EXECUTION COPY
_________________________________________________________________
STOCKHOLDERS' AGREEMENT
Among
PRIME SUCCESSION, INC. (to be
renamed Prime Succession Holdings, Inc.),
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING FUND L.P.,
BLACKSTONE OFFSHORE CAPITAL PARTNERS II L.P.,
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P.
PSI MANAGEMENT DIRECT L.P.
And
XXXXXX GROUP INTERNATIONAL INC.
________________________________
Dated as of August 26, 1996
________________________________
_________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.............................. 2
Section 1.1 Certain Defined Terms................................... 2
ARTICLE II
SUBSCRIPTION; RECAPITALIZATION..................... 3
Section 2.1 Subscriptions for Common Stock and
Preferred Stock...................................... 3
Section 2.2 Organizational Documents................................ 3
(a) Restated Certificate of Incorporation..................... 3
(b) Bylaws.................................................... 3
Section 2.3 Debt Financing.
(a) High Yield Financing...................................... 3
(b) Bank Financing............................................ 3
(c) Transfer of Capital Stock and Other Assets................ 3
(d) Declaration of Dividend................................... 4
Section 2.4 Assignment of Rights Under the Stock
Purchase Agreement; Purchase of Shares by
Existing Prime....................................... 4
(a) Assignment of Rights...................................... 4
(b) Purchase of Existing Prime Shares......................... 4
Section 2.5 Payment of Expenses by New Prime........................ 4
ARTICLE III
RESTRICTIONS ON TRANSFER OF CAPITAL STOCK............... 4
Section 3.1 BCP, PSIM............................................... 4
Section 3.2 LGII.................................................... 5
Section 3.3 Transfers Void; Conditions to Permitted
Transfers............................................ 5
Section 3.4 Put and Call Options.................................... 5
Section 3.5 Redemption of Preferred Stock........................... 5
Section 3.6 Additional Issuance of Capital Stock.................... 5
ARTICLE IV
GOVERNANCE............................... 6
Section 4.1 Election of the Board of Directors...................... 6
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Page
Section 4.2 New Prime Board of Directors............................ 6
Section 4.3 Declaration and Payment of Dividends.................... 6
ARTICLE V
OTHER ARRANGEMENTS........................... 7
Section 5.1 Transaction Fees........................................ 7
Section 5.3 Other Expenses.......................................... 7
Section 5.4 Additional Equity for Cure Event Purposes............... 7
Section 5.5 Capital Stock of Subsidiaries........................... 8
ARTICLE VI
MISCELLANEOUS............................. 9
Section 6.1 Legend.................................................. 9
Section 6.2 Notices................................................. 9
Section 6.3 Severability............................................ 10
Section 6.4 Entire Agreement........................................ 11
Section 6.5 Amendment and Waiver.................................... 11
Section 6.6 Consent to Specific Performance......................... 11
Section 6.7 Assignment.............................................. 11
Section 6.8 Variations in Pronouns.................................. 11
Section 6.9 Term.................................................... 11
Section 6.10 Governing Law.......................................... 11
Section 6.11 Further Assurances..................................... 12
Section 6.12 Headings............................................... 12
Section 6.13 Counterparts........................................... 12
-2-
Exhibit A Subscription Agreement
Exhibit B Restated Certificate of Incorporation of Prime
Holdings
Exhibit C By-Laws of Prime Holdings
-3-
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of August 26, 1996 (this
"Agreement"), among Prime Succession, Inc. ("Existing Prime"), a Delaware
corporation to be renamed Prime Succession Holdings, Inc. ("Prime Holdings");
Prime Succession Acquisition Corp. ("New Prime"), a Delaware corporation to be
renamed Prime Succession, Inc. and previously known as Blackhawk Acquisition
Corp.; Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware
limited partnership ("BCPII"); Blackstone Offshore Capital Partners II L.P., a
Cayman Islands limited partnership ("BOCP"); Blackstone Family Investment
Partnership II L.P., a Delaware limited partnership ("BFIP" and, together with
BCPII, BOCP and each of their respective permitted assigns and transferees as
provided herein, "BCP"); Xxxxxx Group International, Inc., a Delaware
corporation (together with its permitted assigns and transferees as provided
herein, "LGII"); and PSI Management Direct L.P., a Delaware limited partnership
("PSIM"). BCP, LGII and PSIM are herein collectively referred to as the
"Stockholders" and individually as a "Stockholder."
