STOCKHOLDERS' AGREEMENT
Among
ROSE HILLS HOLDINGS CORP.,
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING FUND L.P.,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ HILLS OFFSHORE CAPITAL PARTNERS L.P.,
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P.,
ROSES DELAWARE, INC.,
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
And
RHI MANAGEMENT DIRECT L.P.
________________________________
Dated as of November 19, 1996
________________________________
_________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS 2
Section 1.1 Certain Defined Terms 2
ARTICLE II
SUBSCRIPTION; FINANCINGS; 3
Section 2.1 Subscriptions for Common Stock and Preferred Stock 3
Section 2.2 Debt Financing.
(a) High Yield Financing 3
(b) Bank Financing 4
Section 2.3 RHAC 4
Section 2.4 Payment of Expenses 4
ARTICLE III
RESTRICTIONS ON TRANSFER OF CAPITAL STOCK 4
Section 3.1 BCP, ▇▇▇▇ 4
Section 3.2 ▇▇▇▇▇▇ 4
Section 3.3 Transfers Void; Conditions to Permitted Transfers 4
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 5
Section 4.1 Election of the Board of Directors 5
Section 4.2 RHAC Board of Directors 6
Section 4.3 Declaration and Payment of Dividends 6
ARTICLE V
OTHER ARRANGEMENTS 6
Section 5.1 Transaction Fees 6
Section 5.3 Other Expenses 6
Section 5.4 Additional Equity 7
Section 5.5 Contribution of Nearby Properties 8
Section 5.6 Capital Stock of Subsidiaries 9
Page
ARTICLE VI
MISCELLANEOUS 9
Section 6.1 Legend 9
Section 6.2 Notices 10
Section 6.3 Severability 11
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 12
Section 6.9 Term 12
Section 6.10 Governing Law 12
Section 6.11 Further Assurances 12
Section 6.12 Headings 12
Section 6.13 Counterparts 12
Schedule 1 - Funds Flow Memorandum
Exhibit A - Subscription Agreement
Exhibit B - Nearby Property Contribution Agreement
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of November 19, 1996
(this "Agreement"), among Rose Hills Holdings Corp., a Delaware
corporation formerly known as Tudor Holding Company ("Holdings");
Blackstone Capital Partners II Merchant Banking Fund L.P., a
Delaware limited partnership ("BCPII"); ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Hills
Offshore Capital Partners L.P., a Delaware limited partnership
("BROCP"); Blackstone Family Investment Partnership II L.P., a
Delaware limited partnership ("BFIP" and, together with BCPII,
BROCP and each of their respective permitted assigns and
transferees as provided herein, "BCP"); Roses Delaware, Inc., a
Delaware corporation ("RDI"), ▇▇▇▇▇▇ Group International, Inc., a
Delaware corporation ("LGII"), The ▇▇▇▇▇▇ Group Inc., a British
Columbia corporation (together with its successors, "LWN"; and
together with LGII, RDI, any Contributor (as defined below) and
each of their respective permitted assigns and transferees as
provided herein, "▇▇▇▇▇▇") and RHI Management Direct L.P., a
Delaware limited partnership ("▇▇▇▇"). BCP, ▇▇▇▇▇▇ and ▇▇▇▇ are
herein collectively referred to as the "Stockholders" and
individually as a "Stockholder."
WHEREAS, pursuant to an Agreement and Plan of Merger,
dated as of September 19, 1996 as amended by the amendment
thereto dated November 19, 1996 (the "Merger Agreement"), among
Roses, Inc., the stockholders of Roses, Inc., Tudor Acquisition
Corp. (which was previously renamed Rose Hills Acquisition Corp.
