesting those
citations as well.
G-14
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
(14)
|
Assets
Held For Sale
|
As of October 2, 2010, the Company held various assets for
sale, which were no longer being used in production, totaling
$621,000 and $758,000 at December 31, 2009. During the
quarter ended July 3, 2010, we sold property located in
Hardwick, Vermont with a book value of $137,000. The remaining
assets have been classified as current assets held for sale. The
estimated sales prices for the assets are expected to exceed the
carrying values therefore no impairments were recognized.
Accordingly, these amounts have been reclassified from the term
loan to current maturities of long term debt since the Company
is required to apply the proceeds from the sale of these assets,
when they are sold, against the term loan.
On October 15, 2010, a special committee of the
Companys independent directors, formed for the purpose of
exploring and considering possible strategic alternatives for
the Company (the Special Committee), and the
Companys Board of Directors, approved the Merger Agreement
by and among Rock of Ages, Swenson and Merger Sub. The Merger
Agreement, dated as of October 18, 2010, provides for the
merger of Merger Sub with and into the Company, with the Company
continuing as the surviving corporation and a wholly owned
subsidiary of Swenson. Merger Sub, which is wholly owned by
Swenson, is a recently-formed Vermont limited liability company
established for the sole purpose of effecting the merger.
If the proposed merger is consummated, shareholders of the
Company (other than shareholders who are members of Swenson to
the extent they have contributed their shares of Company common
stock in exchange for additional shares of membership interest
in Swenson, and other than shareholders to the extent they have
properly asserted dissenters rights in accordance with the
Vermont Business Corporation Act) will be entitled to receive
$5.25 in cash per share of common stock, without interest.
The merger is subject to a number of conditions, including, in
addition to approval by a majority of the votes represented by
the outstanding shares of Class A and Class B common
stock voting together, approval by a majority of the outstanding
shares of the Companys Class A common stock, not
including (in the number of outstanding shares of Class A
common stock, or in the number of shares of Class A common
stock voted in favor of the merger agreement) shares of
Class A common stock owned directly or through a broker or
other nominee by members of Swenson. Although the merger is not
subject to a financing contingency, Swenson is seeking debt
financing in connection with the merger and will require that
financing in order to consummate the merger and related
transactions. Swenson has received an amended and restated
commitment letter from certain lenders, pursuant to which such
lenders have committed, subject to certain specified conditions,
to enter into a definitive financing agreement to provide
funding for, among other things, the merger.
The Company plans to schedule a special meeting of its
shareholders for the purpose of obtaining shareholder approval
of the merger agreement. If the necessary shareholder approval
is obtained, then the merger is expected to be completed as
quickly as possible after the special meeting, subject to
customary conditions. See Item 1A Risk
Factors of this
Form 10-Q.
A purported shareholder of Rock of Ages commenced a purported
class action lawsuit against Rock of Ages, all of the members of
its Board of Directors, certain of its officers, and Swenson,
shortly after Swensons initial proposal, submitted to the
Companys board of directors on May 6, 2010, to
acquire the Company at $4.38 per share of common stock. The
complaint was filed in Vermont Superior Court, Washington County
and subsequently removed to the United States District Court for
the District of Vermont. The plaintiff alleges, among other
things, that the Rock of Ages directors and officers named in
the complaint breached their fiduciary duties in connection with
the Swenson proposal, that Swensons proposed offer is
G-15
ROCK OF
AGES CORPORATION
NOTES TO
UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
inadequate, and that the defendants would benefit from the
proposed transaction to the detriment of Rock of Ages
other shareholders. Plaintiff seeks an order certifying the
proposed class, granting preliminary and permanent injunctive
relief against the consummation of the merger, or if the merger
is consummated, rescinding the merger
and/or
awarding rescissory damages and ordering an accounting, and an
award of costs and attorneys fees. Rock of Ages believes the
complaint is without merit and is engaged in a vigorous defense.
The plaintiff has asserted to the court that he intends to amend
his complaint, but has not indicated when he will do so.
A second purported class action was commenced by a purported
shareholder against Rock of Ages, each of its current directors,
Swenson and Merger Sub on October 27, 2010 in the United
States District Court for the District of Vermont. The plaintiff
alleges, among other things, that the individual defendants
breached their fiduciary duties in approving the previously
announced merger agreement among the Company, Swenson and Merger
Sub, providing for the acquisition of the Company through a
merger of Merger Sub with and into the Company, with the Company
surviving the merger as a wholly owned subsidiary of Swenson.
Plaintiff further alleges that Swenson and Merger Sub aided and
abetted such breaches of duty. Plaintiff seeks an order
certifying the proposed class, granting preliminary and
permanent injunctive relief against the consummation of the
merger, or, if the merger is consummated, rescinding the merger
and/or
awarding rescissory damages and ordering an accounting, and an
award of costs and attorneys fees. Rock of Ages believes the
complaint is without merit and plans a vigorous defense.
Plaintiffs counsel has notified defendants counsel
that they intend to amend their complaint, but have not yet done
so.
In February 2010, the FASB issued ASU
No. 2010-09,
Amendments to Certain Recognition and Disclosure
Requirements
. The standard amends ASC Topic 855 to address
certain implementation issues related to an entities requirement
to perform and disclose subsequent-event procedures. The
standard requires SEC filers to evaluate subsequent events
through the date the financial statements are issued and
exempts SEC filers from disclosing the date through which
subsequent events have been evaluated. The Company evaluates
subsequent events through the date and time of the filing of the
applicable periodic report with the SEC. The Company evaluated
subsequent events through the date of issuance of its Quarterly
Report on
Form 10-Q.
G-16
Overview
Rock of Ages is an integrated quarrier and manufacturer of
granite and products manufactured from granite. During the first
three quarters of 2010, we had two business segments: quarry and
manufacturing. The quarry division sells granite blocks to the
manufacturing division and to outside manufacturers, as well as
to customers outside North America. The manufacturing
divisions principal products are granite memorials and
mausoleums used primarily in cemeteries. It also manufactures
specialized granite products for industrial applications.
