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Exhibit 1
__________ SHARES
ROCK OF AGES CORPORATION
CLASS A COMMON STOCK
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UNDERWRITING AGREEMENT
St. Petersburg, Florida
, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
As Representative of the Several Underwriters
c/o Raymond ▇▇▇▇▇ & Associates, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Rock of Ages Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
an aggregate of _________ shares of Class A Common Stock, $.01 par value per
share (the "Common Stock"), of the Company, to the several Underwriters named in
Schedule I hereto (the "Underwriters"), and certain stockholders of the Company
named in Schedule II hereto (the "Selling Stockholders") propose, subject to the
terms and conditions stated herein, to sell to the Underwriters an aggregate of
_______ shares of the Common Stock (such _________ aggregate shares to be sold
by the Company and the Selling Stockholders are hereinafter referred to as the
"Firm Shares"). In addition, the Company has agreed to sell to the Underwriters,
upon the terms and conditions set forth herein, up to an additional ________
shares (the "Additional Shares") of the Common Stock to cover over-allotments by
the Underwriters, if any. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares."
The Company and the Selling Stockholders wish to confirm as follows their
agreement with you and the other several Underwriters, on whose behalf you are
acting, in connection with the several purchases of the Shares from the Company
and the Selling Stockholders.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-_____), including a
prospectus subject to completion, relating to the Shares. Such registration
statement, as amended at the time when it becomes effective and as thereafter
amended by post-effective amendment, is referred to in this Agreement as the
"Registration Statement." The prospectus in the form included in the
Registration Statement, or, if the prospectus included in the Registration
Statement omits information in reliance upon Rule 430A under the Act and such
information is included in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act or as part of a post-effective amendment to the
Registration Statement after the Registration Statement becomes effective, the
prospectus as so filed, is referred to in this Agreement as the "Prospectus." If
the Company elects to rely on Rule 434 under the
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Act, all references to the Prospectus shall be deemed to include, without
limitation, the form of prospectus and the term sheet contemplated by Rule 434,
taken together, provided to the Underwriters by the Company in reliance on Rule
434 under the Act (the "Rule 434 Prospectus"). If the Company files another
registration statement with the Commission to register a portion of the Shares
pursuant to Rule 462(b) under the Act (the "Rule 462 Registration Statement"),
then any reference to "Registration Statement" herein shall be deemed to include
the registration statement on Form S-1 (File No. 333-_____) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the Act. The prospectus subject to completion in the form included
in the Registration Statement at the time of the initial filing of such
Registration Statement with the Commission and as such prospectus is amended
from time to time until the date of the Prospectus are collectively referred to
in this Agreement as the "Prepricing Prospectus."
2. AGREEMENTS TO SELL AND PURCHASE. The Company and the Selling
Stockholders (in accordance with Schedule II hereof) hereby agree, severally and
not jointly, to sell the Firm Shares to the Underwriters and, upon the basis of
the representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, each Underwriter agrees, severally and not jointly, to purchase
from the Company and the Selling Stockholders at a purchase price of $_____ per
Share (the "purchase price per Share"), the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Shares as adjusted pursuant to Section 11 hereof).
The Company hereby also agrees to sell to the Underwriters, and upon the
basis of the representations, warranties and agreements of the Company and the
Selling Stockholders herein contained and subject to all the terms and
conditions set forth herein, the Underwriters shall have the right for 30 days
from the date of the Prospectus to purchase from the Company up to _______
Additional Shares at the purchase price per Share for the Firm Shares. The
Additional Shares may be purchased solely for the purpose of covering
over-allotments, if any, made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase the number of Additional Shares
(subject to such adjustments as you may determine to avoid fractional shares)
which bears the same proportion to the total number of Additional Shares to be
purchased by the Underwriters as the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto (or such number of Firm Shares
as adjusted pursuant to Section 11 hereof) bears to the total number of Firm
Shares.
3. TERMS OF PUBLIC OFFERING. The Company and the Selling Stockholders
have been advised by you that the Underwriters propose to make a public offering
of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Shares upon the terms set forth in the
Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of the Firm Shares and payment therefor shall be made at the
offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at 10:00 a.m., St. Petersburg, Florida time, on
___________, 1997 (the "Closing Date"). The place of closing for the Firm Shares
and the Closing Date may be varied by agreement between the Representatives and
the Company.
Delivery to the Underwriters of and payment for any Additional Shares to
be purchased by the Underwriters shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at 10:00 a.m.,
St. Petersburg, Florida time, on such date or dates (the "Additional Closing
Date") (which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor earlier than three nor later than ten business
days after the giving of the notice hereinafter referred to) as shall be
specified in a written notice from you on behalf of the Underwriters to the
Company of the Underwriters' determination to purchase a number, specified in
such notice, of Additional Shares. Such notice may be given to the Company by
you at any time within 30 days after the date of the Prospectus. The place of
closing for the Additional Shares and the Additional Closing Date may be varied
by agreement between you and the Company.
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Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 1:00 p.m., St. Petersburg, Florida time, not later
than the second full business day preceding the Closing Date or the Additional
Closing Date, as the case may be. Such certificates shall be made available to
you in St. Petersburg, Florida for inspection and packaging not later than 9:30
a.m., St. Petersburg, Florida time, on the business day immediately preceding
the Closing Date or the Additional Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Additional Closing Date, as the case may be, against payment of the purchase
price therefor by certified or official bank check or checks payable in New York
Clearing House (next day) funds. Payment for the Firm Shares sold by the Company
hereunder shall be delivered by the Representatives to the Company, and payment
for the Shares sold by the Selling Stockholders hereunder shall be delivered by
the Representatives to the "Custodian" (as defined in the last paragraph of
Section 7 hereof).
5. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective, if
it has not already become effective, and will advise you promptly and, if
requested by you, will confirm such advice in writing (i) when the
Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (ii) if Rule 430A under the Act is
employed, when the Prospectus has been timely filed pursuant to Rule
424(b) under the Act, (iii) of any request by the Commission for
amendments or supplements to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the suspension of qualification of
the Shares for offering or sale in any jurisdiction or the initiation of
any proceeding for such purposes and (v) within the period of time
referred to in Section 5(e) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net
worth or results of operations, or of any other event that comes to the
attention of the Company, that results in the Registration Statement or
the Prospectus (as then amended or supplemented) containing an untrue
statement of a material fact or omitting to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in any material respect, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply
with the Act or any other law. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time. If the
Company elects to rely on Rule 434 under the Act, the Company will
provide the Underwriters with copies of the form of Rule 434 Prospectus
(including copies of a term sheet that complies with the requirements of
Rule 434 under the Act), in such number as the Underwriters may
reasonably request, and file with the Commission in accordance with Rule
424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of
the Act before the close of business on the first business day
immediately following the date hereof. If the Company elects not to rely
on Rule 434 under the Act, the Company will provide the Underwriters with
copies of the form of Prospectus, in such number as the Underwriters may
reasonably request, and file with the Commission such Prospectus in
accordance with Rule 424(b) of the Act before the close of business on
the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed
duplicate originals of the Registration Statement as originally filed
with the Commission and of each amendment thereto, including financial
statements and all exhibits thereto, and will also furnish to you,
without charge, such number of conformed copies of the Registration
Statement as originally filed and of each amendment thereto as you may
reasonably request.
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(c) The Company will not file any Rule 462 Registration
Statement or any amendment to the Registration Statement or make any
amendment or supplement to the Prospectus unless (A) you shall have
previously been advised thereof and given a reasonable opportunity to
review such filing, amendment or supplement, and (B) you have not
reasonably objected to such filing, amendment or supplement after being
so advised.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to you, without charge, in such
quantities as you have requested or may hereafter reasonably request,
copies of each form of the Prepricing Prospectus. The Company consents to
the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are
offered by the several Underwriters and by dealers, prior to the date of
the Prospectus, of each Prepricing Prospectus so furnished by the
Company.
(e) As soon after the execution and delivery of this Agreement
as is practicable and thereafter from time to time for such period as in
the reasonable opinion of counsel for the Underwriters a prospectus is
required by the Act to be delivered in connection with sales by any
Underwriter or a dealer, and for so long a period as you may request for
the distribution of the Shares, the Company will deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as they may
reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several Underwriters
and by all dealers to whom Shares may be sold, both in connection with
the offering and sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer. If at any time prior
to the later of (i) the completion of the distribution of the Shares
pursuant to the offering contemplated by the Registration Statement or
(ii) the expiration of prospectus delivery requirements with respect to
the Shares under Section 4(3) of the Act and Rule 174 thereunder, any
event shall occur that in the judgment of the Company or in the opinion
of counsel for the Underwriters is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus to comply with the Act or
any other law, the Company will forthwith prepare and, subject to
Sections 5(a) and 5(c) hereof, file with the Commission and use its best
efforts to cause to become effective as promptly as possible an
appropriate supplement or amendment thereto, and will furnish to each
Underwriter who has previously requested Prospectuses, without charge, a
reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
reasonably designate and will file such consents to service of process or
other documents as may be reasonably necessary in order to effect and
maintain such registration or qualification for so long as required to
complete the distribution of the Shares; provided that in no event shall
the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to general service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject. In the event that the qualification of
the Shares in any jurisdiction is suspended, the Company shall so advise
you promptly in writing.
