[CONFORMED COPY]
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of the 15th day of August, 1996, by and between Prime Succession
Acquisition Corp., a Delaware corporation (the "Company") and Xxxxx Xxxxxx Inc.
(the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated August 13,
1996, among the Company and the Initial Purchaser (the "Purchase Agreement"),
which provides for the sale by the Company to the Initial Purchaser of
$100,000,000 10 3/4% Senior Subordinated Notes due 2004 (the "Notes"). The Notes
are to be issued by the Company pursuant to the provisions of an Indenture dated
as of August 15, 1996 (as amended, supplemented or otherwise modified from time
to time, the "Indenture") between the Company and United States Trust Company of
New York, as trustee (the "Trustee").
In order to induce the Initial Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchaser and its
direct and indirect transferees the registration rights with respect to the
Notes set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time to
time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Acquisition" shall mean the recapitalization of and related purchase by
Blackstone Capital Partners II Merchant Banking Fund L.P. and its affiliates and
Xxxxxx Group International, Inc. of 100% of the capital stock of Prime
Succession, Inc., pursuant to the Stock Purchase Agreement.
"Closing Date" shall mean the later of the date of original issuance of
the Notes and the date on which the Acquisition is consummated.
"Company" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"Escrow Agreement" shall mean the Escrow Agreement by and between the
Company and the Trustee dated as of August 15, 1996.
"Exchange Date" shall have the meaning set forth in Section 2(a)(ii).
"Exchange Notes" shall mean securities issued by the Company under an
indenture and containing terms identical to the Notes except that (i) interest
thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from August 20, 1996 and (ii) the
Exchange Notes will not provide for an increase in the rate of interest and will
not contain terms with respect to transfer restrictions) and to be offered to
Holders of Notes in exchange for Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of Exchange
Notes for all Notes that are Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933 Act
effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Holder" shall mean the Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Notes under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holder" shall include Participating Broker-Dealers (as defined in Section
4(a)).
"Indenture" shall have the meaning set forth in the preamble.
"Initial Purchaser" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Notes; provided that, for purposes
of Section 6(b), whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable Notes held by
the Company or any of its affiliates (as such term is defined in Rule 405 under
the 0000 Xxx) (other than the Initial Purchaser or subsequent Holders of
Registrable Notes if such subsequent Holders are deemed to be such affiliates
solely by reason of their holding
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of such Registrable Notes) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage or
amount.
"Offer Termination Date" shall have the meaning set forth in Section
2(a)(iv).
"Participating Broker-Dealer" shall have the meaning set forth in Section
4(a) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Notes" shall mean the Notes; provided, however, that the
Notes shall cease to be Registrable Notes (i) when a Registration Statement with
respect to such Notes shall have been declared effective under the 1933 Act and
such Notes shall have been disposed of or exchanged pursuant to such
Registration Statement, (ii) upon the expiration of the Exchange Offer period
with respect to any Exchange Offer Registration Statement if all Registrable
Notes validly tendered in connection with such Exchange Offer shall have been
exchanged for Exchange Notes, (iii) when such Notes have been sold or are
eligible for sale to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the 1933 Act or (iv) when such
Notes shall have ceased to be outstanding; provided, however, that if an opinion
of counsel as described in Section 2(d)(i)(B) is delivered to the Company, then
Notes held by the Initial Purchaser shall not cease to be Registrable Notes
solely by reason of clause (ii) above.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws, (iii) all expenses of any Person in preparing or assisting in
preparing, word processing, printing and distributing, at the request of the
Company, any Registration Statement, any Prospectus, any amendments or
supplements thereto, (iv) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (v) the fees
and disbursements of the Trustee and its counsel, (vi) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the
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fees and disbursements of one counsel for the Holders incurred on or before the
initial effectiveness of the Shelf Registration Statement, which counsel shall
be counsel for the Initial Purchaser or other counsel selected by the Company
and not objected to by the Majority Holders ("counsel for the Holders"), and
(vii) the fees and disbursements of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, but excluding
underwriting discounts, if any, and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Company that covers any of the Exchange Notes or Registrable Notes pursuant to
the provisions of this Agreement and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Notes on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement dated
as of June 14, 1996, by and among Prime Succession, Inc. ("Existing Prime"), a
Delaware corporation, the sellers listed on the signature pages thereto, and The
Xxxxxx Group Inc., a corporation organized under the laws of the Province of
British Columbia and Blackhawk Acquisition Corp., a Delaware corporation.