WHEREAS, pursuant to a stock purchase agreement dated as of June 14,
1996 (the "Stock Purchase Agreement"), among Existing Prime, the other
individuals or entities listed on the signature pages thereto as selling
stockholders (collectively, the "Sellers"), The Xxxxxx Group Inc., a British
Columbia corporation and New Prime, New Prime obtained the right to acquire all
of the capital stock of Existing Prime held by the Sellers, which right has
previously been assigned to Blackhawk Onshore Acquisition Company L.L.C. and
Blackhawk Offshore Acquisition Company L.L.C. and is being further assigned to
Existing Prime at the Closing (as defined below), such that Existing Prime would
repurchase such capital stock from such Sellers;
WHEREAS, at the Closing the Stockholders will subscribe for newly
issued shares of capital stock of Existing Prime, such that upon the
consummation of such subscription and the repurchase by Existing Prime of its
shares held by the Sellers as described above, the Stockholders will hold all of
the then issued and outstanding shares of capital stock of Existing Prime;
WHEREAS, at the Closing New Prime will become a wholly owned
subsidiary of Existing Prime, and Existing Prime will contribute to New Prime
all of Existing Prime's currently held subsidiaries and other assets such that
New Prime will hold all the businesses previously held by Existing Prime; and
WHEREAS, the parties hereto desire to enter into this Agreement for
the purpose of setting forth certain agreements regarding future relationships
among parties to this Agreement;
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NOW, THEREFORE, in consideration of the mutual covenants and
conditions as hereinafter set forth, the parties hereto do hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. Capitalized terms used herein and
not otherwise defined herein shall have the following meanings:
"Affiliate" of any Person means any other Person that directly or
indirectly controls, is controlled by, or is under common control with, such
Person.
"Board of Directors" means the Board of Directors of
Prime Holdings.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in the City of New York are authorized or required
by law to close.
"Closing" means the consummation of the transactions
described in Article II hereof.
"Closing Date" means the date on which the Closing pursuant to the
Stock Purchase Agreement occurs.
"Common Stock" means the common stock, par value $.01 per share, of
Prime Holdings.
"Existing Prime Shares" means all the shares of capital stock of
Existing Prime held by the Sellers.
"Offering Memorandum" means the offering memorandum dated August 13,
1996 relating to the offering of New Prime's 10-3/4% Senior Subordinated Notes
due 2004.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or other entity or a country or
government or any agency or political subdivision or instrumentality thereof or
of such subdivision.
"Preferred Stock" means the 10% Paid-in-Kind Cumulative Preferred
Stock, par value $.01 per share, of Prime Holdings.
"Securities Act" means the Securities Act of 1933, as amended.
"Transaction" means the acquisition and recapitalization of Existing
Prime as contemplated by the Stock
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Purchase Agreement together with the debt financings described in Section 2.3
hereof.
"Transfer" means to directly or indirectly sell, give, transfer,
assign, pledge, hypothecate or otherwise dispose of, or to contract or agree to
do any of the foregoing.
ARTICLE II
SUBSCRIPTION; RECAPITALIZATION
Section 2.1 Subscriptions for Common Stock and Preferred Stock. At
the Closing, the Stockholders will enter into a subscription agreement,
substantially in the form attached hereto as Exhibit A (the "Subscription
Agreement"), pursuant to which such parties will subscribe for newly issued
shares of capital stock of Existing Prime in accordance with the provisions
thereof such that, upon the repurchase by Existing Prime of all of its currently
outstanding shares of capital stock as part of the Transaction and the
effectiveness of the Amended Charter (as defined below), the Stockholders will
hold all of the then issued and outstanding shares of capital stock of Prime
Holdings.
Section 2.2 Organizational Documents.
(a) Restated Certificate of Incorporation. The parties hereto agree
that the restated certificate of incorporation of Existing Prime, substantially
in the form attached hereto as Exhibit B (the "Amended Charter"), will be filed
with the Secretary of State of the State of Delaware on the Closing Date. In
addition, on the Closing Date the certificate of incorporation of New Prime will
be amended to change its name to Prime Succession, Inc.
(b) Bylaws. The parties hereto shall, on the Closing Date, cause the
Board of Directors to adopt bylaws of Prime Holdings substantially in the form
attached hereto as Exhibit C.
Section 2.3 Debt Financing.
(a) High Yield Financing. Prior to the Closing Date, New Prime
issued $100 million aggregate principal amount of its 10-3/4% Senior
Subordinated Notes Due 2004 (the "Notes").