(g) The Company will make generally available to its security
holders a consolidated earnings statement (in form complying with the
provisions of Rule 158), which need not be audited, covering a
twelve-month period commencing after the effective date of the
Registration Statement and the Rule 462 Registration Statement, if any,
and ending not later than 15 months thereafter, as soon as
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practicable after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During the period ending five years from the date hereof,
the Company will furnish to you and, upon your request, to each of the
other Underwriters, (i) as soon as available, a copy of each proxy
statement, quarterly or annual report or other report of the Company
mailed to stockholders or filed with the Commission, the National
Association of Securities Dealers, Inc. (the "NASD") or The Nasdaq Stock
Market or any securities exchange and (ii) from time to time such other
information concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provision hereof (except pursuant to a
termination under Section 11 hereof) or if this Agreement shall be
terminated by the Underwriters because of any inability, failure or
refusal on the part of the Company or the Selling Stockholders to perform
in all material respects any agreement herein or to comply in all
material respects with any of the terms or provisions hereof or to
fulfill in all material respects any of the conditions of this Agreement,
the Company agrees to reimburse you and the other Underwriters for all
out-of-pocket expenses (including travel expenses and reasonable fees and
expenses of counsel for the Underwriters but excluding wages and salaries
paid by you) reasonably incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder in accordance in all material
respects with the statements under the caption "Use of Proceeds" in the
Prospectus.
(k) If Rule 430A under the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act.
(l) For a period of 180 days after the date of the Prospectus
first filed pursuant to Rule 424(b) under the Act, without your prior
written consent, the Company will not, directly or indirectly, issue,
sell, offer or contract to sell or otherwise dispose of or transfer any
shares of Common Stock or securities convertible into or exchangeable or
exercisable for shares of Common Stock (collectively, "Company
Securities") or any rights to purchase Company Securities, except (i) to
the Underwriters pursuant to this Agreement, (ii) pursuant to and in
accordance with the Company's 1994 Stock Option Plan referenced in the
Registration Statement under the caption "Management -- Incentive Plans,"
(iii) in connection with the ▇▇▇▇▇ Acquisition and the C&C Acquisition
(each as defined in the Registration Statement), or (iv) up to ___ shares
of Common Stock issued no earlier than 30 days after the date hereof and
only in connection with the Company's acquisition of businesses, the
owners of which have agreed in writing with the Representative not to
directly or indirectly sell, offer or contract to sell or otherwise
dispose of or transfer any Company Securities until the expiration of 180
days after the Prospectus was first filed pursuant to Rule 424(b).
(m) Prior to the Closing Date or the Additional Closing Date,
as the case may be, the Company will furnish to you, as promptly as
possible, copies of any unaudited interim consolidated financial
statements of the Company and its subsidiaries for any period subsequent
to the periods covered by the financial statements appearing in the
Prospectus.
(n) The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
(o) The Company will not at any time, directly or indirectly
take any action designed, or which might reasonably be expected to cause
or result in, or which will constitute, stabilization or
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manipulation of the price of the shares of Common Stock to facilitate the
sale or resale of any of the Shares.
(p) The Company will use its best efforts to qualify or
register its Common Stock for sale in non-issuer transactions under (or
obtain exemptions from the application of) the Blue Sky laws of each
state where necessary to permit market making transactions and secondary
trading, and will comply with such Blue Sky laws and will continue such
qualifications, registrations and exemptions in effect for a period of
five years after the date hereof.
(q) The Company will timely file with the National Association
of Securities Dealers Automated Quotation National Market System
("NASDAQ/NMS") all documents and notices required by the NASDAQ/NMS of
companies that have or will issue securities that are traded in the
over-the-counter market and quotations for which are reported by the
NASDAQ/NMS.
(r) The Company will file with the Commission such reports on
Form SR as may be required pursuant to Rule 463 under the Act.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter on the date hereof, and shall be
deemed to represent and warrant to each Underwriter on the Closing Date and the
Additional Closing Date, that:
(a) The Company satisfies all of the requirements of the Act
for use of Form S-1 for the offering of Shares contemplated hereby. Each
Prepricing Prospectus included as part of the Registration Statement as
originally filed or as part of any amendment or supplement thereto, or
filed pursuant to Rule 424(a) under the Act, complied when so filed in
all material respects with the provisions of the Act, except that this
representation and warranty does not apply to statements in or omissions
from such Prepricing Prospectus (or any amendment or supplement thereto)
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein. The Commission has not
issued any order preventing or suspending the use of any Prepricing
Prospectus.
(b) The Registration Statement (including any Rule 462
Registration Statement), in the form in which it becomes effective and
also in such form as it may be when any post-effective amendment thereto
shall become effective, and the Prospectus, and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) under
the Act, will comply in all material respects with the provisions of the
Act and will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except that this representation and warranty does not apply to statements
in or omissions from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in
writing by or on behalf of any Underwriter through you expressly for use
therein.
(c) The capitalization of the Company is and will be as set
forth in the Prospectus as of the date set forth therein. All the
outstanding shares of Common Stock of the Company have been, and as of
the Closing Date will be, duly authorized and validly issued, are fully
paid and nonassessable and are free of any preemptive or similar rights;
except as set forth in the Prospectus, the Company is not a party to or
bound by any outstanding options, warrants, or similar rights to
subscribe for, or contractual obligations to issue, sell, transfer or
acquire, any of its capital stock or any securities convertible into or
exchangeable for any of such capital stock; the Shares to be issued and
sold to the Underwriters by the Company hereunder have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms, claims, encumbrances, or
defects in title; hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights; the capital
stock of the Company
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conforms to the description thereof in the Registration Statement and the
Prospectus (or any amendment or supplement thereto). The form of
certificates for the Shares conform to the requirements of the Delaware
General Corporation Law (the "DGCL").
(d) Each of the Company and its subsidiaries is a corporation
duly incorporated and validly existing as a corporation in good standing
under the laws of the state of its incorporation with full power and
authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify does
not have a material adverse effect on the condition (financial or other),
business, properties, net worth, results of operations or prospects of
the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) The issued shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and are owned by the Company, directly or indirectly,
free and clear of any security interests, liens, encumbrances, equities
or claims. The Company does not have any subsidiaries and does not own a
material interest in or control, directly or indirectly, any other
corporation, partnership, joint venture, association, trust or other
business organization, except those subsidiaries set forth in Exhibit 21
to the Registration Statement.
(f) There is no legal or governmental proceeding, action, suit,
inquiry, proceeding or investigation pending by or before any court or
governmental or other regulatory or administrative agency or commission
or, to the best knowledge of the Company, threatened, against the Company
or its subsidiaries or to which the Company or its subsidiaries or any of
their properties are subject, (i) that is required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) and are not described as required by the Act; or (ii) which
might individually or in the aggregate prevent the transactions
contemplated by this Agreement. There are no agreements, contracts,
indentures, leases or other instruments that are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the Act. All
such contracts to which the Company or any of its subsidiaries is a party
have been duly authorized, executed and delivered by the Company or the
applicable subsidiary, constitute valid and binding agreements of the
Company or the applicable subsidiary and are enforceable against the
Company or the applicable subsidiary in accordance with the terms
thereof, and neither the Company or the applicable subsidiary, nor to the
best of the Company's knowledge, any other party, is in breach of or
default in any material respect under any of such contracts.
(g) Neither the Company nor any of its subsidiaries is (i) in
violation of its articles of incorporation or bylaws; (ii) in violation
of any law, ordinance, administrative or governmental rule or regulation
applicable to the Company or any of its subsidiaries or of any decree of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries, except to the extent such violation
or violations would not have a Material Adverse Effect or in default in
the performance of any obligation, agreement or condition contained in
(i) any bond, debenture, note or any other evidence of indebtedness, or
(ii) any agreement, indenture, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which any of their
properties may be bound (except to the extent to any default referred to
in this clause (iii) would not have a Material Adverse Effect); and there
does not exist any state of facts which constitutes an event of default
on the part of the Company or any of its subsidiaries as defined in such
documents or which, with notice or lapse of time or both, would
constitute such an event of default.