Historically, the Companys operations have experienced
certain seasonal patterns. Generally, our net sales have been
highest in the second or third quarter and lowest in the first
quarter of each year due primarily to weather. Cemeteries in
northern areas generally do not accept granite memorials during
winter months when the ground is frozen because they cannot be
properly set under those conditions. In addition, we either
close or reduce the operations of our Vermont and Canadian
quarries during these months because of increased operating
costs attributable to adverse weather conditions. As a result,
we have historically incurred a significant net loss during the
first three months of each calendar year.
In the third quarter of 2010 total revenue increased
$2.9 million or 22% from the same period last year mainly
due to increased export granite sales of our Bethel and
Salisbury quarries and increased sales of industrial products
and monumental sales in our Canadian subsidiary. Total gross
profit increased $1.4 million from the same period last
year. SG&A expenses increased 32% or $646,000 due partly to
costs associated with the consideration of the Swenson proposal,
and the process commenced by the special committee of
independent directors (the Committee) to explore and
consider strategic alternatives for the Company (the
Strategic Process), as well as costs associated with
defending against the shareholder lawsuit described in
Part II, Item 1 of this Report. Total net income
increased by $666,000 over the same period last year.
Critical
Accounting Policies
General
Managements Discussion and Analysis of Financial Condition
and Results of Operations is based upon our Consolidated
Financial Statements, which have been prepared in accordance
with accounting principles generally accepted in the United
States of America (U.S. GAAP). The preparation of these
financial statements requires management to make estimates and
assumptions that affect the reported amounts of assets,
liabilities, revenue and expenses, and related disclosure of
contingent assets and liabilities. Management bases its
estimates on historical experience and on various other
assumptions that are believed to be reasonable under the
circumstances. Actual results may differ from these estimates.
An accounting policy is deemed to be critical if it requires an
accounting estimate to be made based on assumptions about
matters that are highly uncertain at the time the estimate is
made, and if different estimates that reasonably could have been
used, or changes in the accounting estimates that are reasonably
likely to occur periodically, could materially impact the
financial statements.
Our critical accounting policies are as follows: revenue
recognition, impairment of long-lived assets, valuation of
deferred tax assets, accounting for pensions and other
post-employment benefits and valuation of inventory. There have
been no material changes in the Companys critical
accounting policies or changes in the methodology applied by
management for critical accounting policies from what was
previously disclosed in our most recent
Form 10-K.
G-17
Results
of Operations
The following table sets forth certain statement of operations
data as a percentage of total net revenues with the exception of
quarry and manufacturing gross profit and SG&A, which are
shown as a percentage of their respective segments net
revenues.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
October 2, 2010
|
|
|
October 3, 2009
|
|
|
October 2, 2010
|
|
|
October 3, 2009
|
|
|
Net Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
51.0
|
%
|
|
|
45.9
|
%
|
|
|
48.2
|
%
|
|
|
48.0
|
%
|
Manufacturing
|
|
|
49.0
|
%
|
|
|
54.1
|
%
|
|
|
51.8
|
%
|
|
|
52.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
|
100.0
|
%
|
|
|
100.0
|
%
|
|
|
100.0
|
%
|
|
|
100.0
|
%
|
Gross Profit:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
36.4
|
%
|
|
|
32.3
|
%
|
|
|
25.7
|
%
|
|
|
21.5
|
%
|
Manufacturing
|
|
|
31.1
|
%
|
|
|
29.0
|
%
|
|
|
28.1
|
%
|
|
|
26.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total gross profit
|
|
|
33.8
|
%
|
|
|
30.5
|
%
|
|
|
26.9
|
%
|
|
|
24.0
|
%
|
Selling, general and administrative expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarry
|
|
|
7.5
|
%
|
|
|
8.5
|
%
|
|
|
9.3
|
%
|
|
|
10.2
|
%
|
Manufacturing
|
|
|
14.7
|
%
|
|
|
13.5
|
%
|
|
|
16.1
|
%
|
|
|
17.1
|
%
|
Corporate overhead
|
|
|
3.9
|
%
|
|
|
5.1
|
%
|
|
|
5.2
|
%
|
|
|
7.2
|
%
|
Strategic options and lawsuit expenses
|
|
|
2.3
|
%
|
|
|
|
|
|
|
2.2
|
%
|
|
|
|
|
Effect of pension curtailment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.3
|
%
|
Foreign exchange loss (income)
|
|
|
|
|
|
|
|
|
|
|
(0.2
|
)%
|
|
|
|
|
Other income, net
|
|
|
(0.3
|
)%
|
|
|
(0.6
|
)%
|
|
|
(0.5
|
)%
|
|
|
(0.7
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total SG&A expenses
|
|
|
17.0
|
%
|
|
|
15.7
|
%
|
|
|
19.5
|
%
|
|
|
20.6
|
%
|
Income before interest and income taxes
|
|
|
16.8
|
%
|
|
|
14.8
|
%
|
|
|
7.4
|
%
|
|
|
3.4
|
%
|
Interest expense
|
|
|
1.6
|
%
|
|
|
2.6
|
%
|
|
|
2.2
|
%
|
|
|
2.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
15.2
|
%
|
|
|
12.2
|
%
|
|
|
5.2
|
%
|
|
|
0.8
|
%
|
Income tax expense
|
|
|
1.2
|
%
|
|
|
0.3
|
%
|
|
|
0.8
|
%
|
|
|
0.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
14.0
|
%
|
|
|
11.9
|
%
|
|
|
4.4
|
%
|
|
|
0.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three
Months Ended October 2, 2010 Compared to Three Months Ended
October 3, 2009
On a consolidated basis for the three-month period ended
October 2, 2010, compared to the three-month period ended
October 3, 2009, revenue increased $2.9 million or
22%, gross profit increased $1.4 million or 35% and total
operating expenses increased $646,000 or 32%. The Company
reported net income of $2.2 million in the third quarter of
2010 compared to $1.5 million for the third quarter of 2009.