(b) Bank Financing. On the Closing Date, New Prime will obtain a
term loan in a principal amount of $90 million (the "Term Loan"), pursuant to an
agreement among New Prime and a syndicate of financial institutions, which
agreement shall also provide for a $25 million revolving credit facility to be
made available to New Prime.
(c) Transfer of Capital Stock and Other Assets. At the Closing, the
Stockholders shall (i) cause the filings
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referred to in subsection 2.2(a) hereof to occur (ii) cause there to be
transferred or otherwise issued to Existing Prime all the issued and outstanding
shares of New Prime and (iii) cause there to be transferred by Existing Prime to
New Prime all of the assets directly held by Existing Prime as of the time
immediately prior to the Closing.
(d) Declaration of Dividend. At the Closing, the Board of Directors
of New Prime will declare and authorize immediate payment of a dividend in an
amount equal to approximately $41.8 million (the "Intercompany Dividend"), which
amount, together with other funds to be received by Existing Prime, will enable
Existing Prime to repurchase all of its shares pursuant to the Stock Purchase
Agreement.
Section 2.4 Assignment of Rights Under the Stock Purchase Agreement;
Purchase of Shares by Existing Prime.
(a) Assignment of Rights. Prior to the Closing, New Prime assigned
all of its rights and obligations as a purchaser under the Stock Purchase
Agreement to Blackhawk Onshore Acquisition Company L.L.C. and Blackhawk Offshore
Acquisition Company L.L.C. (together, the "Assignees"). At the Closing, the
Assignees will assign to Existing Prime all of the Assignees' rights and
obligations with respect to the purchase of the Existing Prime Shares from the
Sellers pursuant to the Stock Purchase Agreement.
(b) Purchase of Existing Prime Shares. At the Closing, Existing
Prime shall repurchase the Existing Prime Shares from the Sellers pursuant to
the Stock Purchase Agreement. The aggregate net proceeds received by Existing
Prime pursuant to the Subscription Agreement and the Intercompany Dividend shall
be used by Existing Prime to pay the purchase price (the "Purchase Price") for
such Shares.
Section 2.5 Payment of Expenses by New Prime. New Prime shall use
the aggregate net proceeds of the high yield financing described in subsection
2.3(a) hereof and the Term Loan held by it after giving effect to the
Intercompany Dividend to (i) discharge the liabilities described on Schedule 1
attached hereto and (ii) for general corporate purposes including, but not
limited to, payment in accordance with Sections 5.1, 5.2 and 5.3 hereof of the
fees and expenses described therein.
ARTICLE III
RESTRICTIONS ON TRANSFER OF CAPITAL STOCK
Section 3.1 BCP, PSIM. Each of BCPII, BOCP and BFIP may, subject to
the last sentence of Section 3.3 hereof, Transfer all or part of its shares of
Common Stock to any of such Person's Affiliates, but may not Transfer such
shares to any other Person
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without the prior written consent of LGII, provided, that if LGII fails to
comply with its obligations under Section 4.1 or Article VIII of the Put/Call
Agreement (as defined below) such restriction shall lapse. Without the consent
of BCP and LGII, PSIM may not transfer shares of Common Stock to any Person.
Section 3.2 LGII. LGII may, subject to the last sentence of Section
3.3 hereof, Transfer its shares of Common Stock or Preferred Stock to any
Affiliate of LGII, but may not Transfer such shares to any other Person without
the prior written consent of BCP, provided, that LGII may and shall effect the
Transfer of such shares if so directed by BCP in accordance with Section 7.4 of
the Put/Call Agreement.
Section 3.3 Transfers Void; Conditions to Permitted Transfers. Each
Stockholder agrees that it will not Transfer any Common Stock or Preferred Stock
that such Stockholder now owns or hereafter acquires without complying with the
terms and conditions of this Agreement. Any Transfer of Common Stock or
Preferred Stock in violation of this Agreement shall be void ab initio. No
Stockholder may do indirectly, through a sale of its capital stock or otherwise,
that which is not permitted by this Section 3. No shares of Common Stock or
Preferred Stock may be Transferred or issued to any Person unless such Person,
prior to or concurrently with such Transfer or issuance, undertakes by a written
supplemental agreement to be bound by the terms of this Agreement and the
Put/Call Agreement to the same extent and in the same manner as the other
Stockholders.