and which has been renamed Rose Hills Company), a wholly owned
subsidiary of Holdings ("RHAC"), and RH Mortuary Corporation, a
Delaware corporation and a wholly-owned subsidiary of RHAC
("Mortuary"), Mortuary is merging with and into Roses, Inc.;
WHEREAS, pursuant to an Asset Purchase Agreement, dated
September 19, 1996 (the "Asset Purchase Agreement" and, together
with the Merger Agreement, the "Rose Hills Agreements"), between
Rose Hills Memorial Park Association (the "Association") and
RHAC, Rose Hills, Inc., a Delaware corporation and a wholly
owned subsidiary of RHAC, as assignee of RHAC's right and
obligations under the Asset Purchase Agreement, is purchasing
certain assets and assuming certain liabilities of the
Association;
WHEREAS, at the Closing the Stockholders will subscribe
for newly issued shares of capital stock of Holdings, such that
upon the consummation of such subscription the Stockholders will
hold all of the then issued and outstanding shares of capital
stock of Holdings;
WHEREAS, the parties hereto desire to enter into this
Agreement for the purpose of setting forth certain agreements
regarding future relationships among them;
NOW, THEREFORE, in consideration of the mutual
covenants and conditions as hereinafter set forth, the parties
hereto do hereby agree as follows:
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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, and "Affiliation" shall have a
correlative meaning.
"ASA" means the Administrative Services Agreement
dated as of November 19, 1996 among RHAC, LWN and LGII.
"Board of Directors" means the Board of Directors of
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 Rose Hills Agreements occurs.
"Common Stock" means the common stock, par value $.01
per share, of Holdings, including shares of non-voting Common
Stock.
"Contribution Price" means, with respect to a Nearby
Property or Nearby Properties conveyed to Holdings pursuant to a
Nearby Property Contribution Agreement, the relevant Acquisition
Creation Price calculated with respect thereto pursuant to the
Put/Call Agreement.
"Contributor" means LWN or any of its Affiliates that
is designated as the Contributor under a Nearby Property
Contribution Agreement and which acquires shares of Non-Voting
Common Stock or Preferred Stock in accordance with the terms
thereof.
"Nearby Property Contribution Agreement" means an
agreement in the form of Exhibit B hereto with respect to the
transfer of a Nearby Property or Nearby Properties as to which
the option set forth in Section 5.5 hereof has been effectively
exercised.
"Nearby Property" means any funeral home or cemetery
that is located within a 20 mile radius of any funeral home or
cemetery then owned, operated or controlled by RHAC.
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"Non-Voting-Common Stock" means the non-voting common
stock, par value $0.01 per share, of Holdings issued pursuant to
Section 5.5 hereof in connection with the acquisition of a
funeral home or cemetery pursuant to a Nearby Property
Contribution Agreement. Such stock shall be identical in all
respects to the regular Common Stock of Holdings except that it
shall have no voting rights.
"Offering Memorandum" means the offering memorandum
dated November 14, 1996 relating to the offering of RHAC's 9 1/2%
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.
"Put/Call Agreement" means the Put/Call Agreement dated
as of November 19, 1996 among LWN and the Stockholders.
"Preferred Stock" means the 10% Paid-in-Kind Cumulative
Preferred Stock, par value $.01 per share, of Holdings.
"Securities Act" means the Securities Act of 1933, as
amended.
"Transaction" means the transactions, contemplated by
the Rose Hills Agreements together with the other transactions
described in Article II 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; FINANCINGS; ACQUISITIONS
Section 2.1 Subscriptions for Common Stock and
Preferred Stock. At the Closing, the Stockholders named therein
will enter into a subscription agreement substantially in the
form of Exhibit A (the "Subscription Agreement"), pursuant to
which such parties will subscribe for newly issued shares of
capital stock of Holdings, such that such Stockholders will hold
all of the then issued and outstanding shares of capital stock of
Holdings.
Section 2.2 Debt Financing.
(a) High Yield Financing. Prior to the Closing
Date, RHAC issued $80 million aggregate principal amount of its 9
Senior Subordinated Notes Due 2004 (the "Notes"), the
proceeds of which (after deducting the initial purchaser's
discount) are being made available to RHAC on the Closing Date.
4
(b) Bank Financing. On the Closing Date, RHAC will
obtain a term loan in a principal amount of $75 million (the
"Term Loan"), pursuant to an agreement among RHAC and a syndicate
of financial institutions, which agreement shall also provide for
a $25 million revolving credit facility to be made available to
RHAC.