Quarry
Segment Analysis
In the third quarter of 2010 revenues in our quarry division
increased $2.1 million or 36% from the same period last
year mainly due to increased export sales of Bethel White and
Salisbury. The development performed at our quarries earlier in
the year is allowing us to produce higher volumes of quality
granite to meet demand and bring sales back to historical
levels. Gross profit increased $1 million from the same
period last year mainly due to increased sales and higher profit
margins in our Barre and Salisbury quarries. In each of these
quarries the cost per cubic foot has decreased and the gross
profit margins have increased.
G-18
SG&A expenses increased 20% or $101,000 due to an increase
in our incentive accrual and a large repair to a holding pond in
Vermont. Despite the higher SG&A expenses quarry divisional
operating income increased 65% or $910,000 compared to the same
period last year.
Manufacturing
Segment Analysis
Revenue in our manufacturing division was $752,000 higher in the
third quarter of 2010 than the same period last year. The
increase in manufacturing revenue is due to increased shipments
of industrial products and monumental sales from our Canadian
subsidiary, which is partly due to the increase in the exchange
rate.
Gross profit for the third quarter of 2010 was $2,397,000 or 19%
higher than the same period last year. The gross profit margin
increased from 29% to 31%. Even though shipments from our Barre
monumental plant were down from the prior year, the gross profit
margin on those shipments increased from 20% to 22%, due to cost
savings from a smaller workforce.
SG&A costs for the quarter ended October 2, 2010 for
the manufacturing division increased $195,000 or 21% compared to
the quarter ended October 3, 2009. This increase is due to
additional sales personnel, increased incentive expenses at both
the Barre and Beebe plants, increased bad debt accruals for the
industrial products division and the increase in the Canadian
exchange rate. The manufacturing operating income was $180,000
higher than last years third quarter.
Consolidated
Items
Corporate overhead, consisting of operating costs not directly
related to an operating segment, decreased 6%, or $38,000, for
the quarter ended October 2, 2010 compared to the quarter
ended October 3, 2009 due in part to decreased
salaries & benefits, legal expenses and Delaware
franchise tax accruals which were partially offset by increased
bank charges and incentive accrual. In the third quarter of 2010
we incurred $217,000 in costs related to the Strategic Process
and we incurred $141,000 in costs related to the shareholder
lawsuit Described in Part II, Item 1 of this Report.
Other income, which includes rental income from non-operating
properties and miscellaneous reimbursements, was down 39%, or
$30,000, in the third quarter of 2010.
Due to the decreased level of U.S. debt in 2010, net
interest expense decreased $81,000, or 24%, for the quarter
ended October 2, 2010 compared to the quarter ended
October 3, 2009. On March 30, 2009, we reached a
definitive agreement with our lenders on the conditions of the
grant of a waiver from compliance with certain covenants
contained in our Amended and Restated Financing Agreement. In
consideration of the consents and waivers, the unused line fee
went from .25% to .50% and the existing interest rate pricing
grid was changed and interest rates increased approximately 3%.
Despite the higher rates the decreased level of debt and the
decreased interest rate on the Canadian debt, resulted in a
decrease in interest expense.
Income tax expense was $195,000 for the quarter ended
October 2, 2010, compared to $40,000 for the same quarter
in 2009. The tax expense reported in both periods was primarily
due to our Canadian subsidiary and is more in 2010 than 2009 due
to a larger third quarter net income in our Canadian subsidiary
and the increase in the exchange rate. During the third quarter
of both years we continued to fully reserve against all our
U.S. deferred tax assets.
Nine
Months Ended October 2, 2010 Compared to Nine Months Ended
October 3, 2009
On a consolidated basis for the nine-month period ended
October 2, 2010, compared to the nine-month period ended
October 3, 2009, revenue increased $4.7 million or
14%, gross profit increased $2.2 million or 28% and total
operating expenses increased $551,000 or 8%. The Company
reported net income of $1.7 million in the third quarter of
2010 compared to net income of $193,000 for the third quarter of
2009.
G-19
Quarry
Segment Analysis
In the first nine months of 2010 revenues in our quarry division
increased $2.3 million or 15% from the same period last
year mainly due to increased sales in all but one quarry. The
increase in the sales of Stanstead is due in part to the
purchase of the Polycor quarry which was completed in April 2009
and in part due to the increase in the exchange rate. Gross
profit increased $1.3 million from the same period last
year due to increased sales and an overall increase in the
quarry profit margin from 22% to 26% which was mainly due to our
Stanstead, Barre, Salisbury and Gardenia quarries. In each of
these quarries the cost per cubic foot has decreased and the
gross profit margins have increased. In 2010 we had a mild
winter so quarry operations started sooner in 2010 than in 2009
resulting in much better production. Production in both
Salisbury and Gardenia is better in 2010 due to the development
we have done in each of those quarries.
SG&A expenses increased 4% or $61,000 due to increases in
sales travel and convention expenses, a one-time repair to a
holding pond in Vermont and incentive accrual. The increases
were somewhat offset by decreases in pension, office expenses
and legal expense related to the appeal of our property tax
valuations. The quarry divisional operating income increased 67%
or $1.2 million compared to the same period last year.
Manufacturing
Segment Analysis
Revenue in our manufacturing division was 14% or
$2.3 million higher in the first nine months of 2010 than
the same period last year. The increase in manufacturing revenue
is due to increased shipments of industrial products and
monumental shipments from our plant in Canada and the increase
in the exchange rate.
Gross profit for the first nine months of 2010 was $954,000 or
21% higher than the same period last year. The gross profit
margin increased from 26% to 28% due to the larger profit margin
for industrial products.
SG&A costs for the nine-month period ended October 2,
2010 for the manufacturing division increased $204,000, compared
to the nine-month period ended October 3, 2009 mainly due
to increased incentive accrual and the increase in the exchange
rate. The manufacturing operating income was $750,000 higher
than the same period last year.