(h) The Company's execution and delivery of this Agreement and
the performance by the Company of its obligations under this Agreement
has been duly and validly authorized by the Company,
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and this Agreement has been duly executed and delivered by the Company,
and this Agreement constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally or by general equitable principles, whether considered in a
proceeding at law or in equity, and, rights to indemnification and
contribution hereunder may be limited by federal or state securities laws
or the public policy underlying such laws.
(i) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby or
thereby (i) requires any consent, approval, authorization or other order
of or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
(except such as may be required for the registration of the Shares under
the Act and compliance with the securities or Blue Sky laws of various
jurisdictions, all of which will be, or have been, effected in accordance
with this Agreement and except for the NASD's clearance of the
underwriting terms of the offering contemplated hereby as required under
the NASD's Rules of Fair Practice), (ii) conflicts with or will conflict
with or constitutes or will constitute a breach of, or a default under,
the articles of incorporation or bylaws of the Company or any agreement,
indenture, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which any of its properties may be bound,
(iii) violates any statute, law, regulation, ruling, filing, judgment,
injunction, order or decree applicable to the Company or any of its
subsidiaries or any of their properties, or (iv) results in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company.
(j) No holder of securities of the Company has rights to the
registration of any securities of the Company as a result of or in
connection with the filing of the Registration Statement or the
consummation of the transactions contemplated hereby that have not been
satisfied or heretofore waived in writing.
(k) KPMG Peat Marwick LLP and Green & Co., the certified public
accountants who have certified the financial statements filed as part of
the Registration Statement and the Prospectus (or any amendment or
supplement thereto), are independent public accountants as required by
the Act.
(l) The financial statements and pro forma financial
information, together with related schedules and notes, included in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), present fairly the financial position, results of
operations and changes in financial position of the Company and its
consolidated subsidiaries on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set
forth in the Registration Statement and Prospectus (and any amendment or
supplement thereto) is, in all material respects, accurately presented
and, to the extent applicable prepared on a basis consistent with such
financial statements and the books and records of the Company. No other
financial statements or schedules are required to be included in the
Registration Statement.
(m) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto to the extent
required), subsequent to the respective dates as of which such
information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), (i) neither the Company nor any of
its subsidiaries has incurred any liabilities or obligations, indirect,
direct or contingent, or entered into any transaction which is not in the
ordinary course of business and is material to the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its
business or properties from fire, flood,
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windstorm, accident or other calamity, whether or not covered by
insurance; (iii) neither the Company nor any of its subsidiaries has paid
or declared any dividends or other distributions with respect to its
capital stock, other than pursuant to the Reorganization (as defined in
the Prospectus) and the Company is not in default under the terms of any
class of capital stock of the Company or any outstanding debt
obligations; (iv) there has not been any change in the authorized or
outstanding capital stock of the Company or any material change in the
indebtedness of the Company (other than in the ordinary course of
business); and (v) there has not been any change which has, or any
development involving or which may reasonably be expected to involve a
potential future change which would have, a Material Adverse Effect.
(n) Each of the Company and its subsidiaries has, or upon the
consummation of the C&C Acquisition and the ▇▇▇▇▇ Acquisition (as such
terms are defined in the Prospectus) will have, good and marketable title
to all property (real and personal) described in the Prospectus as being
owned by it, free and clear of all liens, claims, security interests or
other encumbrances except (i) such as are described in the financial
statements included in, or elsewhere in, the Prospectus or (ii) such as
are not materially burdensome and do not interfere in any material
respect with the use of the property or the conduct of the business of
the Company. All property (real and personal) held under lease by the
Company and its subsidiaries is held by it under valid, subsisting and
enforceable leases with only such exceptions as in the aggregate are not
materially burdensome and do not interfere in any material respect with
the conduct of the business of the Company.
(o) The Company has not distributed and will not distribute any
offering material in connection with the offering and sale of the Shares
other than the Prepricing Prospectus, the Prospectus, or other offering
material, if any, as permitted by the Act.
(p) The Company has not taken, directly or indirectly, any
action which constituted, or any action designed, or which might
reasonably be expected to cause or result in or constitute, under the Act
or otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares or for any
other purpose.
(q) The Company is not an "investment company," an "affiliated
person" of, or "promoter" or "principal underwriter" for an investment
company within the meaning of the Investment Company Act of 1940, as
amended.
(r) Each of the Company and its subsidiaries has or upon
consummation of the C&C Acquisition and the ▇▇▇▇▇ Acquisition will have
all permits, licenses, franchises, approvals, consents and authorizations
of governmental or regulatory authorities (hereinafter "permit" or
"permits") as are necessary to own its properties and to conduct its
business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus, except where the
failure to have obtained any such permit has not and will not have a
Material Adverse Effect; each of the Company and its subsidiaries has
fulfilled and performed in all material respects all of its obligations
with respect to each such permit and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or termination
of any such permit or result in any other material impairment of the
rights of the holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, such permits contain no restrictions that
are materially burdensome to the Company.
(s) Each of the Company and its subsidiaries has complied and
will comply with wage and hour determinations issued by the U.S.
Department of Labor under the Service Contract Act of 1965 and the Fair
Labor Standards Act in paying its employees' salaries, fringe benefits,
and other compensation for the performance of work or other duties in
connection with contracts with the U.S. government, except where the
failure to comply has not had and will not have a Material Adverse
Effect. Each of the Company has complied and will comply in all material
respects with the terms of all certifications and
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representations made to the U.S. government in connection with the
submission of any bid or proposal or any contract. The Company has
complied and will comply with the requirements of the American with
Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the
Employee Retirement Income Security Act, the Civil Rights Act of 1964
(Title VII), as amended, the Age Discrimination in Employment Act and
other applicable federal and state employment and labor laws, except
where the failure to comply has not had and will not have a Material
Adverse Effect.
(t) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorizations; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(u) Neither the Company nor any of its subsidiaries has,
directly or indirectly, at any time during the past five years (i) made
any unlawful contribution to any candidate for political office, or
failed to disclose fully any contribution in violation of law, or (ii)
made any payment to any federal, state or foreign governmental official,
or other person charged with similar public or quasi-public duties (other
than payments required or permitted by the laws of the United States or
any jurisdiction thereof or applicable foreign jurisdictions.)
(v) Each of the Company and its subsidiaries has obtained all
required permits, licenses, and other authorizations, if any, which are
required under federal, state, local and foreign statutes, ordinances and
other laws relating to pollution or protection of the environment,
including laws relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, chemicals, or industrial,
hazardous, or toxic materials or wastes into the environment (including,
without limitation, ambient air, surface water, ground water, land
surface, or subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of pollutants, contaminants, chemicals, or industrial,
hazardous, or toxic materials or wastes, or any regulation, rule, code,
plan, order, decree, judgment, injunction, notice, or demand letter
issued, entered, promulgated, or approved thereunder ("Environmental
Laws"), except where the failure to obtain any such permit, license or
other authorization has not resulted in and will not result in a Material
Adverse Effect. Each of the Company and its subsidiaries is in compliance
with all terms and conditions of all required permits, licenses, and
authorizations, except to the extent the failure to be so in compliance
would not have Material Adverse Effect, and are also in compliance with
all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables contained in the
Environmental Laws, except to the extent the failure to be so in
compliance would not have Material Adverse Effect. There is no pending
or, to the best knowledge of the Company after due inquiry, threatened
civil or criminal litigation, notice of violation, or administrative
proceeding relating in any way to the Environmental Laws (including but
not limited to notices, demand letters, or claims under the Resource
Conservation and Recovery Act of 1976, as amended ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), the Emergency Planning and Community Right
to Know Act of 1986, as amended ("EPCRA"), the Clean Air Act, as amended
("CAA"), or the Clean Water Act, as amended ("CWA") and similar federal,
foreign, state, or local laws) involving the Company or any of its
subsidiaries which is reasonably likely to result in a Material Adverse
Effect. There have not been and there are not any past, present, or
foreseeable future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which may interfere with or
prevent continued compliance, or which may give rise to any common law or
legal liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study, or investigation, based on or
related to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling, or the emission, discharge,
release, or threatened release into the environment, of
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any pollutant, contaminant, chemical, or industrial, hazardous, or toxic
material or waste, including, without limitation, any liability arising,
or any claim, action, demand, suit, proceeding, hearing, study, or
investigation which may be brought, under RCRA, CERCLA, EPCRA, CAA, CWA
or similar federal, foreign, state or local laws which is reasonably
likely to result in a Material Adverse Effect.
(w) The Company owns and has full right, title and interest in
and to, or has valid licenses to use, each trade name, trademark or
service ▇▇▇▇ under which the Company conducts all or any part of its
business, and the Company has created no lien or encumbrance on, or
granted any right or license with respect to, any such trade name,
trademark or service ▇▇▇▇ except to the extent that any such lack of
ownership or possession, or the existence of any such lien, encumbrance,
right or license would not have a Material Adverse Effect; there is no
claim pending against the Company with respect to any trade name,
trademark or service ▇▇▇▇ and the Company has not received notice or
otherwise become aware that any trade name, trademark or service ▇▇▇▇
which it uses or has used in the conduct of its business infringes upon
or conflicts with the rights of any third party.