Section 3.4 Put and Call Options. Notwithstanding the foregoing
provisions of this Article III, pursuant to a separate put and call agreement
entered into concurrently herewith (the "Put/Call Agreement"), LGII shall have
an option to purchase the shares of Common Stock held by BCP and PSIM, and BCP
and PSIM shall have an option to require LGII to purchase the shares of Common
Stock held by BCP and PSIM, subject, in each case, to the provisions of the
Put/Call Agreement. Transfers of Common Stock in accordance with the exercise of
the Options described in the Put/Call Agreement shall be permitted
notwithstanding anything to the contrary in Sections 3.1, 3.2 or 3.3 hereof.
Section 3.5 Redemption of Preferred Stock. Notwithstanding the
provisions of paragraphs 5 and 6 of Article Fifth of the Amended Charter, there
shall be no redemption of Preferred Stock held by LGII or its Affiliates without
the consent of LGII and BCP.
Section 3.6 Additional Issuance of Capital Stock. Except as provided
in Section 5.4 hereof and section (b) of Article Fifth of the Amended Charter,
subsequent to the Closing Date, Prime Holdings will not issue additional shares
of Common Stock or Preferred Stock without the consent of BCP and LGII.
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ARTICLE IV
GOVERNANCE
Section 4.1 Election of the Board of Directors. (a) Except as
provided below, each Stockholder shall vote all of the shares of Common Stock
owned or held of record by it so as to elect and continue in office a Board of
Directors comprised of eight directors, five of whom BCP shall have the right to
designate (the "BCP Directors") and three of whom LGII shall have the right to
designate (the "LGII Directors").
(b) If at any time that this Agreement is in effect BCP or LGII
shall notify the other of its desire to remove, with or without cause, any
director of Prime Holdings previously designated by it, each Stockholder shall
vote all of the shares of Common Stock owned or held of record by it so as to
remove such director.
(c) If at any time that this Agreement is in effect any director
previously designated by BCP or LGII ceases to serve on the Board of Directors
(whether by reason of death, resignation, removal or otherwise), the Stockholder
who designated such director shall be entitled to designate a successor director
to fill the vacancy created thereby. Each Stockholder agrees that it will vote
all of the shares of Common Stock owned or held of record by it so as to elect
such director.
(d) The provisions of this Section 4.1 shall terminate upon a sale
of Common Stock pursuant to Section 7.4 of the Put/Call Agreement.
Section 4.2 New Prime Board of Directors. Each party to this
Agreement agrees that Prime Holdings shall cause the board of directors of New
Prime to at all times consist of the same individuals who comprise the Board of
Directors of Prime Holdings.
Section 4.3 Declaration and Payment of Dividends. The parties hereto
agree to cause the Board of Directors to declare on a quarterly basis, subject
to their fiduciary duties and the provisions of the General Corporation Law of
the State of Delaware (the "GCL"), and Prime Holdings to pay on a quarterly
basis, subject to the provisions of the GCL, dividends on the Preferred Stock in
accordance with the Amended Charter.
Section 4.4 New Prime shall not make any significant changes in (i)
its current preneed cemetery sales policies or practices or (ii) its trusting or
insurance practices without the approval of its Board of Directors.
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ARTICLE V
OTHER ARRANGEMENTS
Section 5.1 Transaction Fees. If the Transaction is consummated, New
Prime shall pay on the Closing Date (a) a fee equal to $3,200,000 to Blackstone
Management Partners L.P. and (b) a consulting fee equal to $1,500,000 and a
reimbursement of expenses in the amount of $1,000,000 to LGII.
Section 5.2 Monitoring Fees. The Stockholders shall each vote their
shares of Common Stock and take such other action as may be reasonably necessary
so as to cause an annual monitoring fee in the amount of $250,000 to be paid by
Prime Holdings, annually in advance, to Blackstone Management Partners L.P. from
the Closing Date through the date on which the option of either of BCP or LGII
is exercised pursuant to the Put/Call Agreement.
Section 5.3 Other Expenses. (a) If the Transaction is consummated,
New Prime shall reimburse (i) BCP for (or otherwise pay on behalf of BCP) all
out-of-pocket expenses (including amounts paid by BCP to its professional
advisors) incurred in connection with the Transaction and (ii) LGII for amounts
payable to LGII's professional advisors in connection with the Transaction and
paid by LGII.
(b) LGII shall reimburse Prime Holdings for any withholding taxes
incurred by Prime Holdings in respect of, or related to, the dividends payable
by LGII at the time such liabilities are incurred.