Consolidated
Items
Corporate overhead, consisting of operating costs not directly
related to an operating segment, decreased 17%, or $416,000, for
the nine-month period ended October 2, 2010 compared to the
nine-month period ended October 3, 2009 due to decreased
pension, legal and accounting expenses and Delaware franchise
tax accruals. The decreases were somewhat offset by increased
bank fees and accruals for incentive payments. In the first nine
months of 2010 we incurred $553,000 in costs related to the
Strategic Process and $299,000 in costs related to the
shareholder lawsuit described in Part II, Item 1 of
this Report.
Other income, which includes rental income from non-operating
properties and miscellaneous reimbursements, decreased by
$28,000 or 13% in the first nine-months compared to the prior
year.
Effective March 31, 2009 the Companys defined benefit
pension plan was amended by freezing membership and future
benefits in the plan. Accordingly, we recognized an additional
pension expense of $95,000 as the effect of the pension
curtailment in the first nine months of 2009. There was no
comparable expense in 2010.
Net interest expense decreased $44,000, or 5%, for the
nine-month period ended October 2, 2010 compared to the
nine-month period ended October 3, 2009. On March 30,
2009, we reached a definitive agreement with our lenders on the
conditions of the grant of a waiver from compliance with certain
covenants contained in our Amended and Restated Financing
Agreement. In consideration of the consents and waivers the
unused line fee went from .25% to .50% and the existing interest
rate pricing grid was changed and interest rates increased
approximately 3%.
Income tax expense was $305,000 for the nine-month period ended
October 2, 2010, compared to $59,000 for the same
nine-month period in 2009. The tax expense reported in both
periods was primarily due to our Canadian subsidiary; is
calculated using an effective rate of 29.9% and is more in 2010
than 2009 due
G-20
to a larger pre-tax income in our Canadian subsidiary and the
increase in the exchange rate. During the first nine months of
both years we continued to fully reserve against all our
U.S. deferred tax assets.
Liquidity
and Capital Resources
Historically, we have met our short-term liquidity requirements
primarily from cash generated by operating activities and
periodic borrowings under the commercial credit facilities
described below. Our $50 million credit facility with our
Lenders was renewed on October 24, 2007 for a term of five
years.
We have historically contributed between $800,000 and
$1.0 million per year to the defined benefit pension plan.
We expect to contribute $850,000 to the defined benefit plan
this year, which, we believe, we will be able to fund from cash
from operations. A $212,000 contribution was made to the plan
during the quarter ended October 2, 2010 for 2010 bringing
total contributions to $423,000 for 2010. We also contributed
$98,000 in January 2010 for the 2009 plan year. See note 7
of the Notes to Unaudited Consolidated Financial Statements.
Our primary need for capital will be to maintain and improve our
quarry and manufacturing facilities. We have approximately
$2 million planned for capital expenditures in 2010 and
have spent $1.6 million to date. We believe we will be able
to fund these capital expenditures either from cash from
operations or borrowings under our credit facilities.
On April 17, 2009, ROA Canada signed an Asset Purchase
Agreement and completed the purchase of the real and personal
property comprising the Polycor Stanstead Quarry, located in
Stanstead, Quebec, Canada from Carrieres Polycor, Inc.
(Polycor). The purchase price for the quarry,
building and inventory was $1.3 million CDN. This purchase
was funded by ROA Canadas line of credit with the Royal
Bank of Canada.
In March 2010, we received $3.8 million, net of the
Canadian withholding taxes, as a dividend from our Canadian
subsidiary. We applied $2 million of this dividend to the
long-term debt and $1.8 million was retained for working
capital needs.
Cash
Flows
At October 2, 2010, we had cash and cash equivalents of
$1.2 million and working capital of $21.2 million,
compared to $1.7 million of cash and cash equivalents and
working capital of $21.1 million at December 31, 2009.
Cash Flows from Operations.
Net cash provided
by operating activities was $2.1 million for the nine-month
period ended October 2, 2010 compared to $7.5 million
in the nine-month period ended October 3, 2009. The
decrease in cash flow from operations is due primarily to the
decrease in the amount of collections on accounts receivable and
the change in inventory in the first nine months of 2010
compared to 2009. The significant decrease in trade receivables
in 2009 was partly due to the high level of receivables as of
December 31, 2008 which was driven by a very large sale at
the end of the year of $1.4 million and the high level of
sales in Q4 2008 in general especially quarry export
sales. Combine this with a very low level of accounts receivable
at the end of 2009 and accounts receivable goes from a source of
funds of $4.3 million in the first nine months of 2009 to a
use of funds of $3.7 million in the first nine months of
2010.
Cash Flows from Investing Activities.
Cash
flows used in investing activities were $1.3 million in the
first nine months of 2010 compared to $2.6 million for the
same period in 2009. In 2010 we spent $1.6 million for
capital expenditures, of which, $819,000 was for quarry
development. We also received $246,000 on sales of assets and
$48,000 from sales of stock in Family Memorials. In 2009, we
purchased property, plant and equipment (PP&E) totaling
$1.4 million and land and granite reserves in Canada for
$1.4 million less $243,000 received on sales of assets.
Cash used in investing activities comes from either borrowings
under our credit facilities or from operations.
Cash Flows from Financing Activities.
Net cash
used in financing activities in the nine-month period ended
October 2, 2010 was $1.4 million which consisted of
$4 million in gross proceeds from long-term debt of our
Canadian subsidiary less $5.2 million paid on long-term
debt in the U.S. and Canada plus $216,000
G-21
paid on the revolving line of credit. This compares to
$5.1 million used in financing activities in the nine-month
period ended October 3, 2009 which consisted of repayments
on the long-term debt of $251,000 and net repayments on the
revolving line of credit of $4.9 million.
CIT
Credit Facility
We have a credit facility with the CIT Group/Business Credit and
Chittenden Trust Company (the Lenders) that is
scheduled to expire in October 2012 and is secured by
substantially all assets of the Company located in the United
States. The credit facility consists of an acquisition term loan
line of credit of up to $30.0 million and a revolving
credit facility of up to another $20.0 million based on
eligible accounts receivable, inventory and certain fixed
assets. Amounts outstanding were $-0-and $11,206,000 as of
October 2, 2010 and $2,565,000 and $13,886,000 as of
October 3, 2009 on the revolving credit facility and the
term loan line of credit, respectively. Availability under the
revolving credit facility was $12.9 million as of
October 2, 2010. The credit facility financing agreement
places restrictions on our ability to, among other things, sell
assets, participate in mergers, incur debt, pay dividends, make
capital expenditures, repurchase stock and make investments or
guarantees, without pre-approval by the Lenders. The credit
facility requires a minimum fixed charge coverage ratio and a
total liabilities to net worth ratio. See footnote No. 9 to
the financial statements for more details.
Interest Rates.
We can elect the interest rate
under the credit facility based on the prime rate or LIBOR for
both the revolving credit facility and the term loan. The
revolving credit facilitys rate is based on Prime plus 3%
or LIBOR plus 4% with a 2% floor for LIBOR. The term loans
rate is based on Prime plus 3.5% or LIBOR plus 4.5% with a 2%
floor for LIBOR.
The rates in effect as of October 2, 2010 were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount
|
|
Formula
|
|
Effective Rate
|
|
Revolving Credit Facility
|
|
$
|
|
|
|
|
Prime + 3.00
|
%
|
|
|
6.25
|
%
|
Term Loan
|
|
$
|
2.2 million
|
|
|
|
Prime + 3.50
|
%
|
|
|
6.75
|
%
|
Term Loan
|
|
$
|
9.0 million
|
|
|
|
Libor + 4.5
|
%
|
|
|
6.50
|
%
|
Canadian
Credit Facility
The Companys Canadian subsidiary has a line of credit
agreement with the Royal Bank of Canada that is renewable
annually. Under the terms of this agreement, a maximum of
$2.5 million CDN may be advanced based on eligible accounts
receivable, eligible inventory, and tangible fixed assets. The
line of credit bears interest at the Canadian prime rate plus
0.5%. There was $-0- outstanding as of October 2, 2010 and
October 3, 2009, respectively.
The Canadian subsidiary also has a non-revolving term loan which
cannot exceed $4 million CDN bearing interest at the
Canadian prime rate plus 0.95%. There was $1.5 million and
$-0- outstanding as of October 2, 2010 and October 3,
2009, respectively. The effective rate was 3.95% as of
October 2, 2010.
Off-Balance
Sheet Arrangements
With the exception of our operating leases, we do not have any
off-balance sheet arrangements, and we do not have, nor do we
engage in, transactions with any special purpose entities.
|
|
Item 3.
|
Quantitative
and Qualitative Disclosures About Market Risk
|
The Company has financial instruments that are subject to
interest rate risk, principally debt obligations under its
credit facilities. Historically, the Company has not experienced
material gains or losses due to interest rate changes. Based on
the October 2, 2010 outstanding borrowings under the credit
facilities of $13 million, the impact of a 1% increase in
the interest rates would be approximately $130,000 a year.
The Company is subject to foreign currency exchange rate risk
primarily from the operations of its Canadian subsidiary. At
October 2, 2010, the Canadian subsidiary had total assets
of $11.3 million exposed to
G-22
changes in the Canadian/U.S. dollar exchange rate. The
impact of the change in the exchange rate in the first nine
months of 2010 was $252,000 due to an increase in the value of
the Canadian dollar.
|
|
Item 4.
|
Controls
and Procedures
|
Disclosure Controls and Procedures.
The
Company, with the participation of our Chief Executive Officer
(CEO) and Chief Financial Officer (CFO),
has evaluated the effectiveness of our disclosure controls and
procedures, as such term is defined under
Rules 13a-15(e)
and
15d-15(e)
promulgated under the Securities Exchange Act of 1934, as
amended as of the end of the period covered by this report.
Based on this evaluation, our CEO and CFO have determined, that
such disclosure controls and procedures are effective to ensure
that information required to be disclosed in our filings under
the Securities Exchange Act of 1934 is recorded, processed,
summarized and reported within the time periods specified in the
Securities and Exchange Commissions rules and forms.
Disclosure controls and procedures include controls and
procedures designed to reasonably ensure that such information
is accumulated and communicated to our management, including our
CEO and CFO, as appropriate to allow timely decisions regarding
required disclosure. Management has concluded that the
consolidated financial statements in this
Form 10-Q
fairly present, in all material respects, the Companys
financial position, results of operations and cash flows for the
periods and dates presented.
Changes in Internal Control Over Financial
Reporting.
There have been no significant changes
in the Companys internal control over financial reporting
identified during the quarter ended October 2, 2010.
PART II OTHER
INFORMATION
|
|
Item 1.
|
Legal
Proceedings
|
We are a party to legal proceedings that arise from time to time
in the ordinary course of our business. While the outcome of
these proceedings cannot be predicted with certainty, we do not
expect them to have a material adverse effect on our business or
financial condition.
The Company carries insurance with coverage that it believes to
be customary in its industry. Although there can be no assurance
that such insurance will be sufficient to protect us against all
contingencies, management believes that its insurance protection
is reasonable in view of the nature and scope of our operations.
The U.S. Mine Safety and Health Administration (MSHA)
issued citations to one of our subsidiaries, Pennsylvania
Granite, asserting various violations and assessed fines
totaling approximately $280,000. The Company disagrees with the
validity of these violations and how they are characterized. We
are appealing the citations. Based on experience of our legal
counsel in settling similar assessments and available historical
MSHA settlement data, we estimate our final exposure will be no
greater than $125,000.
A purported shareholder of Rock of Ages commenced a purported
class action lawsuit against Rock of Ages, all of the members of
its Board of Directors, certain of its officers, and Swenson,
shortly after Swensons initial proposal, submitted to the
Companys board of directors on May 6, 2010, to
acquire the Company at $4.38 per share of common stock. The
complaint was filed in Vermont Superior Court, Washington County
and subsequently removed to the United States District Court for
the District of Vermont. The plaintiff alleges, among other
things, that the Rock of Ages directors and officers named in
the complaint breached their fiduciary duties in connection with
the Swenson proposal, that Swensons proposed offer is
inadequate, and that the defendants would benefit from the
proposed transaction to the detriment of Rock of Ages
other shareholders. Plaintiff seeks an order certifying the
proposed class, granting preliminary and permanent injunctive
relief against the consummation of the merger, or, if the merger
is consummated, rescinding the merger
and/or
awarding rescissory damages and ordering an accounting, and an
award of costs and attorneys fees. Rock of Ages believes the
complaint is without merit and is engaged in a vigorous defense.