Section 2.3 RHAC. At the Closing, Holdings shall
contribute the proceeds from the subscription of shares to RHAC
and will cause RHAC to make appropriate contributions of capital
and intercompany loans to its subsidiaries in order for those
subsidiaries to pay the amounts called for in the Rose Hills
Agreements.
Section 2.4 Payment of Expenses. Holdings shall
cause RHAC to use the aggregate net proceeds of the high yield
financing described in subsection 2.2(a) hereof and the Term Loan
held by it to (i) discharge the liabilities described on Schedule
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, ▇▇▇▇. Each of BCPII, BROCP 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 without the prior written consent of ▇▇▇▇▇▇,
provided, that if ▇▇▇▇▇▇ fails to comply with its obligations
under Section 4.1 or Article VIII of the Put/Call Agreement (as
defined below) or has otherwise breached the Put/Call Agreement
such restriction shall lapse. Without the consent of BCP and
LGII, ▇▇▇▇ may not transfer shares of Common Stock to any other
Person.
Section 3.2 ▇▇▇▇▇▇. ▇▇▇▇▇▇ may, subject to the last
sentence of Section 3.3 hereof, Transfer its shares of Common
Stock or Preferred Stock to any Affiliate of ▇▇▇▇▇▇, but may not
Transfer such shares to any other Person without the prior
written consent of BCP, provided, that ▇▇▇▇▇▇ 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.
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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"), ▇▇▇▇▇▇ shall have an option
to purchase the shares of Common Stock held by BCP and ▇▇▇▇, and
BCP and ▇▇▇▇ shall have an option to require ▇▇▇▇▇▇ to purchase
the shares of Common Stock held by BCP and ▇▇▇▇, 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
hereof.
Section 3.5 Redemption of Preferred Stock.
Notwithstanding the provisions of paragraphs 5 and 6 of Article
Fifth of the restated Certificate of Incorporation of Holdings,
there shall be no redemption of Preferred Stock held by ▇▇▇▇▇▇ or
its Affiliates without the consent of ▇▇▇▇▇▇ and BCP.
Section 3.6 Additional Issuance of Capital Stock.
Except as provided in Section 5.4 and 5.5 hereof, subsequent to
the Closing Date, Holdings will not issue additional shares of
Common Stock or Preferred Stock without the consent of BCP and
▇▇▇▇▇▇, and any Contributor to which such shares are issued
shall, as a condition to such issuance, execute and deliver to
the parties hereto a counterpart of the Agreement.
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 voting 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 BCPII 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 Holdings
previously designated by it, each Stockholder shall vote all of
the shares of voting 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 voting
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.
6
Section 4.2 RHAC Board of Directors. Each party to
this Agreement agrees that Holdings shall cause the board of
directors of RHAC to at all times consist of the same individuals
who comprise the Board of Directors of 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 Holdings to pay on a quarterly basis,
subject to the provisions of the GCL, dividends on the Preferred
Stock in accordance with Holdings' Certificate of Incorporation.
Section 4.4 Certain Business Practices. Holdings
shall not, and shall cause each of its direct and indirect
subsidiaries not to, make any (i) significant changes in its
current preneed cemetery or preneed funeral sales policies or
practices or its trusting, insurance or sales commission
practices other than as set forth in the Confidential Information
Memorandum, dated October 1996, prepared by ▇▇▇▇▇▇▇ Sachs or (ii)
sale or related series of sales of cemetery lots or grave sites
(collectively, "Sites") in excess of $250,000 or 100 Sites to any
one person or group of related persons without, in each case, the
approval of RHAC's Board of Directors.
ARTICLE V
OTHER ARRANGEMENTS
Section 5.1 Transaction Fees. If the Transaction is
consummated, Holdings shall pay on the Closing Date (a) a fee
equal to 1% of the Creation Price (as defined in the Put/Call
Agreement) to Blackstone Management Partners L.P. ("Blackstone")
and (b) a consulting fee equal to $1,500,000 and a reimbursement
of expenses in the amount of $1,000,000 to ▇▇▇▇▇▇. Holdings
shall pay Blackstone $2,964,800 at Closing and shall pay the
remainder of such fee to Blackstone after the final calculation
of such Creation Price.