(x) All offers, sales, conversions and redemptions of the
Company's capital stock and other securities through the date hereof were
made in compliance with the Act and all other applicable state and
federal laws or regulations, except to the extent any noncompliance would
not have a Material Adverse Effect.
(y) The Shares have been duly authorized for trading on the
NASDAQ/NMS under the symbol "ROAC," subject to notice of issuance of the
Shares being sold by the Company, and upon consummation of the offering
contemplated hereby the Company will be in compliance with the
designation and maintenance criteria applicable to Nasdaq National Market
issuers.
(z) All federal, state, local and foreign tax returns required
to be filed by or on behalf of the Company and its subsidiaries (and
their predecessors) with respect to all periods ended prior to the date
of this Agreement have been filed (or are the subject of valid extension)
with the appropriate federal, state, local and foreign authorities and
all such tax returns, as filed, are accurate in all material respects.
All federal, state, local and foreign taxes (including estimated tax
payments) required to be shown on all such tax returns or claimed to be
due from or with respect to the business of the Company and its
subsidiaries (and their predecessors) have been paid or reflected as a
liability on the financial statements of the Company for appropriate
periods, except for those taxes or claims therefor which are being
contested by the Company in good faith and for which appropriate reserves
are reflected in the Company's financial statements. The Company's
liability for federal, state, local or foreign taxes resulting from the
transactions described under "Certain Transactions" in the Registration
Statement will not exceed $_____. All deficiencies asserted as a result
of any federal, state, local or foreign tax audits have been paid or
finally settled and no issue has been raised in any such audit which, by
application of the same or similar principles, reasonably could be
expected to result in a proposed deficiency for any other period not so
audited. There are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any federal, state, local or
foreign tax return for any period. On the Closing Date, and Additional
Closing Date, if any, all stock transfer and other taxes which are
required to be paid in connection with the sale of the shares to be sold
by the Company to the Underwriters will have been fully paid by the
Company and all laws imposing such taxes will have been complied with.
(aa) Except as set forth in the Prospectus, there are no
transactions with "affiliates" (as defined in Rule 405 promulgated under
the Act) or any officer, director or security holder of the Company
(whether or not an affiliate) which are required by the Act and the
applicable rules and regulations thereunder to be disclosed in the
Registration Statement.
(bb) The Company has preserved the written agreement of each of
the Company's executive officers and directors, each stockholder holding
more than two percent (2%) of the Common Stock
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immediately prior to the date hereof and each of the Selling Stockholders
not to (i) directly or indirectly selling, offering or contracting to
sell or otherwise dispose of or transfer any shares of Company Securities
owned or controlled by such persons now or hereafter or any rights to
purchase Company Securities for a period of 180 days after the date of
the Prospectus first filed pursuant to Rule 424(b) under the Act (the
"Restriction Period"), without your prior written consent, or (ii)
exercise or seek to exercise or effectuate in any manner any rights of
any nature that such persons have or may hereafter have to require the
Company to register under the Act any such person's sale, transfer or
other disposition of any Company Securities or other securities of the
Company held by any such persons, or to otherwise participate as a
selling securityholder in any manner in any registration effected by the
Company under the Act, including the registration to which this Agreement
relates, before the expiration of the Restriction Period.
(cc) All of the following transactions (collectively, the
"Company Transactions") have occurred prior to the date hereof:
(i) The Company has merged with and into Rock of Ages
Quarries, Inc., a Vermont corporation, with Rock of Ages Quarries,
Inc. as the surviving corporation, which changed its name to Rock
of Ages Corporation;
(ii) Rock of Ages Quarries Canada, a __________
corporation, merged with and into Rock of Ages Canada Inc., a
__________ corporation, with Rock of Ages Canada Inc. as the
surviving corporation;
(iii) the capital stock of Royalty Granite Corporation
(Georgia), a Georgia corporation, was contributed by ▇▇▇▇▇▇▇
Granite Company, Inc., a New Hampshire corporation ("▇▇▇▇▇▇▇"), to
the Company;
(iv) (A) Rock of Ages Canada Inc. transferred the shares
of Norgranite, Inc., a __________ corporation, to Group Polycor
International, a ____________ corporation, for nominal
consideration and dividended to the Company the shares of Group
Polycor International, and (B) the Company dividended such shares
and a [granite memorial manufacturing] plant in Barre, Vermont
acquired from ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Co., Inc. and certain equipment
contained therein to ▇▇▇▇▇▇▇;
(v) the Company purchased all of the shares of capital
stock of Rock of Ages Asia, a ____________ corporation, owned by
Quarry Capital Limited, a Bermuda ____________, for $______ in
cash;
(vi) (A) the Company acquired KSM, Inc., a Georgia
corporation ("KSM") and the successor to Keystone Memorials, Inc.,
a ___________ corporation, pursuant to a merger of KSM with and
into the Company with the Company as the surviving corporation;
all outstanding shares of KSM capital stock are converted into
526,882 shares of the Company's Common Stock, which were issued to
Missouri Red Quarries, Inc., a Georgia corporation ("Missouri
Red") and the sole shareholder of KSM, (B) the Company contributed
to Royalty Granite Corporation (Georgia) substantially all of the
assets and liabilities of KSM, including 50% of the issued and
outstanding capital stock of each of Southern Mausoleum, Inc., a
Georgia corporation, Pennsylvania Granite Corporation, a
Pennsylvania corporation, Caprice Blue Quarry, Inc., Georgia
corporation, and ▇▇▇▇▇▇ ▇▇▇▇ Quarry, Inc., a Georgia corporation
(collectively, the "Quarry Companies"), and (C) Royalty Granite
Corporation (Georgia) changed its name to Keystone Memorials,
Inc.; and
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(vii) the Company has effected a reincorporation merger
with and into a newly formed wholly-owned subsidiary of the
Company, incorporated under the laws of the State of Delaware,
with the wholly-owned subsidiary surviving and renamed as Rock of
Ages Corporation.
7. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
of the Selling Stockholders hereby severally represents and warrants to each
Underwriter on the date hereof (except as otherwise set forth herein), and shall
be deemed to severally represent and warrant to each Underwriter on the Closing
Date and the Additional Closing Date, that:
(a) Such Selling Stockholder has full right, power and
authority to enter into this Agreement and the Power of Attorney and
Custody Agreement, and to sell, assign, transfer and deliver the Shares
to be sold by such Selling Stockholder hereunder.
(b) This Agreement and the Power of Attorney and Custody
Agreement have been duly authorized, executed and delivered by such
Selling Stockholder and this Agreement and the Power of Attorney and
Custody Agreement constitute the valid and binding agreements of such
Selling Stockholder enforceable against such Selling Stockholder in
accordance with their respective terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equitable principles, whether considered in a proceeding at law or in
equity, and further that rights to indemnify and contribution hereunder
may be limited by federal or state securities laws or the public policy
underlying such laws; the performance of this Agreement and the Power of
Attorney and Custody Agreement and the consummation of the transactions
contemplated herein and therein will not result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, voting trust agreement, note
agreement, lease or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder or such
Selling Stockholder's properties are bound, or under any order, rule or
regulation of any court or governmental agency or body applicable to such
Selling Stockholder or the business or property of such Selling
Stockholder.
(c) Such Selling Stockholder has, and immediately prior to the
Closing Date (and the Additional Closing Date, if any) such Selling
Stockholder will have, valid and marketable title to the Shares to be
sold by such Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities, stockholder agreements, voting trusts or claims
of any nature whatsoever, and, upon delivery of such Shares and payment
therefor pursuant hereto, valid and marketable title to such Shares, free
and clear of all liens, encumbrances, equities, stockholder agreements,
voting trusts or claims of any nature whatsoever (other than those
arising by or through the Underwriters), will pass to the several
Underwriters.
(d) Such Selling Stockholder will not, for a period of 180 days
after the date of the Prospectus first filed pursuant to Rule 424(b)
under the act (the "Restriction Period"), (i) directly or indirectly,
sell, offer or contract to sell, or otherwise dispose of or transfer any
shares of Company Securities owned or controlled by such Selling
Stockholder now or hereafter or any rights to purchase Company
Securities, without the Representative's prior written consent, or (ii)
exercise or seek to exercise or effectuate in any manner any rights of
any nature that such persons have or may hereafter have to require the
Company to register under the Act any such person's sale, transfer or
other disposition of any Company Securities or other securities of the
Company held by any such persons, or to otherwise participate as a
selling securityholder in any manner in any registration effected by the
Company under the Act, including the registration to which this Agreement
relates, before the expiration of the Restriction Period.