The plaintiff has asserted to the court that he intends to amend
his complaint, but has not indicated when he will do so.
G-23
A second purported class action was commenced by a purported
shareholder against Rock of Ages, each of its current directors,
Swenson and Merger Sub on October 27, 2010 in the United
States District Court for the District of Vermont. The plaintiff
alleges, among other things, that the individual defendants
breached their fiduciary duties in approving the previously
announced merger agreement among the Company, Swenson and Merger
Sub, providing for the acquisition of the Company through a
merger of Merger Sub with and into the Company, with the Company
surviving the merger as a wholly owned subsidiary of Swenson.
Plaintiff further alleges that Swenson and Merger Sub aided and
abetted such breaches of duty. Plaintiff seeks an order
certifying the proposed class, granting preliminary and
permanent injunctive relief against the consummation of the
merger, or, if the merger is consummated, rescinding the merger
and/or
awarding rescissory damages and ordering an accounting, and an
award of costs and attorneys fees. Rock of Ages believes the
complaint is without merit and plans a vigorous defense.
Plaintiffs counsel has notified defendants counsel
that they intend to amend their complaint, but have not yet done
so.
Other than the risk factors described below, there have been no
material changes to the risk factors previously disclosed in
Part I, Item 1A of the Companys 2009 Annual
Report.
As described above in this
Form 10-Q,
the Company recently entered into a merger agreement with
Swenson which provides for the acquisition of the Company by
Swenson at a cash price of $5.25 per share; there can be no
assurance that the merger agreement will receive the necessary
shareholder approval required under the merger agreement or that
the merger will be consummated. The Company has incurred, and
will continue to incur, significant fees and expenses in
connection with the proposed merger and related matters whether
or not the merger agreement receives the requisite shareholder
approval of the merger is consummated.
On October 15, 2010, the Companys Board of Directors
and the Special Committee approved a definitive merger agreement
by and among the Company, Swenson and Merger Sub. For further
information, refer to Footnote 15 Merger
Agreement under ROCK OF
AGES CORPORATION NOTES TO UNAUDITED
CONSOLIDATED FINANCIAL STATEMENTS of this
Form 10-Q,
above.
The Company is responsible for payment of the fees and expenses
of the Special Committees financial advisor and counsel,
as well as of its own counsel; such fees and expenses are, and
will continue to be, significant and will adversely impact the
Companys results of operations.
A purported shareholder of Rock of Ages has commenced a
purported class action lawsuit against Rock of Ages, all of the
members of its Board of Directors, certain of its officers, and
Swenson, in connection with Swensons initial proposal,
submitted to the board of directors on May 6, 2010, to
acquire the Company at $4.38 per share of Company common
stock.
A second purported shareholder of Rock of Ages has commenced
another purported class action lawsuit against Rock of Ages, all
of the members of its Board of Directors, Swenson and Merger
Sub, in connection with the approval of the acquisition proposal
by the Rock of Ages Board of Directors on October 15,
2010.
For further information regarding these class action lawsuits,
please refer to Part II, Item 1
Legal Proceedings of this
Form 10-Q,
above.
There can be no assurance that we will prevail in our defense
and even if we do, the legal fees and expenses related to these
lawsuits are, and will likely continue to be significant. To the
extent these legal fees and expenses are not promptly paid or
reimbursed by the Companys director and officer liability
insurance carrier, such fees and expenses will adversely impact
the Companys results of operations.
If we are unable to affirm the effectiveness of our internal
controls over financial reporting in future years, the market
value of our common stock could be adversely affected.
We must report on our internal controls over financial reporting
as of the end of each fiscal quarter and as of the end of each
fiscal year. In 2007 we disclosed material weaknesses in our
internal controls over
G-24
financial reporting in Item 9A(T) Controls and
Procedures of the Annual Report on
Form 10-K.
In 2008 we remediated the weaknesses and accordingly reported no
material weaknesses in our internal controls over financial
reporting as of December 31, 2008 and December 31,
2009. However, we cannot assure you that we will continue to be
able to report that our internal controls over financial
reporting are effective as of December 31, 2010 and
subsequent fiscal year end dates, respectively. In this event,
investors could lose confidence in the reliability of our
financial statements, which could result in a decrease in the
market value of our Class A Common Stock.
|
|
Item 4.
|
Submission
of Matters to a Vote of Security Holders
|
The Company held its annual meeting of stockholders on
August 12, 2010 (the Annual Meeting), to elect
two each Class I, II and III directors and to
ratify the selection of Grant Thornton LLP as the Companys
registered public accounting firm for the 2010 fiscal year.
Kurt M. Swenson and Frederick E. Webster, Jr. were elected
to serve as Class I directors for a one-year term expiring
at the annual meeting of stockholders in 2011 and until their
successors are duly elected and qualified. Pamela G. Sheiffer
and Donald M. Labonte were elected to serve as Class II
directors for a two-year term expiring at the annual meeting of
stockholders in 2012 and until their successors are duly elected
and qualified. James L. Fox and Richard C. Kimball were elected
to serve as Class III directors for a three-year term
expiring at the annual meeting of stockholders in 2013 and until
their successors are duly elected and qualified.
The following table sets forth the number of votes cast for,
against or withheld, as well as the number of abstentions, as to
the election of each of the directors and the ratification of
the selection of Grant Thornton LLP as the Companys
registered public accounting firm for the 2010 fiscal year.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Votes Withheld/
|
|
|
|
|
Votes For
|
|
Votes Against
|
|
Abstentions
|
|
Election of
|
|
|
|
|
|
|
|
|
|
|
|
|
Kurt M. Swenson
|
|
|
25,082,295
|
|
|
|
3,140,777
|
|
|
|
|
|
Frederick E. Webster, Jr.
|
|
|
25,367,994
|
|
|
|
2,855,078
|
|
|
|
|
|
Pamela G. Sheiffer
|
|
|
25,366,194
|
|
|
|
2,856,878
|
|
|
|
|
|
Donald M. Labonte
|
|
|
25,368,494
|
|
|
|
2,854,578
|
|
|
|
|
|
James L. Fox
|
|
|
25,368,394
|
|
|
|
2,854,678
|
|
|
|
|
|
Richard C. Kimball
|
|
|
25,354,933
|
|
|
|
2,868,139
|
|
|
|
|
|
Grant Thornton LLP
|
|
|
28,171,392
|
|
|
|
48,323
|
|
|
|
3,357
|
|
G-25
|
|
|
|
|
Number
|
|
Exhibits
|
|
|
2
|
.1
|
|
Agreement and Plan of Merger dated October 18, 2010 by and
among Swenson Granite Company, LLC, Granite Acquisition, LLC,
and Rock of Ages Corporation (incorporated herein by
reference to Exhibit 2.1 to the Companys Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
October 18, 2010).
|
|
2
|
.2
|
|
Agreement and Plan of Merger dated October 21, 2009 by and
between Rock of Ages Corporation, a Delaware corporation
and Rock of Ages Corporation (Vermont), a Vermont
corporation, (incorporated herein by reference to
Exhibit 2.1 to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.1
|
|
Articles of Incorporation of the Company (incorporated herein by
reference to Exhibit 3.1 to the Companys Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.2
|
|
By-laws of the Company (incorporated herein by reference to
Exhibit 3.2 to the Companys Current Report on
Form 8-K
and filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.3
|
|
Articles of Merger filed with the Vermont Secretary of State
dated December 7, 2009 (incorporated herein by reference to
Exhibit 3.3 to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.4
|
|
Certificate of Merger filed with the Delaware Secretary of State
dated December 7, 2009 (incorporated herein by reference to
Exhibit 3.4 to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
4
|
.1
|
|
Specimen Certificate representing the Class A Common Stock
incorporated by reference to Exhibit 4.1 to the
Companys Amendment No. 2 to Registration Statement on
Form 8-A
(Commission File
No. 0-2964)
filed with the Securities and Exchange Commission on
December 15, 2009.
|
|
31
|
.1
|
|
Certification of CEO pursuant to
Rule 13a-14(a)
or
Rule 15d-14(a)
of the Securities Exchange Act of 1934, as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
31
|
.2
|
|
Certification of CFO pursuant to
Rule 13a-14(a)
or
Rule 15d-14(a)
of the Securities Exchange Act of 1934, as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
32
|
.1
|
|
Certification of CEO pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
|
|
32
|
.2
|
|
Certification of CFO pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
|
G-26
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
ROCK OF AGES CORPORATION
Laura A. Plude
Vice President, Chief Financial Officer
and Treasurer
(Duly Authorized Officer and Principal Financial and Accounting
Officer)
Dated: November 16, 2010
G-27
EXHIBIT INDEX
|
|
|
|
|
Number
|
|
Exhibits
|
|
|
2
|
.1
|
|
Agreement and Plan of Merger dated October 18, 2010 by and
among Swenson Granite Company, LLC, Granite Acquisition, LLC,
and Rock of Ages Corporation (incorporated herein by
reference to Exhibit 2.1 to the Companys Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
October 18, 2010).
|
|
2
|
.2
|
|
Agreement and Plan of Merger dated October 21, 2009 by and
between Rock of Ages Corporation, a Delaware corporation
and Rock of Ages Corporation (Vermont), a Vermont
corporation, (incorporated herein by reference to
Exhibit 2.1 to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.1
|
|
Articles of Incorporation of the Company (incorporated herein by
reference to Exhibit 3.1 to the Companys Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.2
|
|
By-laws of the Company (incorporated herein by reference to
Exhibit 3.2 to the Companys Current Report on
Form 8-K
and filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.3
|
|
Articles of Merger filed with the Vermont Secretary of State
dated December 7, 2009 (incorporated herein by reference to
Exhibit 3.3 to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
3
|
.4
|
|
Certificate of Merger filed with the Delaware Secretary of State
dated December 7, 2009 (incorporated herein by reference to
Exhibit 3.4 to the Companys Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
December 8, 2009).
|
|
4
|
.1
|
|
Specimen Certificate representing the Class A Common Stock
incorporated by reference to Exhibit 4.1 to the
Companys Amendment No. 2 to Registration Statement on
Form 8-A
(Commission File
No. 0-2964)
filed with the Securities and Exchange Commission on
December 15, 2009.
|
|
31
|
.1
|
|
Certification of CEO pursuant to
Rule 13a-14(a)
or
Rule 15d-14(a)
of the Securities Exchange Act of 1934, as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
31
|
.2
|
|
Certification of CFO pursuant to
Rule 13a-14(a)
or
Rule 15d-14(a)
of the Securities Exchange Act of 1934, as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
32
|
.1
|
|
Certification of CEO pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
|
|
32
|
.2
|
|
Certification of CFO pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
|
G-28
PRELIMINARY COPIES CLASS A COMMON STOCK ROCK OF AGES CORPORATION Proxy Solicited by the Board
of Directors Special Meeting of Stockholders [
], 201_ The undersigned hereby appoints each of
Kurt M. Swenson and James L. Fox, and each of them individually, as proxies, each with the full
power to appoint a substitute, to represent and to vote, as designed on the reverse side, all
shares of Class A common stock of Rock of Ages Corporation, a Vermont corporation (the Company),
the undersigned may be entitled to vote, with all the powers undersigned would possess if
personally present, at the special meeting of shareholders to be held on [
], 201_ and any
adjournments or postponements thereof (the Meeting). This proxy revokes all prior proxies given
by the undersigned. This proxy, when properly executed, will be voted in the manner directed herein
by the undersigned shareholder. If no direction is made, this proxy will be voted FOR items 1 and
2. The undersigned acknowledges receipt of the Companys definitive Proxy Statement in connection
with the Meeting and the related Notice of Special Meeting of Shareholders. (continued to be
dated and signed on reverse side)
|
SPECIAL MEETING OF STOCKHOLDERS OF ROCK OF AGES CORPORATION CLASS A COMMON STOCK [
], 201_ PROXY
VOTING INSTRUCTIONS
MAIL
Date, sign and mail your proxy card in the envelope provided as
soon as possible -OR-
TELEPHONE
Call toll-free 1-800-PROXIES (1-800-776-9437) in the
United States or 1-718-921-8500 from foreign countries and follow the instructions. Have your proxy
card available when you call -OR-
INTERNET
Access www.voteproxy.com and follow the
on-screen instructions. Have your proxy card available when you access the web page. -OR-
IN
PERSON
You may vote your shares in person by attending the Meeting. COMPANY NUMBER ACCOUNT
NUMBER
NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIAL:
The Notice of Meeting, proxy
statement and proxy card are available at {www.rockofages.com} ? Please detach along perforated
line and mail in the envelope provided IF you are not voting via telephone or the internet ?
[20330000000000000000 9] [101509] The Board of Directors Recommends a vote FOR both items 1 and 2.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR
BLACK INK AS SHOWN HERE ? To approve the Agreement and Plan of Merger, dated as of October 18,
2010, by and among Rock of Ages Corporation, Swenson Granite Company LLC and Granite Acquisition,
LLC To adjourn the Meeting if necessary to permit further solicitation of proxies in the event
there are not sufficient votes of Class A common stock at the time of the Meeting to satisfy the
condition in the merger agreement that the merger agreement be approved by a majority of the
outstanding shares of our Class A common stock, not including (in the number of outstanding shares
of Class A common stock, or in the number of shares of Class A common stock voted in favor of the
merger agreement) shares of Class A common stock owned directly or through a broker or other
nominee by members of Parent. FOR FOR AGAINST AGAINST ABSTAIN ABSTAIN To change the address on your
account, please check the box at right and indicate your new address in the address space above.
Please note that changes to the registered names(s) on the account may not be submitted via this
method. Signature of Stockholder Date: Signature of Stockholder Date: Note: Please sign exactly as
your name or names appear on this Proxy. When shares are held jointly, each holder should sign.
When signing as executor, administrator, attorney, trustee or guardian, please give full title as
such. If the signer is a corporation, please sign full corporate name by duly authorized officer,
giving full title as such. If signer is a partnership, please sign in partnership name by
authorized person.
|
CLASS B COMMON STOCK ROCK OF AGES CORPORATION Proxy Solicited by the Board of Directors
Special Meeting of Stockholders [
], 201_ The undersigned hereby appoints each of Kurt M. Swenson
and James L. Fox, and each of them individually, as proxies, each with the full power to appoint a
substitute, to represent and to vote, as designed on the reverse side, all shares of Class B common
stock of Rock of Ages Corporation, a Vermont corporation (the Company), the undersigned may be
entitled to vote, with all the powers undersigned would possess if personally present, at the
special meeting of shareholders to be held on [
], 201_ and any adjournments or postponements
thereof (the Meeting). This proxy revokes all prior proxies given by the undersigned. This proxy,
when properly executed, will be voted in the manner directed herein by the undersigned shareholder.
If no direction is made, this proxy will be voted FOR items 1 and 2. The undersigned acknowledges
receipt of the Companys definitive Proxy Statement in connection with the Meeting and the related
Notice of Special Meeting of Shareholders. (continued to be
dated and signed on reverse side)
|
SPECIAL MEETING OF
STOCKHOLDERS OF ROCK OF AGES CORPORATION CLASS B COMMON STOCK [
], 201_ PROXY VOTING INSTRUCTIONS
MAIL
- Date, sign and mail your proxy card in the envelope provided as soon as possible -OR-
TELEPHONE
Call toll-free 1-800-PROXIES (1-800-776-9437) in the United States or
1-718-921-8500 from foreign countries and follow the instructions. Have your proxy card available
when you call -OR-
INTERNET
Access www.voteproxy.com and follow the on-screen
instructions. Have your proxy card available when you access the web page. -OR-
IN PERSON
-
You may vote your shares in person by attending the Meeting. COMPANY NUMBER ACCOUNT NUMBER
NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIAL:
The Notice of Meeting, proxy statement
and proxy card are available at {www.rockofages.com} ? Please detach along perforated line and
mail in the envelope provided IF you are not voting via telephone or the internet ?
[20330000000000000000 9] [101509] The Board of Directors Recommends a vote FOR both items 1 and 2.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR
BLACK INK AS SHOWN HERE To approve the Agreement and Plan of Merger, dated as of October 18, 2010,
by and among Rock of Ages Corporation, Swenson Granite Company LLC and Granite Acquisition, LLC To
adjourn the Meeting if necessary to permit further solicitation of proxies in the event there are
not sufficient votes of Class A common stock at the time of the Meeting to satisfy the condition in
the merger agreement that the merger agreement be approved by a majority of the outstanding shares
of our Class A common stock, not including (in the number of outstanding shares of Class A common
stock, or in the number of shares of Class A common stock voted in favor of the merger agreement)
shares of Class A common stock owned directly or through a broker or other nominee by members of
Parent FOR FOR AGAINST AGAINST ABSTAIN ABSTAIN To change the address on your account, please check
the box at right and indicate your new address in the address space above. Please note that changes
to the registered names(s) on the account may not be submitted via this method. Signature of
Stockholder Date: Signature of Stockholder Date: Note: Please sign exactly as your name or names
appear on this Proxy. When shares are held jointly, each holder should sign. When signing as
executor, administrator, attorney, trustee or guardian, please give full title as such. If the
signer is a corporation, please sign full corporate name by duly authorized officer, giving full
title as such. If signer is a partnership, please sign in partnership name by authorized person.
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