Section 5.4 Additional Equity for Cure Event Purposes. (a) Following
the Closing Date, if an additional equity contribution to New Prime is necessary
to either cure or prevent an event of default under or breach of any financial
covenant contained in the credit agreement relating to New Prime's Term Loan,
BCP shall have the right to contribute 100% of such additional equity. If BCP
elects to make such a contribution, it shall give LGII written notice (the "BCP
Additional Equity Notice") to such effect and LGII shall have the right,
exercisable by written notice to BCP within five Business Days from receipt of
the BCP Additional Equity Notice, to replace (prior to BCP's making such
contribution) a portion of BCP's contribution with a contribution by LGII up to
an amount equal to the ratio (before such contributions) of the LGII
Contribution to the BCP Contribution (each as defined in the Put/Call
Agreement). If BCP elects not to make such a contribution, it shall give LGII
written notice to such effect and LGII shall have the right to contribute 100%
of such additional equity. If LGII elects to make such 100% contribution, it
shall give BCP written notice (the "LGII Additional Equity Notice") to such
effect and BCP shall have the right, exercisable by written notice to LGII
within five Business Days from receipt of the LGII Additional
8
Equity Notice, to replace (prior to LGII's making such contribution) a portion
of LGII's contribution with a contribution by BCP up to an amount equal to the
ratio (before such contributions) of the BCP Contribution to the LGII
Contribution. Such capital contributions will involve the purchase of additional
shares of Common Stock or Preferred Stock, as the case may be, and the purchase
price shall be the same price per share paid by BCP and LGII on the Closing
Date.
(b) In the event an additional equity contribution is required to be
made pursuant to subparagraph (a) of this Section 5.4, BCP, LGII and PSIM hereby
agree to vote the shares of Common Stock held by each of them to authorize the
filing of an amendment to the Amended Charter and to take all such other actions
required in order to authorize and consummate the issuance of additional shares
of capital stock of Prime Holdings in connection with such additional equity
contribution.
(c) Each party electing to make an additional equity contribution
pursuant to subparagraph (a) of this Section 5.4, whether individually or on a
pro rata basis, shall contribute such additional equity to Prime Holdings no
later than ten Business Days from the date the BCP Additional Equity Notice or
the LGII Additional Equity Notice, as the case may be, was given and, in any
event, simultaneously with the making of the contribution by the other party
electing to make such contribution (the "Additional Equity Closing Date").
(d) As of each Additional Equity Closing Date, New Prime hereby
reaffirms to BCP and/or LGII, as the case may be, that the representations and
warranties contained in Article II of the Subscription Agreement are true and
correct on such Additional Equity Closing Date in all material respects as if
made on and as of such Additional Equity Closing Date.
Section 5.5 Capital Stock of Subsidiaries. Notwithstanding the
foregoing, the parties hereby agree that Prime Holdings shall not permit any of
its director or indirect subsidiaries directly or indirectly, to issue any
shares of capital stock (other than the issuance of common stock of New Prime
pursuant to the Transaction) to any entity or person other than a wholly-owned
subsidiary of Prime Holdings.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Legend. Each certificate representing shares of Common
Stock or Preferred Stock now held or hereafter acquired by any Stockholder shall
bear the following legend (until such time as subsequent transfers thereof are
no longer restricted in accordance with the Securities Act of 1933, as amended
or this Agreement):
9
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE GIVEN,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED, OR OTHERWISE
DISPOSED OF UNLESS SUCH GIFT, SALE, ASSIGNMENT, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF
THE STOCKHOLDERS' AGREEMENT (THE "STOCKHOLDERS' AGREEMENT"), DATED
AS OF AUGUST 26, 1996, AMONG PRIME SUCCESSION HOLDINGS, INC., PRIME
SUCCESSION, INC., BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING
FUND L.P., BLACKSTONE OFFSHORE CAPITAL PARTNERS II L.P., BLACKSTONE
FAMILY INVESTMENT PARTNERSHIP II L.P., XXXXXX GROUP INTERNATIONAL
INC. AND PSI MANAGEMENT DIRECT L.P. A COPY OF THE STOCKHOLDERS'
AGREEMENT IS ON FILE WITH THE SECRETARY OF THE COMPANY. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES
LAWS OF ANY STATE, AND EXCEPT AS OTHERWISE PROVIDED IN THE
STOCKHOLDERS' AGREEMENT NO SALE, ASSIGNMENT, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND ALL APPLICABLE STATE
SECURITIES OR "BLUE SKY" LAWS OR (B) TO THE EXTENT REQUESTED BY THE
COMPANY, IF THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OF
COUNSEL WHICH SHALL BE REASONABLY SATISFACTORY TO THE COMPANY TO THE
EFFECT THAT SUCH SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION
OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF THE ACT AND
THE RULES AND REGULATIONS IN EFFECT THEREUNDER AND IS NOT IN
VIOLATION OF APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, ACKNOWLEDGES THAT IT
IS BOUND BY THE PROVISIONS OF THE STOCKHOLDERS' AGREEMENT TO THE
EXTENT PROVIDED THEREIN."
Section 6.2 Notices. Notices hereunder shall be given only by
personal delivery, registered or certified mail, return receipt requested,
overnight courier service, or telex, telegram or other form of electronic mail
or by telecopy (and subsequently confirmed by any other permitted means
hereunder) and shall be deemed transmitted when personally delivered or
deposited in the mail or delivered to a courier service or a carrier for
electronic transmittal (as the case may be), postage or charges prepaid, and
addressed to the particular party to whom the notice is to be sent as follows:
(a) in the case of Prime Holdings:
Prime Succession, Inc.
c/o The Blackstone Group
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
10
Attention: Xxxxxx X. Xxxxxx
with a copy to:
(b) in the case of BCP or PSIM:
c/o The Blackstone Group
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(c) in the case of LGII:
Xxxxxx Group International, Inc.
00 Xxxx Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Legal Department
with a copy to:
The Xxxxxx Group Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 358
Telecopier No.: (000) 000-0000
Attention: Senior Vice President and Chief Financial
Officer
or to such address as a party may instruct by notice hereunder.
Section 6.3 Severability. In the event any provision
hereof is held void or unenforceable by any court, then such provisions shall be
severable and shall not affect the remaining provisions hereof.
Section 6.4 Entire Agreement. This Agreement, together with the
other agreements referred to herein, is the entire Agreement among the parties,
and, when executed by the parties hereto, supersedes all prior agreements and
communications, either verbal or in writing (including the Amended and Restated
Term Sheet dated August 13, 1996), between the parties hereto with respect to
the subject matter contained herein.
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Section 6.5 Amendment and Waiver. This Agreement may not be amended,
modified or supplemented unless consented to in writing by the parties hereto.
Any failure by a party hereto to comply with any obligation, agreement or
condition herein may be expressly waived in writing by each of the other parties
hereto, but such waiver or failure to insist upon strict compliance with such
obligation, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any such subsequent or other failure.
Section 6.6 Consent to Specific Performance. The parties hereto
declare that it is impossible to measure in money the damages which would accrue
to a party by reason of failure to perform any of the obligations hereunder.
Therefore, if any party shall institute any action or proceeding to enforce the
provisions hereof, any party against whom such action or proceeding is brought
hereby waives any claim or defense therein that the other party has an adequate
remedy at law.
Section 6.7 Assignment. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided, no Stockholder may assign to any Person any of
its rights hereunder other than in connection with a Transfer to such Person of
shares of Common Stock or Preferred Stock in accordance with all the provisions
of this Agreement.
Section 6.8 Variations in Pronouns. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the antecedent person or persons or entity or
entities may require.
Section 6.9 Term. This Agreement shall terminate upon the earlier to
occur of (i) consummation of the exercise of the Option (as defined in the
Put/Call Agreement) pursuant to the Put/Call Agreement, without any default in
connection therewith and (ii) any date agreed upon in writing by BCP and LGII.
Section 6.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 6.11 Further Assurances. Each of the parties shall execute
such documents and other papers and take such further actions as may be
reasonably required or desirable to carry out the provisions hereof and the
transactions contemplated hereby.
Section 6.12 Headings. The headings in this Agreement are intended
solely for convenience of reference and shall be given no effect in the
interpretation of this Agreement.
Section 6.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be
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deemed an original, but all of which together shall constitute one and the same
instrument.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the date first above written.
PRIME SUCCESSION, INC. (to be
renamed Prime Succession Holdings,
Inc.)
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief
Financial Officer
XXXXXX GROUP INTERNATIONAL INC.
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President and Chief
Operating Officer
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Member
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP II L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Member
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BLACKSTONE OFFSHORE CAPITAL
PARTNERS II L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Member
PSI MANAGEMENT DIRECT L.P.
By: PSI P&S CORP.
General Partner
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President and
Treasurer