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(e) Such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to or which has constituted
nor which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares.
(f) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is
required to be made or obtained by such Selling Stockholder in connection
with the execution and delivery by such Selling Stockholder of this
Agreement or the Power of Attorney and Custody Agreement or for the
consummation by such Selling Stockholder of the transactions on his part
contemplated herein or in the Power of Attorney and Custody Agreement or
the sale and delivery of the Shares to be sold by such Selling
Stockholders hereunder, except such as have been obtained under the Act
and such as may be required under state securities or Blue Sky laws or
the by-laws and rules of the NASD in connection with the purchase and
distribution by the Underwriters of the Shares to be sold by the Selling
Stockholder.
(g) The information with respect to such Selling Stockholder
contained in the Registration Statement, the Prepricing Prospectus and
the Prospectus (as amended or supplemented, if the Company shall have
filed with the Commission any amendment or supplement thereto) does not
contain any untrue statement of a material fact or, to such Selling
Stockholder's knowledge, omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading.
(h) The Selling Stockholder has not distributed and will not
distribute any Prepricing Prospectus, the Prospectus or any other
offering material in connection with the offering and sale of the Shares,
other than with your prior written consent and as permitted by the Act.
(i) On the Closing Date, and on the Additional Closing Date, if
any, all stock transfer and other taxes (other than income taxes) which
are required to be paid in connection with the sale and transfer of the
Shares to be sold by the Selling Stockholder to the several Underwriters
hereunder will have been fully paid for by such Selling Stockholder and
all laws imposing such taxes will have been fully complied with.
In order to document the Underwriters' compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated, the Selling Stockholders
severally agree to deliver to you at least two days prior to the Closing Date a
properly completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
Each of the Selling Stockholders represents and warrants that
certificates in negotiable form representing all of the Shares to be sold by
such Selling Stockholder hereunder (or shares of ▇▇▇▇▇▇▇ Granite Company, Inc.
that will be converted into such shares as part of the Reorganization) have been
placed in custody under a Power of Attorney and Custody Agreement in the form
heretofore furnished to you, duly executed and delivered by such Selling
Stockholder to [THE COMPANY'S TRANSFER AGENT,] as custodian (the "Custodian"),
and that pursuant to such Power of Attorney and Custody Agreement such Selling
Stockholder has duly appointed _________________ and ____________________ as
such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with
authority to execute and deliver this Agreement on behalf of such Selling
Stockholder, to determine the purchase price to be paid by the Underwriters to
the Selling Stockholders as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Stockholder hereunder or
otherwise to act on behalf of such Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Power of Attorney and
Custody Agreement. Each of the Selling Stockholders specifically agrees that the
Shares represented by the certificates held in custody for such Selling
Stockholders under the Power of Attorney and Custody Agreement are subject to
the interest of the Underwriters hereunder, and that the arrangements made by
such Selling Stockholder for such custody, and the appointment by such Selling
Stockholder of the Attorneys-in-Fact pursuant to the Power
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of Attorney and Custody Agreement, are to that extent irrevocable. Each of the
Selling Stockholders specifically agrees that the obligations of such Selling
Stockholders hereunder shall not be terminated by operation of law, whether by
the death or incapacity of any individual Selling Stockholder or, in the case of
an estate or trust, by the death or incapacity of any executor or trustee or the
termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by the
occurrence of any other event. If any individual Selling Stockholder or any
executor or trustee should die or become incapacitated, or if any such estate or
trust shall be terminated, or if any such partnership or corporation should be
dissolved, or if any other such event should occur before the delivery of the
Shares hereunder, certificates representing the Shares shall be delivered by or
on behalf of the Selling Stockholders in accordance with the terms and
conditions of this Agreement and the Power of Attorney and Custody Agreement,
and actions taken by the Attorneys-in-Fact pursuant to the Power of Attorney and
Custody Agreement shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of
such death, incapacity, termination, dissolution or other event.
8. EXPENSES. Whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective or is terminated, the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof and of any Prepricing Prospectus to the Underwriters and
dealers; (ii) the printing and delivery (including, without limitation, postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, each Prepricing Prospectus, the Blue
Sky memoranda, the Power of Attorney and Custody Agreement, the Master Agreement
Among Underwriters, this Agreement, the Selected Dealers Agreement and all
amendments or supplements to any of them as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws or Blue Sky laws, including the reasonable attorneys' fees
and out-of-pocket expenses of the counsel for the Underwriters in connection
therewith; (iv) the filing fees incident to securing any required review by the
NASD of the terms of the sale of the Shares and the reasonable fees and
disbursements of the Underwriters' counsel relating thereto; (v) the cost of
preparing stock certificates; (vi) the costs and charges of any transfer agent
or registrar; (vii) the cost of the tax stamps, if any, in connection with the
issuance and delivery of the Shares to the respective Underwriters; (viii) all
other fees, costs and expenses referred to in Item 25 of the Registration
Statement, (ix) the transportation, lodging, graphics and other expenses
incidental to the Company's preparation for and participation in the "roadshow"
for the offering contemplated hereby, and (x) all other costs and expenses
incident to the performance of the obligations of the Company hereunder which
are not otherwise specifically provided for in this Section 8. Notwithstanding
the foregoing, in the event that the proposed offering is terminated for the
reasons set forth in Section 5(i) hereof, the Company agrees to reimburse the
Underwriters as provided in Section 5(i).
9. INDEMNIFICATION AND CONTRIBUTION. Subject to the limitations in
this paragraph below, the Company and the Selling Stockholders severally but not
jointly, agree to indemnify and hold harmless you and each other Underwriter,
the directors, officers, employees and agents of each Underwriter, and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") from and against any and all losses, claims, damages,
liabilities and expenses, including, without limitation, reasonable costs of
investigation and attorneys' fees and expenses (collectively, "Damages") arising
out of or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Prepricing Prospectus or in the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except to the extent that any such Damages arise out of or are based upon an
untrue statement or omission or alleged untrue statement or omission which has
been made therein or omitted therefrom in reliance upon and in conformity with
the information furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for
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use in connection therewith, or (ii) any inaccuracy in or breach of the
representations and warranties of the Company or the Selling Stockholders
contained herein or any failure of the Company or the Selling Stockholders to
perform their respective obligations hereunder or under law; PROVIDED, HOWEVER,
that (A) the indemnity agreement of each Selling Stockholder contained in this
paragraph shall apply only with respect to Damages arising out of or based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information furnished by
such Selling Stockholder in writing to the Company expressly for use in or in
connection with the Registration Statement and the offering contemplated
thereby, or arising out of or based upon any such inaccuracy or breach of such
Selling Stockholder's representations and warranties contained herein or any
failure of such Selling Stockholder to perform his or its obligations hereunder
or under law, and (B) with respect to any untrue statement or omission made in
any Prepricing Prospectus, the indemnity agreement contained in this paragraph
shall not inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased the Shares concerned if both
(y) a copy of the Prospectus was not sent or given to such person at or prior to
the written confirmation of the sale of such Shares to such person as required
by the Act, and (z) the untrue statement or omission in the Prepricing
Prospectus was corrected in the Prospectus. Notwithstanding anything in this
Section 9, in no event shall any Selling Stockholder's obligation under this
Section 9 exceed the total net proceeds from the offering received by such
Selling Stockholder (computed without deduction for any income taxes); it being
agreed that the Company shall bear the balance.
In addition to its other obligations under this Section 9, the Company
and the Selling Stockholders agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any inaccuracy in the
representations and warranties of the Company or any Selling Stockholder herein
or failure to perform their obligations hereunder, all as set forth in this
Section 9, they will reimburse each Underwriter on a quarterly basis for all
reasonable legal or other out-of-pocket expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Company's or any Selling Stockholder's
obligation to reimburse each Underwriter for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, each Underwriter shall promptly return
it to the person(s) from whom it was received, together with interest compounded
daily determined on the basis of the base lending rate announced from time to
time by Chase Manhattan Bank, N.A. (the "Prime Rate"). Any such interim
reimbursement payments which are not made to the Underwriters within 30 days of
a request for reimbursement shall bear interest at the Prime Rate from the date
of such request.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Company or any Selling Stockholder, such Underwriter or such
controlling person shall promptly notify in writing the party(s) against whom
indemnification is being sought (the "indemnifying party" or "indemnifying
parties"), and such indemnifying party(s) shall assume the defense thereof,
including the employment of counsel reasonably acceptable to such Underwriter or
such controlling person and payment of all fees and expenses. Such Underwriter
or any such controlling person shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the indemnifying party(s) has (have) agreed in
writing to pay such fees and expenses, (ii) the indemnifying party(s) has (have)
failed to assume the defense and employ counsel reasonably acceptable to the
Underwriter or such controlling person or (iii) the named parties to any such
action (including any impleaded parties) include both such Underwriter or such
controlling person and the indemnifying party(s), and such Underwriter or such
controlling person shall have been advised by its counsel in writing that one or
more legal defenses may be available to the Underwriter which may not be
available to the Company, or that representation of such indemnified party and
any indemnifying party(s) by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the indemnifying party(s) shall not have
the right to assume the defense of such action on behalf of
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such Underwriter or such controlling person (notwithstanding its (their)
obligation to bear the fees and expenses of such counsel)). It is understood,
however, that the indemnifying parties shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests. The indemnifying party(s) shall
not be liable for any settlement of any such action effected without its (their)
written consent, but if settled with such written consent, or if there be a
final judgment for the plaintiff in any such action, the indemnifying party(s)
agrees to indemnify and hold harmless any Underwriter and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment, but in the case of a judgment only to the extent
stated in the immediately preceding paragraph.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act and the Selling Stockholders, to
the same extent as the foregoing indemnity from the Company and the Selling
Stockholders to each Underwriter, but only with respect to information furnished
in writing by or on behalf of such Underwriter through you expressly for use in
the Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action or claim shall be brought or
asserted against the Company, any of its directors, any such officers, or any
such controlling person or the Selling Stockholders based on the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph, such Underwriter shall have the rights
and duties given to the Company and the Selling Stockholders by the preceding
paragraph (except that if the Company shall have assumed the defense thereof
such Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter's expense), and the Company, its
directors, any such officers, and any such controlling persons and the Selling
Stockholders shall have the rights and duties given to the Underwriters by the
immediately preceding paragraph.
In addition to its other obligations under this Section 9, each
Underwriter severally agrees that, as an interim measure during the pendency of
any claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 9 which relates to information furnished to the
Company in writing by or on behalf of the Underwriters through you expressly for
use in the Registration Statement, it will reimburse the Company (and, to the
extent applicable, each officer, director, controlling person or Selling
Stockholder) on a quarterly basis for all reasonable legal or other
out-of-pocket expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Underwriters' obligation to reimburse the Company (and, to
the extent applicable, each officer, director, controlling person or Selling
Stockholder) for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have been
improper, the Company (and, to the extent applicable, each officer, director,
controlling person or Selling Stockholder) shall promptly return it to the
Underwriters together with interest, compounded daily, determined on the basis
of the Prime Rate. Any such interim reimbursement payments which are not made to
the Company within 30 days of a request for reimbursement shall bear interest at
the Prime Rate from the date of such request.
If the indemnification provided for in this Section 9 is unavailable or
insufficient for any reason whatsoever to an indemnified party under the first
or fourth paragraph of this Section 9 in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then an indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other hand
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from the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholders on the one
hand and the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus; provided that, in the
event that the Underwriters shall have purchased any Additional Shares
hereunder, any determination of the relative benefits received by the Company
and the Selling Stockholders or the Underwriters from the offering of the Shares
shall include the net proceeds (before deducting expenses) received by the
Company and the Selling Stockholders, and the underwriting discounts and
commissions received by the Underwriters, from the sale of such Additional
Shares, in each case computed on the basis of the respective amounts set forth
in the notes to the table on the cover page of the Prospectus. The relative
fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Selling Stockholders on the one hand or by the
Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 9 was
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule I hereto (or such numbers of Firm Shares
increased as set forth in Section 11 hereof) and not joint.
The indemnity, contribution and reimbursement agreements contained in
this Section 9 and the representations and warranties of the Company and the
Selling Stockholders, respectively, set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter,
the Company, its directors or officers or any person controlling the Company or
the Selling Stockholders, (ii) acceptance of any Shares and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company or the Selling
Stockholders, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 9.
It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in the second and fifth paragraphs
of this Section 9, including the amounts of any requested reimbursement payments
and the method of determining such amounts, shall be settled by arbitration
conducted pursuant to the Code of Arbitration Procedure of the NASD. Any such
arbitration must be commenced by service of a written demand for arbitration or
written notice of intention to arbitrate, therein electing the arbitration
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tribunal. In the event the party demanding arbitration does not make such
designation of an arbitration tribunal in such demand or notice, then the party
responding to said demand or notice is authorized to do so. Such an arbitration
would be limited to the operation of the interim reimbursement provisions
contained in the second and fifth paragraphs of this Section 9, and would not
resolve the ultimate propriety or enforceability of the obligation to reimburse
expenses which is created by the provisions of the second and fifth paragraphs
of this Section 9.
10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 p.m., New York City time, on the date hereof, or at such later
date and time as shall be consented to in writing by you, and all filings
required by Rules 424(b), 430A and 462 under the Act shall have been timely
made.
(b) You shall be reasonably satisfied that since the respective
dates as of which information is given in the Registration Statement and
Prospectus, (i) there shall not have been any change in the capital stock (other
than pursuant to the consummation of the Company Transactions as described in
Section 6(dd) hereof and the Prospectus) of the Company or any material change
in the indebtedness (other than in the ordinary course of business) of the
Company, (ii) except as set forth or contemplated by the Registration Statement
or the Prospectus, no material oral or written agreement or other transaction
shall have been entered into by the Company which is not in the ordinary course
of business or which could reasonably be expected to result in a material
reduction in the future earnings of the Company, (iii) no loss or damage
(whether or not insured) to the property of the Company shall have been
sustained which had or could reasonably be expected to have a Material Adverse
Effect, (iv) no legal or governmental action, suit or proceeding affecting the
Company or any of its properties which is material to the Company and its
subsidiaries taken as a whole or which affects or could reasonably be expected
to affect the transactions contemplated by this Agreement shall have been
instituted or threatened, and (v) there shall not have been any change in the
condition (financial or otherwise), business, management, results or operations
or prospects of the Company having a Material Adverse Effect which makes it
impractical or inadvisable in your judgment to proceed with the public offering
or purchase the Shares as contemplated hereby.
(c) You shall have received on the Closing Date (and the
Additiona l Closing Date, if any) an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, as counsel for the Company, dated the Closing Date, satisfactory to
you and your counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the State
of Delaware, with the corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and
any amendment or supplement thereto), and is duly registered or
otherwise qualified to conduct its business as a foreign
corporation and is in good standing under the laws of the states
listed in the Officer's Certificate to be attached to such
counsel's opinion (the "Officer's Certificate").
(ii) Each of the subsidiaries is a corporation validly
existing in good standing under the laws of the jurisdiction of
its organization, with full corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and
any amendment or supplement thereto); and is duly registered and
qualified to conduct its business and is in good standing as a
foreign corporation under the laws of the states listed in the
Officer's Certificate; and all of the outstanding shares of
capital stock of each of the subsidiaries have been duly
authorized and validly issued, and are fully paid and
nonassessable, and are owned by the Company directly, or
indirectly through one of the other subsidiaries, free and clear
of any perfected security interest, or to the best knowledge of
such
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counsel after reasonable inquiry, any other security interest,
lien, adverse claim, equity or other encumbrance.
(iii) The authorized and the outstanding capital stock of
the Company conforms in all respects to the description thereof
contained in the Prospectus under the captions "Capitalization"
and "Description of Capital Stock." Except as set forth in the
Prospectus, to the best of such counsel's knowledge, the Company
is not a party to or bound by any outstanding options, warrants or
similar rights to subscribe for, or contractual obligations to
issue, sell, transfer or acquire, any of its capital stock or any
securities convertible into or exchangeable for any of such
capital stock.
(iv) All shares of capital stock of the Company
outstanding prior to the issuance of the Shares to be issued and
sold by the Company hereunder, have been duly authorized and
validly issued, and are fully paid and nonassessable and are free
of any statutory preemptory rights or preemptory rights in the
Company's charter or bylaws or, to the best knowledge of such
counsel, similar rights that entitle or will entitle any person to
acquire any shares upon the issuance thereof by the Company.
(v) The Shares to be issued and sold to the Underwriters
by the Company and the Selling Stockholders hereunder have been
duly authorized and, when issued and delivered to the Underwriters
against payment therefor in accordance with the terms hereof, such
Shares will be validly issued, fully paid and nonassessable and
free and clear of all liens, claims and encumbrances.
(vi) The form of certificates for the Shares conforms in
all material respects to the requirements of the Delaware General
Corporation Law.
(vii) The Registration Statement has become effective
under the Act and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
before or contemplated by the Commission.