"TIA" shall have the meaning set forth in Section 3(1) hereof.
"Trustee" shall have the meaning set forth in the preamble.
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2. Registration under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC, the Company shall use its best efforts
to cause to be filed an Exchange Offer Registration Statement covering the offer
by the Company to the Holders to exchange all of the Registrable Notes for
Exchange Notes, to have such Registration Statement remain effective until the
closing of the Exchange Offer and to consummate the Exchange Offer on or prior
to the date that is 150 days after the Closing Date. The Company shall commence
the Exchange Offer promptly after the Exchange Offer Registration Statement has
been declared effective by the SEC and use its best efforts to have the Exchange
Offer consummated not later than 30 days after such effective date. For purposes
hereof, "consummate" shall mean that the Exchange Offer Registration Statement
shall have been declared effective, subject to Section 2(b), the period of the
Exchange Offer provided in accordance with clause (ii) below shall have expired
and all Registrable Notes validly tendered and not withdrawn in connection with
such Exchange Offer shall have been exchanged for Exchange Notes. The Company
shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Notes validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period
of at least 20 days from the date such notice is mailed) (each such date
being an "Exchange Date");
(iii) that any Registrable Note not tendered will remain outstanding
and continues to accrue interest, but will not retain any rights under
this Agreement;
(iv) that Holders electing to have a Registrable Note exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Note, together with the enclosed letters of transmittal, to
the institution and at the address specified in the notice prior to the
close of business on the last Exchange Date (the "Offer Termination
Date"); and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the Offer Termination Date, by sending
to the institution and at the address specified in the notice a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Notes delivered for exchange
and a statement that such Holder is withdrawing his election to have such
Registration Notes exchanged.
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As soon as practicable after the Offer Termination Date, the Company
shall:
(A) accept for exchange Registrable Notes or portions thereof tendered and
not validly withdrawn pursuant to the Exchange Offer; and
(B) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Notes or portions thereof so accepted for exchange by the Company
and issue, and cause the Trustee to promptly authenticate and mail to each
Holder, an Exchange Note equal in aggregate principal amount to the aggregate
principal amount of the Registrable Notes surrendered by such Holder.
The Company shall use its best efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of the 1933
Act, the 1934 Act and other applicable laws and regulations in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than that the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the SEC. The Company shall inform the
Initial Purchaser of the names and addresses of the Holders to whom the Exchange
Offer is made, and the Initial Purchaser shall have the right, subject to
applicable law, to contact such Holders and otherwise facilitate the tender of
Registrable Notes in the Exchange Offer.
Each Holder participating in the Exchange Offer shall be required to
represent to the Company that at the time of the consummation of the Exchange
Offer (i) such Holder is not an "affiliate" of the Company within the meaning of
Rule 405 under the 1933 Act, (ii) the Exchange Notes being acquired by it
pursuant to the Exchange Offer are being obtained in the ordinary course of its
business and (iii) that it has no arrangement or understanding with any Person
to participate in the distribution of the Exchange Notes. If such Holder is a
Participating Broker-Dealer that will receive Exchange Notes for its own account
in exchange for the Registrable Notes that were acquired as a result of
market-making activities or other trading activities, it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes.
(b) In the event that (i) the Company determines that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be
consummated as soon as practicable after the Offer Termination Date because it
would violate applicable law or the applicable interpretations of the staff of
the SEC, (ii) the Exchange Offer is not for any other reason consummated within
150 days after the Closing Date or (iii) if the Initial Purchaser or any Holder
shall so request pursuant to the terms set forth in Section 2(d)(i)(B) below,
the Company shall use its best efforts to cause to be filed as soon as
practicable after such determination, date or notice is given to the Company, as
the case may be, a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Notes and to have such Shelf Registration
Statement declared effective by the SEC; provided, however, that
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no Holder of Registrable Notes (other than the Initial Purchaser) shall be
entitled to have the Registrable Notes held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound by all
the provisions of this Agreement applicable to such Holder. In the event the
Company is required to file a Shelf Registration Statement solely as a result of
the matters referred to in clause (iii) of the preceding sentence, the Company
shall file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all Registrable
Notes and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Notes held by the Initial Purchaser after completion of
the Exchange Offer. The Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective until 180 days from the effective
date thereof or such shorter period that will terminate when all of the
Registrable Notes covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement. The Company further agrees to
supplement or amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the 1933 Act or by any other
rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder with respect to information relating to such Holder, and
to use their best efforts to cause any such amendment to become effective and
such Shelf Registration Statement to become usable as soon as practicable
thereafter. The Company agrees to furnish to the Holders of Registrable Notes
copies of any such supplement or amendment promptly after its being used or
filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all
underwriting discounts, if any, and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes pursuant
to the Exchange Offer Registration Statement or a Shelf Registration Statement,
as the case may be.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have been effective during the period of such interference
until the offering of Registrable Notes pursuant to such Registration Statement
may legally resume. As provided herein, Additional Interest (in addition to the
interest otherwise due on the Notes after such date) shall be accrued on the
Notes as follows:
(i) (A) if an Exchange Offer Registration Statement or, in the event
that due to a change in current interpretations by the SEC the Company
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is not permitted to effect the Exchange Offer, a Shelf Registration
Statement is not filed within 60 days following the Closing Date or (B) in
the event that within 30 days after the consummation of the Exchange Offer
(the "Prescribed Time Period") any Holder or Holders of the Registrable
Notes shall notify the Company that such Holders (x) have received an
opinion of counsel to the effect that such Holder or Holders are
prohibited by applicable law or SEC policy from participating in the
Exchange Offer, (y) have received an opinion of counsel to the effect that
such Holder or Holders may not resell Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such holder or (z) are
broker-dealers and hold Registrable Notes acquired directly from the
Company or an "affiliate" of the Company, a Shelf Registration Statement
is not filed within 45 days after expiration of the Prescribed Time
Period, then, commencing on the 61st day after the Closing Date or the
46th day after the expiration of the Prescribed Time Period, as the case
may be, Additional Interest shall be accrued on the Notes over and above
the accrued interest at a rate of .50% per annum for the first 90 days
immediately following the 61st day after the Closing Date or the 46th day
after the expiration of the Prescribed Time Period, as the case may be,
such Additional Interest rate increasing by an additional .25% per annum
at the beginning of each subsequent 90-day period;
(ii) if an Exchange Offer Registration Statement or a Shelf
Registration Statement is filed pursuant to Section 2(d)(i) hereof and is
not declared effective within 120 days following the Closing Date or the
expiration of the Prescribed Time Period, as the case may be, then
commencing on the 121st day after the Closing Date or the expiration of
the Prescribed Time Period, as the case may be, Additional Interest shall
be accrued on the Registrable Notes over and above the accrued interest at
a rate of .50% per annum for the first 90 days immediately following the
121st date after the Closing Date or the expiration of the Prescribed Time
Period, as the case may be, such Additional Interest rate increasing by an
additional .25% per annum at the beginning of each subsequent 90-day
period; and
(iii) if either (A) the Company has not exchanged Exchange Notes for
all Registrable Notes validly tendered and not withdrawn in accordance
with the terms of the Exchange Offer on or prior to 30 days after the date
on which the Exchange Offer Registration Statement was declared effective,
or (B) if applicable, a Shelf Registration Statement has been declared
effective and such Shelf Registration Statement ceases to be effective
prior to 180 days from its original effective date, then, subject to
certain exceptions, Additional Interest shall be accrued on the
Registrable Notes over and above the accrued interest at a rate of .50%
per annum for the first 60 days immediately following the (x) 31st day
after such effective date, in the case of (A) above,
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or (y) the day such Shelf Registration Statement ceases to be effective in
the case of (B) above, such Additional Interest rate increasing by an
additional .25% per annum at the beginning of each subsequent 60-day
period;
provided, however, that the Additional Interest rate on the Registrable Notes
may not exceed 1.5% per annum; and provided further that (i) upon the filing of
the Exchange Offer Registration Statement or a Shelf Registration Statement (in
the case of (d) (i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement (in the case of (d)
(ii) above), or (3) upon the exchange of Exchange Notes for all Registrable
Notes validly tendered in the Exchange Offer or upon the effectiveness of the
Shelf Registration Statement which had ceased to remain effective prior to 180
days from its original effective date (in the case of (d) (iii) above),
Additional Interest on the Registrable Notes as a result of such clause (i),
(ii) or (iii) shall cease to accrue.
Any amounts of Additional Interest due pursuant to clause (i), or (ii) or
(iii) above will be payable in cash on the interest payment dates of the
Registrable Notes. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the Registrable Notes, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year composed of twelve 30-day months),
and the denominator of which is 360.
If the Company effects the Exchange Offer, the Company will be entitled to
close the Exchange Offer provided that it has accepted all Registrable Notes
theretofore validly tendered in accordance with the terms of the Exchange Offer.
Registrable Notes not tendered in the Exchange Offer shall bear interest at the
same rate as in effect at the time of issuance of the Registrable Notes.
(e) Without limiting the remedies available to the Initial Purchaser and
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damage for such injuries
precisely and that, in the event of any such failure, the Initial Purchaser or
any Holder may obtain such relief as may be required to specifically enforce the
Company's obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations, if any, of the Company with respect to
the Registration Statements pursuant to Section 2(a) and Section 2(b) hereof,
the Company shall reasonably promptly:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form shall (x) be selected by the
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Company, (y) in the case of a Shelf Registration, be available for the sale of
the Registrable Notes by the selling Holders thereof and (z) comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith, and
use their best efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the 1933 Act; and keep each
Prospectus current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Notes or Exchange Notes;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes to which such Shelf Registration Statement relates, to counsel
for the Initial Purchaser and to counsel for the Holders, without charge, one
copy of the Registration Statement and Exhibits thereto and as many copies of
each Prospectus, including each preliminary Prospectus and any amendment or
supplement thereto, requested to facilitate the public sale or other disposition
of the Registrable Notes; and the Company consents to the use of such Prospectus
and any amendment or supplement thereto in accordance with applicable law by
each of the selling Holders of Registrable Notes in connection with the offering
and sale of the Registrable Notes covered by and in the manner described in such
Prospectus or any amendment or supplement thereto in accordance with applicable
law;
(d) use their best efforts (i) to register or qualify the Registrable
Notes under all applicable state securities or blue sky laws or such
jurisdictions as any Holder of Registrable Notes covered by a Registration
Statement shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC and (ii) to cooperate
with such Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holder
to consummate the disposition in each such jurisdiction of such Registrable
Notes owned by such Holder; provided, however, that the Company shall not be
required to (A) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where they would not otherwise be required to qualify but for
this Section 3(d), (B) file any general consent to service of process or (C)
subject themselves to taxation in any such jurisdiction if they are not so
subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable
Notes, counsel for the Holders and for the Initial Purchaser (or, if applicable,
separate counsel for the Holders) and, if requested by such Persons, confirm
such
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advice in writing, (i) when a Registration Statement has become effective and
when any post-effective amendment thereto has been filed and becomes effective,
(ii) of any request by the SEC or any state securities authority for amendments
and supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if the Company receives any notification
with respect to the suspension of the qualification of the Registrable Notes for
sale in any jurisdiction or the initiation of any proceeding for such purpose,
(v) of the happening of any event during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Registration Statement or Prospectus
in order to make the statements therein not misleading and (vi) of any
determination by the Company that a post-effective amendment to a Registration
Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold and not bearing any
restrictive legends (unless required by applicable securities laws) and enable
such Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling Holders
may reasonably request at least two business days prior to the closing of any
sale of Registrable Notes;
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e)(v) hereof, use their best efforts to prepare a
supplement or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Notes, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided that the Company agrees to notify the Holders to