Section 5.2 Monitoring Fees. The Stockholders shall
each vote their shares of Voting 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 Holdings
or one of its subsidiaries, 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 ▇▇▇▇▇▇ is exercised
pursuant to the Put/Call Agreement. Holdings shall reimburse BCP
for all of its expenses incurred in monitoring.
Section 5.3 Other Expenses. If the Transaction is
consummated, Holdings 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) ▇▇▇▇▇▇ for amounts
payable to ▇▇▇▇▇▇'▇ professional advisors in connection with the
Transaction and paid by ▇▇▇▇▇▇.
7
(b) ▇▇▇▇▇▇ shall reimburse Holdings for any
withholding taxes incurred by Holdings in respect of, or related
to, the dividends payable on the Preferred Stock at the time such
liabilities are incurred.
Section 5.4 Additional Equity. (a) Following the
Closing Date, if an additional equity contribution to Holdings 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 RHAC's Term Loan or the Notes, BCP shall
have the right to contribute 100% of such additional equity. If
BCP elects to make such a contribution, it shall give ▇▇▇▇▇▇
written notice (the "BCP Additional Equity Notice") to such
effect and ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ up to an amount equal to the ratio (before such
contributions) of the ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ written notice
to such effect and ▇▇▇▇▇▇ shall have the right to contribute 100%
of such additional equity. If ▇▇▇▇▇▇ elects to make such 100%
contribution, it shall give BCP written notice (the "▇▇▇▇▇▇
Additional Equity Notice") to such effect and BCP shall have the
right, exercisable by written notice to ▇▇▇▇▇▇ within five
Business Days from receipt of the ▇▇▇▇▇▇ Additional Equity
Notice, to replace (prior to ▇▇▇▇▇▇'▇ making such contribution) a
portion of ▇▇▇▇▇▇'▇ contribution with a contribution by BCP up to
an amount equal to the ratio (before such contributions) of the
BCP Contribution to the ▇▇▇▇▇▇ 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
▇▇▇▇▇▇ on the Closing Date.
(b) Following the Closing Date, if additional equity
is required (the determination that such additional equity is
required to be made by the Board of Directors) to make
acquisitions of new properties which acquisitions have been
approved by the Board of Directors, ▇▇▇▇▇▇ will have the right to
contribute 100% of such additional equity which shall be, at the
option of ▇▇▇▇▇▇, in the form of Common Stock or Preferred Stock
and the purchase price shall be the same price per share paid by
▇▇▇▇▇▇ on the Closing Date.
(c) In the event an additional equity contribution is
required to be made pursuant to subparagraph (a) or (b) of this
Section 5.4, the Stockholders hereby agree to vote the shares of
voting Common Stock held by each of them to authorize the filing
of an amendment to Holdings' Certificate of Incorporation and to
take all such other actions required in order to authorize and
consummate the issuance of the relevant number of additional
shares of capital stock of Holdings in connection with such
additional equity contribution.
(d) 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 Holdings no later than ten Business
Days from the date the BCP Additional Equity Notice or the ▇▇▇▇▇▇
Additional Equity Notice, as the case may
8
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").
(e) As of each Additional Equity Closing Date,
Holdings hereby reaffirms to BCP and/or ▇▇▇▇▇▇, 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 Contribution of Nearby Properties. (a)
In the event that prior to the Exit Relevant Period ▇▇▇▇▇▇
acquires, operates or controls, directly or through a wholly
owned subsidiary, or otherwise becomes an Affiliate of, any
Person that owns, operates or controls, directly or indirectly, a
Nearby Property or Nearby Properties, then LWN and LGII and any
Affiliate designated by them as "Contributor" for purposes of the
relevant Nearby Property Contribution Agreement shall have the
option, exercisable in their sole discretion and subject to the
terms and conditions set forth herein, to execute and deliver to
Holdings a Nearby Property Contribution Agreement covering such
Nearby Property or Nearby Properties, which Holdings shall
promptly execute and deliver to LWN, LGII and the designated
Contributor, pursuant to which Nearby Property Contribution
Agreement the relevant Contributor, shall, subject to the terms
and on the conditions of such Nearby Property Contribution
Agreement, convey all of such Nearby Property(ies) to Holdings in
exchange for newly issued shares of Non-Voting Common Stock or
Preferred Stock of Holdings (or a combination thereof as selected
by the relevant Contributor) having an aggregate value equal to
the Contribution Price as therein provided.