(viii) The Company has the requisite corporate power and
corporate authority to enter into this Agreement and to issue,
sell and deliver the Shares to be sold by it to the Underwriters
as provided herein, and this Agreement has been duly authorized,
executed and delivered by the Company and is a valid, legal and
binding agreement of the Company enforceable against the Company
in accordance with its terms, except to the extent enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equitable principles, and except to the extent enforceability of
the provisions relating to indemnity and contribution for
liabilities under the Act may be limited by or under the Act.
(ix) Neither the Company nor any of the subsidiaries is
in violation of its certificate of incorporation or bylaws, and,
to the best knowledge of such counsel, the Company is not in
default in the performance of any obligation, agreement or
condition contained in any agreement that is an exhibit to the
Registration Statement where the default would have, individually
or in the aggregate, a Material Adverse Effect.
(x) Neither the offer, sale or delivery of the Shares,
the execution, delivery or performance of this Agreement,
compliance by the Company with all provisions hereof nor
consummation by the Company of the transactions contemplated
hereby (A) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate of
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incorporation or bylaws of the Company or any agreement that is an
exhibit to the Registration Statement, (B) creates or will result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, or (C) violates or
will result in any violation of any existing law, statute,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or
decree which is known to such counsel and applicable to the
Company or any of its properties.
(xi) No consent, approval, authorization or other order
of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or
official is required on the part of the Company (except such as
have been obtained under the Act or such as may be required under
state securities or Blue Sky laws governing the purchase and
distribution of the Shares) for the valid issuance and sale of the
Shares to the Underwriters under this Agreement.
(xii) The Registration Statement and the Prospectus and
any supplements or amendments thereto (except for the financial
statements and the notes thereto and the schedules and other
financial and statistical data included therein, as to which such
counsel need not express any opinion) comply as to form in all
material respects with the requirements of the Act. Without
limiting the generality of the foregoing, any Rule 434 Prospectus
conforms in all material respects with the requirements of Rule
434 under the Act.
(xiii) To the best knowledge of such counsel, (A) there are
no legal or governmental proceedings pending or threatened
against the Company or to which the Company or any of its
properties is subject, that are required to be described in the
Registration Statement or Prospectus (or any amendment or
supplement thereto) that are not described as required therein,
and (B) there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that are not described or
filed as required, as the case may be.
(xiv) To the best knowledge of such counsel, the Company
is not in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or of
any decree of any court or governmental agency or body having
jurisdiction over the Company except where such violation does not
and will not have a Material Adverse Effect.
(xv) To the best knowledge of such counsel, the Company
has such permits, licenses, franchises, approvals, consents and
authorizations of governmental or regulatory authorities
("Permits"), as are necessary for the Company to own its
properties and to conduct its business in the manner described in
the Prospectus, except where the failure to have such Permits
would not individually or in the aggregate have a Material Adverse
Effect.
(xvi) Such counsel has reviewed all agreements, contracts,
indentures, leases or other documents or instruments described or
referred to in the Registration Statement and the Prospectus
(other than routine contracts entered into by the Company for the
purchase of materials or the sale of products entered into in the
normal course of business, although such counsel has reviewed the
forms of such routine contracts), and such agreements, contracts
(and forms of contracts), indentures, leases or other documents or
instruments are fairly summarized or disclosed in all material
respects therein, and filed as exhibits thereto as required, and
such counsel does not know, after reasonable inquiry, of any
agreements, contracts, indentures, leases or other documents or
instruments required to be so summarized or disclosed or filed
which have not been so summarized or disclosed or filed.
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(xvii) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
In rendering such opinion, counsel may rely, to the extent they
deem such reliance proper, as to matters of fact upon certificates of officers
of the Company and of government officials, provided that counsel shall state
their belief that they and you are justified in relying thereon. Copies of all
such certificates shall be furnished to you and your counsel on the Closing
Date.
In rendering such opinion, in each case where such opinion is
qualified by "the best knowledge of such counsel" or "known to such counsel,"
such counsel may rely as to matters of fact upon certificates of executive and
other officers and employees of the Company as you and such counsel shall deem
are appropriate and such other procedures as you and such counsel shall mutually
agree; provided, however, in each such case, such counsel shall state that it
has no knowledge contrary to the information contained in such certificates or
developed by such procedures and knows of no reason why you should not
reasonably rely upon the information contained in such certificates or developed
by such procedures. Such counsel may state in such opinion that its knowledge is
limited to the knowledge of its attorneys and other representatives and
employees that have given attention to the Company's matters.
In addition to the opinion set forth above, such counsel shall state that
during the course of their participation in the preparation of the Registration
Statement and the Prospectus and the amendments thereto, nothing has come to the
attention of such counsel which has caused them to believe or given them reason
to believe that the Registration Statement or the Prospectus or any amendment
thereto (except for the financial statements and other financial and statistical
information contained therein or omitted therefrom as to which no opinion need
be expressed), at the date thereof, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Registration
Statement or the Prospectus as of the date of the opinion (except as aforesaid),
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) You shall have received on the Closing Date (and the
Additional Closing Date, if any) the opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, as counsel for the Selling Stockholders, dated the
Closing Date (and the Additional Closing Date, if any) in form and
substance satisfactory to you, to the effect that:
(i) This Agreement, and the Power of Attorney and
Custody Agreement have been duly authorized, executed and
delivered by or on behalf of each of the Selling Stockholders and
constitute valid and binding agreements of such Selling
Stockholder enforceable in accordance with their respective terms,
except to the extent enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or
other similar laws relating to or affecting enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is sought in equity or at law);
and the performance of this Agreement, the Power of Attorney and
Custody Agreement and the consummation of the transactions herein
and therein contemplated will not result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, voting
trust agreement, note agreement, lease or other agreement or
instrument of which such counsel is aware and to which such
Selling Stockholder is a party or by which such Selling
Stockholder or its properties are bound, or any order, rule or
regulation, known to such counsel of any court or governmental
agency or body applicable to such Selling Stockholders or the
business or property of such Selling Stockholders.
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(ii) No consent, approval, authorization or order has
been or is required for the consummation by the Selling
Stockholders of the transactions contemplated by this Agreement,
and the Power of Attorney and Custody Agreement in connection with
the sale of the Shares to be sold by each of the Selling
Stockholders hereunder, except consents, approvals, authorizations
or orders which have been duly obtained and are in full force and
effect, such as have been obtained under the Act and such as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of such Shares by the
Underwriters.
(iii) Immediately prior to the Closing Date, each Selling
Stockholder was the sole registered owner of the Shares to be sold
by such Selling Stockholder under this Agreement. Assuming the
Underwriters acquired their interest in the Shares to be sold by
the Selling Stockholders in good faith and without notice of any
adverse claim within the meaning of Section 8-302 of the Uniform
Commercial Code as in effect in the State of Massachusetts, upon
delivery of the Underwriters in the State of Massachusetts of
certificates representing the shares that are endorsed to the
Underwriters or endorse in blank, the Underwriters will acquire
all rights of the Selling Stockholders in the Shares free of any
adverse claims within the meaning of Section 8-302.
In rendering such opinion, such counsel may rely upon a
certificate of the Selling Stockholders as to matters of fact (i) with
respect to ownership of and liens, encumbrances, equities or claims on
the Shares sold by the Selling Stockholders, and (ii) with respect to any
agreements, mortgages, deeds of trust, voting trusts, notes, leases or
other instruments, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
certificates.
(e) You shall have received on the Closing Date an opinion of
Greenberg, Traurig, Hoffman, Lipoff, ▇▇▇▇▇ & Quentel, P.A., as counsel
for the Underwriters, dated the Closing Date with respect to the issuance
and sale of the Firm Shares, the Registration Statement and other related
matters as you may reasonably request, and the Company and its counsel
shall have furnished to your counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) You shall have received letters addressed to you and dated
the date hereof and the Closing Date from the firms of KPMG Peat Marwick
LLP and Green & Co., independent certified public accountants,
substantially in the forms heretofore approved by you.
(g) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or, to the knowledge of the Company, shall be
threatened or contemplated by the Commission at or prior to the Closing
Date; (ii) no order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Shares under the
securities or Blue Sky laws of any jurisdiction shall be in effect and no
proceeding for such purpose shall be pending or, to the knowledge of the
Company, threatened or contemplated by the Commission or the authorities
of any jurisdiction; (iii) any request for additional information on the
part of the staff of the Commission or any such authorities shall have
been complied with to the satisfaction of the staff of the Commission or
such authorities; (iv) after the date hereof no amendment or supplement
to the Registration Statement or the Prospectus shall have been filed
unless a copy thereof was first submitted to you and you did not object
thereto in good faith; and (v) all of the representations and warranties
of the Company and the Selling Stockholders contained in this Agreement
shall be true and correct in all respects on and as of the date hereof
and on and as of the Closing Date as if made on and as of the Closing
Date, and you shall have received a certificate, dated the Closing Date
and signed by the chief executive officer and the chief financial officer
of the Company (or such other officers as are acceptable to you) to the
effect set forth in this Section 10(g) and in Sections 10(b) and 10(h)
hereof.
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(h) The Company shall not have failed in any material respect
at or prior to the Closing Date to have performed or complied with any of
its agreements herein contained and required to be performed or complied
with by it hereunder at or prior to the Closing Date.
(i) You shall have received a certificate, dated on and as of
the Closing Date, by or on behalf of each Selling Stockholder to the
effect that as of such Closing Date such Selling Stockholders
representations and warranties in this Agreement are true and correct as
if made on and as of such Closing Date, and that such Selling Stockholder
has performed all such Selling Stockholder's obligations and satisfied
all the conditions on such Selling Stockholder's part to be performed or
satisfied at or prior to the Closing Date.
(j) The Company and the Selling Stockholders shall have
furnished or caused to have been furnished to you such further
certificates and documents as you shall have reasonably requested.
(k) At or prior to the Closing Date, you shall have received
the written commitment of each of the Company's officers and directors,
and each of the persons and entities listed on EXHIBIT A hereto, not to
(i) directly or indirectly sell, offer or contract to sell, or otherwise
dispose of or transfer any shares of Common Stock or securities of the
Company convertible into or exchangeable or exercisable for Common Stock
(collectively, "Company Securities") owned or controlled by such persons
now or hereafter or any rights to purchase Company Securities, for a
period of 180 days after the date of the Prospectus first filed pursuant
to Rule 424(b) under the Act (the "Restriction Period"), without your
prior written consent, or (ii) exercise or seek to exercise or effectuate
in any manner any rights of any nature that such persons have or may
hereafter have to require the Company to register under the Act any such
person's sale, transfer or other disposition of any Company Securities or
other securities of the Company held by any such persons, or to otherwise
participate as a selling securityholder in any manner in any registration
effected by the Company under the Act, including the registration to
which this Agreement relates, before the expiration of the Restriction
Period.
(l) At or prior to the effective date of the Registration
Statement, you shall have received a letter from the Corporate Financing
Department of the NASD confirming that such Department has determined to
raise no objections with respect to the fairness or reasonableness of the
underwriting terms and arrangements of the offering contemplated hereby.
(m) The Company shall have acquired all of the outstanding
capital stock of both Childs & Childs Granite Company, Inc., a Georgia
corporation, and C&C Granite Company, Inc., a Georgia corporation
(collectively, "Childs & Childs"), and the remaining 50% of the issued
and outstanding capital stock of the Quarry Companies not acquired from
KSM in exchange for (1) aggregate cash consideration of $6,800,000, (2)
shares of Common Stock having an aggregate value of $200,000 based on the
price at which the Common Stock is sold to the public by the
Underwriters, (3) the repayment of all of the indebtedness of the Quarry
Companies attributable to Childs & Childs and (4) the issuance of an
option to purchase [75,000] shares of Common Stock at an exercise price
equal to the price at which the Common Stock is sold to the public by the
Underwriters.
(n) (A) the Company shall have acquired substantially all of
the assets of ▇▇▇▇▇ National Corporation, a ____________ corporation, and
[certain of its affiliated companies] (collectively, "▇▇▇▇▇ Monument") in
exchange for (1) shares of Common Stock having an aggregate value of
$1,500,000 based upon the price at which the Common Stock is sold to the
public by the Underwriters, (2) aggregate cash consideration of
$14,875,000, less indebtedness payable by ▇▇▇▇▇ Monument, and (3) the
issuance of options to purchase [125,000] shares of Common Stock at an
exercise price equal to the price at which the Common Stock is sold to
the public by the Underwriters, and (B) the Company shall have entered
into five-year employment agreements with each of ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇
▇▇▇▇▇, ▇▇. to serve as ___________ and ____________, respectively;
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(o) ▇▇▇▇▇▇▇ shall have merged with and into the Company with
the Company as the surviving corporation.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the satisfaction on and as of the Additional Closing
Date of the conditions set forth in this Section 10, except that, if the
Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (i) shall be dated as
of the Additional Closing Date and the opinions called for by paragraphs (c) and
(d) shall be revised to reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 10
shall not have been satisfied when and as required by this Agreement, this
Agreement may be terminated by you by notifying the Company of such termination
in writing or by telegram at or prior to such Closing Date, but you shall be
entitled to waive any of such conditions.
11. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective
upon the later of (a) the execution and delivery hereof by the parties hereto,
and (b) release of notification of the effectiveness of the Registration
Statement by the Commission; provided, however, that the provisions of Sections
8 and 9 shall at all times be effective.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Firm Shares, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I hereto bears to the aggregate number
of Firm Shares set forth opposite the names of all non-defaulting Underwriters
or in such other proportion as you may specify in the Agreement Among
Underwriters, to purchase the Firm Shares which such defaulting Underwriter or
Underwriters agreed, but failed or refused to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares and arrangements satisfactory
to you, the Company and the Selling Stockholders for the purchase of such Firm
Shares are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholders. In any such case which does not result in
termination of this Agreement, either you or the Company and the Selling
Stockholders shall have the right to postpone the Closing Date, but in no event
for longer than seven (7) days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any such default
of any such Underwriter under this Agreement.
12. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or the Selling Stockholders by notice to the Company
and the Selling Stockholders, if prior to the Closing Date or the Additional
Closing Date (if different from the Closing Date and then only as to the
Additional Shares), as the case may be, (i) trading in the Company's Common
Stock shall have been suspended by the Commission or the NASDAQ/NMS, (ii)
trading in securities generally on the New York Stock Exchange, American Stock
Exchange or NASDAQ/NMS shall have been suspended or materially limited, or
minimum or maximum prices shall have been generally established on such
exchange, or additional material governmental restrictions, not in force on the
date of this Agreement, shall have
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been imposed upon trading in securities generally by any such exchange or by
order of the Commission or any court or other governmental authority, (iii) a
general moratorium on commercial banking activities shall have been declared by
either federal or New York State authorities or (iv) there shall have occurred
any outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions or
other material event the effect of which on the financial markets of the United
States is such as to make it, in your good faith judgment, impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the
Shares. Notice of such cancellation shall be promptly given to the Company and
its counsel by telegraph, telecopy or telephone and shall be subsequently
confirmed by letter.
13. INFORMATION FURNISHED BY THE UNDERWRITERS. The Company
acknowledges that (i) the paragraph immediately following footnote (3) on the
cover page of the Prospectus, and (ii) the third and seventh paragraphs under
the caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you or on your behalf as such information is referred to in Sections
6(a), 6(b) and 9 hereof.
14. MISCELLANEOUS. Except as otherwise provided in Sections 5 and 12
hereof, notice given pursuant to any of the provisions of this Agreement shall
be in writing and shall be delivered (i) if to the Company or Selling
Stockholders, to the office of the Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Executive Officer
(with copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,; Attention: ▇▇▇▇ ▇.
▇▇▇▇, Esq. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ 02108), or (ii) if to you,
as Representatives of the Underwriters, to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, Vice
President (with copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.).
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, its directors and officers, and the other controlling
persons referred to in Section 9 hereof, the Selling Stockholders and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither of the terms "successor" and "successors and assigns" as used in this
Agreement shall include a purchaser from you of any of the Shares in his status
as such purchaser.
15. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of Massachusetts without
reference to choice of law principles thereunder.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
This Agreement shall be effective when, but only when, at least one
counterpart hereof shall have been executed on behalf of each party hereto.
The Company, the Selling Stockholders and the Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in respect to any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
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Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
ROCK OF AGES CORPORATION
By:
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
SELLING STOCKHOLDERS
By:
------------------------------------
Attorney-in-Fact
As Attorney-in-Fact acting on behalf of
each of the Selling Stockholders named in
Schedule II to this Agreement.
CONFIRMED as of the date first above
mentioned, on behalf of itself and the
other several Underwriters named in
Schedule I hereto.
By:
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President
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EXHIBIT A
---------
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SCHEDULE I
NUMBER OF
NAME FIRM SHARES
----------------------------------------------------------------- -----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
--------------------------------
_________________ -----------------------------------------------
_________________ -----------------------------------------------
_________________ -----------------------------------------------
_________________ -----------------------------------------------
_________________ -----------------------------------------------
_________________ -----------------------------------------------
TOTAL
-----------------------------------------------------------
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SCHEDULE II
FIRM SHARES ADDITIONAL SHARES TOTAL SHARES
----------- ----------------- ------------
COMPANY
------------------------
SELLING STOCKHOLDERS
________________-------------
________________-------------
________________-------------
________________-------------
________________-------------
________________-------------
________________-------------
________________------------- ___________ _________________ ____________
________________-------------
TOTAL: =========== ================= ============