suspend use of the Prospectus as promptly as practicable after the occurrence of
such an event, and the Holders hereby agree to suspend use of the
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Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus, provide copies of such document to the Initial
Purchaser and its counsel (and, in the case of a Shelf Registration Statement,
counsel for the Holders) and make such of the representatives of the Company as
shall be reasonably requested by the Initial Purchaser or its counsel (and, in
the case of a Shelf Registration Statement, counsel for the Holders) available
for discussion of such document, and shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment of or
supplement to a Registration Statement or a Prospectus, of which the Initial
Purchaser and its counsel (and, in the case of a Shelf Registration Statement,
counsel for the Holders) shall not have previously been advised and furnished a
copy or to which the Initial Purchaser or its counsel (and, in the case of a
Shelf Registration Statement, counsel for the Holders) shall reasonably object
promptly in light of the circumstances;
(k) obtain a CUSIP number for all Exchange Notes or Registrable Notes (if
applicable), as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA"), in connection with the registration of the
Exchange Notes or Registrable Notes, as the case may be, cooperate with the
Trustees and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use their best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, make reasonably available for
inspection by one representative of the Holders of the Registrable Notes,
counsel for the Holders and accountants designated by the Holders and reasonably
acceptable to the Company, at reasonable times and in a reasonable manner and
subject to the execution of customary confidentiality agreements, all financial
and other records, pertinent documents and properties of the Company, and cause
the respective officers, directors and employees of the Company to supply all
information reasonably requested, and as is customary for similar due diligence
examinations, by any such representative, attorney or accountant in connection
with a Shelf Registration Statement;
(n) if reasonably requested by any Holder of Registrable Notes covered by
a Registration Statement, (i) promptly include in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as such
Holder
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reasonably requests to be included therein and (ii) make all required filing of
such Prospectus supplement or such post-effective amendment as soon as the
Company has received notification of the matters to be included in such filing;
and
(o) in the case of a Shelf Registration, if the Initial Purchaser on
behalf of the Holders shall so request, enter into such customary agreements and
take all such other reasonable actions in connection therewith (including, those
reasonably requested by counsel for the Holders) in order to expedite or
facilitate the disposition of such Registrable Notes and in such connection, (i)
to the extent possible, make such representations and warranties to the Holders
of such Registrable Notes with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents deemed
incorporated by reference, if any, in each case, in form, substance and scope as
are customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (ii) use their best efforts to obtain
opinions of counsel to the Company (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to counsel to the Holders)
addressed to each selling Holder of Registrable Notes, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii) use
their best efforts to obtain "cold comfort" letters from the independent
certified public accountants of the Company (and, if necessary, any other
certified public accountant of any subsidiary of the Company, or any business
acquired by the Company for which financial statements and financial data are or
are required to be included in the Registration Statement) addressed to each
selling Holder of Registrable Notes, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings, and (iv) deliver such documents and
certificates as may be reasonably requested by counsel for the Holders to
evidence the continued validity of the representations and warranties of the
Company made pursuant to clause (i) above and to evidence compliance with any
customary conditions in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Notes to promptly furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable Notes as the Company may from time to time reasonably request
in writing and the Company may exclude from such registration the Registrable
Notes of any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(e)(ii) through (v) hereof, such Holder will
forthwith discontinue disposition of Registrable Notes pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in its possession, other than
13
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Notes current at the time of receipt of such notice.
Each Holder agrees to indemnify the Company, the Initial Purchaser and the other
selling Holders and each of their respective officers and directors who sign the
Registration Statement and each person, if any, who controls any such person for
any losses, claims, damages and liabilities caused by the failure of such Holder
to discontinue disposition of Registrable Notes after receipt of the notice
referred to in the preceding sentence or the failure of such Holder to comply
with applicable prospectus delivery requirements with respect to any Prospectus
(including, but not limited to, any amended or supplemented Prospectus) provided
by the Company for such use.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Company understands that the staff of the SEC has taken the
position that any broker-dealer that receives Exchange Notes for its own account
in the Exchange Offer in exchange for Notes that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act in connection with any resale of such Exchange Notes
and, therefore, must deliver a prospectus meeting the requirements of the 1933
Act in connection with any resales of the Exchange Notes received by it in the
Exchange Offer.
The Company understands that it is the staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Notes, without naming
the Participating Broker-Dealers or specifying the amount of Exchange Notes
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obligation under the 1933 Act in connection
with resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Company agrees: to cause the Exchange Offer Registration
Statement to remain effective for a period 180 days after the Offer Termination
Date (or such earlier date as each Participating Broker-Dealer shall have
notified the Company in writing that such Participating Broker-Dealer has resold
all such Exchange Notes received in the Exchange Offer) and shall amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i) for such a period,
and Participating Broker-Dealers shall not be authorized by the Company to
deliver and shall not deliver such Prospectus after such period in connection
with the resales contemplated by this Section 4.
(c) The Initial Purchaser shall have no liability to the Company or any
Holder for costs and expenses of the Exchange Offer Registration with respect to
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any request that they make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) In the event of a Shelf Registration Statement or in connection with
any prospectus delivery pursuant to an Exchange Offer Registration Statement by
a Participating Broker-Dealer or the Initial Purchaser, as applicable, the
Company agrees to indemnify and hold harmless the Initial Purchaser, each Holder
and each Person, if any who controls the Initial Purchaser or any Holder within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act,
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto pursuant to which Exchange
Notes or Registrable Notes were registered under the 1933 Act, including all
documents incorporated therein by reference), or arising out of or based upon
any omissions or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, or
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or arising
out of or based upon any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any 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 relating to such Holder furnished in writing to the Company
by or on behalf of any Holder expressly for use in connection therewith
("Initial Purchaser's Information"); provided, however, that the indemnification
contained in this paragraph (a) with respect to such Registration Statement or
Prospectus shall not inure to the benefit of any Holder or any such controlling
person on account of any such loss, claim, damages or liabilities caused by the
failure of such person to discontinue disposition of Registrable Notes after
receipt of the notice referred to in the final paragraph of Section 3 hereof;
provided, further, that with respect to any such untrue statement or omission
made in any preliminary prospectus, the indemnity agreement contained in this
Section 5(a) shall not enure to the benefit of any indemnified person from whom
the person asserting any such loss, claim, damage or liability received
Registrable Notes or Exchange Notes if such persons did not receive a copy of
the final prospectus at or prior to the confirmation of the sale of such
Registrable Notes or Exchange Notes to such person in any case where such
delivery is required by the 1993 Act and the untrue statement or omission was
corrected in the final prospectus unless such failure to deliver the final
prospectus was a result of noncompliance by the Company with Sections 4(c) and
4(g).
15
(b) If any action, suit or proceeding shall be brought against an Holder
or any person controlling any Holder in respect of which indemnity may be sought
against the Company, such Holder or such controlling person shall promptly
notify the Company in writing thereof, and the Company shall be entitled to
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. If the Company so assumes the defense, such Holder shall
use all reasonable best efforts to cooperate with the Company in the defense of
such action, suit or proceeding. Such Holder or any such controlling person
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Holder or such controlling
person unless (i) the Company has agreed in writing to pay such fees and
expenses, (ii) the Company has failed to assume the defense and employ counsel
within a reasonable time after notice of the commencement of such action, suit
or proceeding is received, or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both such Holder or such
controlling person and the Company and such Holder or such controlling person
shall have been advised by its counsel in writing that representation of such
indemnified party and the Company 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 Company shall not have the
right to assume the defense of such action, suit or proceeding on behalf of such
Initial Purchaser or holder or such controlling person). It is understood,
however, that the Company shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys at any time for all such Holders and controlling persons, which firm
shall be designated in writing by Xxxxx Xxxxxx Inc. The Company shall not be
liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless any Holder and any
such controlling person from and against any loss, claim, damage, liability or
expense by reason of settlement or judgment, to the extent provided in the
preceding paragraph.
(c) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, each of its directors and officers, and any person who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20(a) of the 1934 Act, to the same extent as the foregoing indemnity from the
Company to each Holder, but only with respect to the Initial Purchaser's
Information. If any action, suit or proceeding shall be brought against the
Company, any of its directors or officers, or any such controlling persons based
on any Registration Statement (or any amendment thereto) or any prospectus (or
any amendment or supplement thereto), and in respect of which indemnity may be
sought against any
16
Holder pursuant to this paragraph (c), such Holder shall have the rights and
duties given to the Company by paragraph (b) above (except that if the Company
shall have assumed the defense thereof such Holder 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 Holder's
expense), and the Company, its directors and officers, and any such controlling
persons shall have the rights and duties given to the Holders by paragraph (b)
above.
(d) If the indemnification provided for in this Section 5 is unavailable
to an indemnified party under paragraphs (a) or (c) hereof 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 in such proportion as
is appropriate to reflect the relative fault of the Company on the one hand and
the Holders 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 fault of the
Company on the one hand and the Holders 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 on the one hand or by the Holders
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above 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 5, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Notes were
sold by such Holder exceeds the amount of any damages that such Holder 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 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 5 are several in proportion to the number of Notes purchased by such
Holder and not joint.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or
17
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability or claims that are the subject matter of such action,
suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses (including
counsel fees pursuant to paragraph (b) above) for which an indemnified party is
entitled to indemnification or contribution under this Section 5 shall be paid
by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 5 shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of any
Holder or any person controlling any Holder, the Company's directors or officers
or any person controlling the Company, (ii) acceptance of any Exchange Notes and
(iii) any sale of Registrable Notes pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into, and on
or after the date of this Agreement will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding Registrable Notes;
provided, however, that no departure from the provisions of Section 5 hereof
shall be effective as against any Holder of Registrable Notes unless consented
to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Initial Purchaser,
the address set forth in the Purchase Agreement; and (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c).
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All such notices and communications shall be deemed to have been duly
given at the time delivered, if personally delivered; five business days after
being deposited in the mail, postage pre-paid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next business
day if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment or assumption, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms of the Purchase Agreement. If any transferees of
any Holder shall acquire Registrable Notes, in any manner, whether by operation
of law or otherwise, such Registrable Notes, shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Notes such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such person shall be
entitled to receive the benefits hereof. The Initial Purchaser shall have no
liability or obligation to the Company with respect to any failure by a Holder
(other than the Initial Purchaser) to comply with, or any breach by any Holder
of, the obligations of such Holder under this Agreement.
(e) Third Party Beneficiary. The Holders (with the exception of the
Initial Purchaser) shall be third party beneficiaries to the agreements made
hereunder between the Company and the Initial Purchaser and shall have the right
to enforce such agreement directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by laws of the
State of New York.
(i) Severability. In the event that one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every
19
other respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(j) Termination. This Agreement shall terminate upon the redemption of
the Notes pursuant to the terms of the Escrow Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PRIME SUCCESSION ACQUISITION CORP.
By:/s/ Xxxxx Xxxxxx
----------------
Title: Chief Financial Officer, Secretary, Treasurer
Confirmed and accepted as of
the date first above written:
XXXXX XXXXXX INC.
By:/s/ Xxxxxxx Del Giudice
-----------------------
Title: Vice President
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