(b) (i) Subject to clause (ii) below, the option
provided by this Section 5.5 is exercisable only with respect to
Nearby Properties (A) acquired by LWN directly or through a
wholly owned subsidiary, or (B) owned, operated or controlled
directly or indirectly by a Person who becomes an Affiliate of
LWN; provided, that such option is exercisable in the case of
either clause (A) or (B) only if the revenues attributable to the
Nearby Properties, during the most recently calculated quarterly
accounting period prior to consummation of such acquisition
transaction or series of transactions or the date of such
Affiliation, as the case may be, constitute less than 30% of the
total revenues during the same period of all the funeral homes
and cemeteries being acquired from such seller in such
transaction or series of transactions or owned by the Person that
becomes an Affiliate of LWN, as the case may be.
(ii) This option may not be exercised with respect to
any Nearby Property that was identified by ▇▇▇▇▇▇ as an
acquisition candidate and as to which ▇▇▇▇▇▇ has provided an
appropriately complete description to RHAC, but which has been
declined to be considered or has been otherwise rejected by
RHAC's Board of Directors as a potential acquisition. In
addition, this option may not be exercised with respect to any
Nearby Property that was identified by ▇▇▇▇▇▇ as an acquisition
candidate and that, pursuant to ▇▇▇▇▇▇'▇ exclusive engagement
under Section 1.3 b. of the ASA, should have been appropriately
presented and described to RHAC but which was not so presented
and described.
9
(c) The execution and delivery to Holdings of a Nearby
Property Contribution Agreement by LWN, LGII and the relevant
Contributor with respect to any Nearby Property must occur no
later than ten months after the relevant Affiliation Date (as
defined in the ASA) in order for this option to be effective.
Section 5.6 Capital Stock of Subsidiaries.
Notwithstanding the foregoing, the parties hereby agree that,
except for the issuance to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of common stock of
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Mortuary ("Glasband") representing 5% of
Glasband's issued and outstanding Common Stock, Holdings shall
not permit any of its direct or indirect subsidiaries directly or
indirectly, to issue any shares of capital stock to any entity or
person other than a wholly-owned subsidiary of 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):
"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
NOVEMBER 19, 1996, AMONG ROSE HILLS HOLDINGS CORP.,
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING FUND L.P.,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ HILLS OFFSHORE CAPITAL PARTNERS
II L.P., BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P.,
ROSES DELAWARE, INC., ▇▇▇▇▇▇ GROUP INTERNATIONAL
INC. AND RHI 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
10
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 Holdings:
Rose Hills Holdings Corp.
c/o The Blackstone Group
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(b) in the case of BCP AND ▇▇▇▇:
c/o The Blackstone Group
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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(c) in the case of ▇▇▇▇▇▇:
▇▇▇▇▇▇ Group International, Inc.
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Attention: Legal Department
with a copy to:
The ▇▇▇▇▇▇ Group Inc.
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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 Term
Sheet dated September 18, 1996, as amended on November 13, 1996),
between the parties hereto with respect to the subject matter
contained herein.
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
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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 ▇▇▇▇▇▇.
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
deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement on the date first above written.
ROSE HILLS HOLDINGS CORP.
By: /s/ executed
Name:
Title:
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
By: /s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇
Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
ROSES DELAWARE, INC.
By: /s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇
Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING FUND L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
General Partner
By: /s/ executed
Name:
Title:
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BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
General Partner
By:____________________
Name:
Title:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ HILLS OFFSHORE CAPITAL PARTNERS L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
General Partner
By:____________________
Name:
Title:
RHI MANAGEMENT DIRECT L.P.
By: PSI P&S CORP.
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: