<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1996
REGISTRATION NO. 333-14599
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
PRIME SUCCESSION, INC.
(FORMERLY KNOWN AS PRIME SUCCESSION ACQUISITION CORP.)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7261 13-3904211
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION INDUSTRIAL IDENTIFICATION NUMBER)
OF INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
------------------------
691 TEKULVE ROAD
BATESVILLE, INDIANA 47006
(812) 933-0222
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
GARY L. WRIGHT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PRIME SUCCESSION, INC.
691 TEKULVE ROAD
BATESVILLE, INDIANA 47006
(812) 933-0222
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Copies to:
WILSON S. NEELY, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the 'DGCL') provides
for, among other things:
a. permissive indemnification for expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by designated
persons, including directors and officers of a corporation, in the event
such persons are parties to litigation other than stockholder derivative
actions if certain conditions are met;
b. permissive indemnification for expenses actually and reasonably
incurred by designated persons, including directors and officers of a
corporation, in the event such persons are parties to stockholder
derivative actions if certain conditions are met;
c. mandatory indemnification for expenses actually and reasonably
incurred by designated persons, including directors and officers of a
corporation, in the event such persons are successful on the merits or
otherwise in litigation covered by a. and b. above; and
d. that the indemnification provided for by Section 145 shall not be
deemed exclusive of any other rights which may be provided under any
by-law, agreement, stockholder or disinterested director vote, or
otherwise.
The Company's By-Laws provide that:
'Section 1. Indemnity Undertaking. To the fullest extent permitted by
law (including, without limitation, Section 145 of the General Corporation
Law of the State of Delaware (as amended from time to time, the 'General
Corporation Law')), the Corporation shall indemnify any person who is or
was made, or threatened to be made, a party to any threatened, pending or
completed action, suit or proceeding (a 'Proceeding'), whether civil,
criminal, administrative or investigative, including, without limitation,
an action by or in the right of the Corporation to procure a judgment in
its favor, by reason of the fact that such person, or a person of whom such
person is the legal representative, is or was a Director or officer of the
Corporation, or is or was serving in any capacity at the request of the
Corporation for any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise (an 'Other Entity'), against
judgments, fines, penalties, excise taxes, amounts paid in settlement and
costs, charges and expenses (including attorneys' fees and disbursements).
Persons who are not Directors or officers of the Corporation may be
similarly indemnified in respect of service to the Corporation or to an
Other Entity at the request of the Corporation to the extent the Board of
Directors at any time specifies that such persons are entitled to the
benefits of this [Article].
Section 2. Advancement of Expenses. The Corporation shall, from time
to time, reimburse or advance to any Director or officer or other person
entitled to indemnification hereunder the funds necessary for payment of
expenses, including attorneys' fees and disbursements, incurred in
connection with any Proceeding, in advance of the final disposition of such
Proceeding; provided, however, that, if required by the General Corporation
Law, such expenses incurred by or on behalf of any such Director, officer
or other person may be paid in advance of the final disposition of a
Proceeding only upon receipt by the Corporation of an undertaking, by or on
behalf of such Director, officer or other person indemnified hereunder, to
repay any such amount so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right of appeal that
such Director, officer or other person is not entitled to be indemnified
for such expenses.
Section 3. Rights Not Exclusive. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant
to, this [Article] shall not be deemed exclusive of any other rights which
a person seeking indemnification or reimbursement or advancement of
expenses may have or to which such person hereafter may be entitled under
any statute, the Restated Certificate of Incorporation, these By-Laws, any
agreement, any vote of stockholders or disinterested Directors or
otherwise, both as to action in his or her official capacity and as to
action in another capacity while holding such office.
II-1
<PAGE>
Section 4. Continuation of Benefits. The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted
pursuant to, this [Article] shall continue as to a person who has ceased to
be a Director or officer (or other person indemnified hereunder) and shall
inure to the benefit of the executors, administrators, legatees and
distributees of any such person.
Section 5. Insurance. The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a Director, officer, employee
or agent of an Other Entity, against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions
of this [Article] or the Restated Certificate of Incorporation or under
Section 145 of the General Corporation Law or any other provision of law.
Section 6. Binding Effect. The provisions of this [Article] shall be
a contract between the Corporation, on the one hand, and each Director and
officer who serves in such capacity at any time while this [Article] is in
effect and/or any other person indemnified hereunder, on the other hand,
pursuant to which the Corporation and each such Director, officer or other
person intend to be legally bound. No repeal or modification of this
[Article] shall affect any rights or obligations with respect to any state
of facts then or theretofore existing or thereafter arising or any
proceeding theretofore or thereafter brought or threatened based in whole
or in part upon any such state of facts.
Section 7. Procedural Rights. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant
to, this [Article] shall be enforceable by any person entitled to such
indemnification or reimbursement or advancement of expenses in any court of
competent jurisdiction. The burden of providing that such indemnification
or reimbursement or advancement of expenses is not appropriate shall be on
the Corporation. Neither the failure of the Corporation (including its
Board of Directors, its independent legal counsel and its stockholders) to
have made a determination prior to the commencement of such action that
such indemnification or reimbursement or advancement of expenses is proper
in the circumstances nor an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel and its
stockholders) that such person is not entitled to such indemnification or
reimbursement or advancement of expenses shall constitute a defense to the
action or create a presumption that such person is not so entitled. Such a
person shall also be indemnified for any expenses incurred in connection
with successfully establishing his or her right to such indemnification or
reimbursement or advancement of expenses, in whole or in part, in any such
proceeding.
Section 8. Service Deemed at Corporation's Request. Any Director or
officer of the Corporation serving in any capacity (a) another corporation
of which a majority of the shares entitled to vote in the election of its
directors is held, directly or indirectly, by the Corporation or (b) any
employee benefit plan of the Corporation or any corporation referred to in
clause (a) shall be deemed, in each case, to be doing so at the request of
the Corporation.
Section 9. Election of Applicable Law. Any person entitled to be
indemnified or to receive reimbursement or advancement of expenses as a
matter of right pursuant to this [Article] may elect to have the right to
indemnification or reimbursement or advancement of expenses interpreted on
the basis of the applicable law in effect at the time of the occurrence of
the event or events giving rise to the applicable Proceeding, to the extent
permitted by law, or on the basis of the applicable law in effect at the
time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the
Corporation, at the time indemnification or reimbursement or advancement of
expenses is sought; provided, however, that if not such notice is given,
the right to indemnification or reimbursement or advancement of expenses
shall be determined by the law in effect at the time indemnification or
reimbursement or advancement of expenses is sought.'
The directors and officers of the Company are insured against certain civil
liabilities, including liabilities under federal securities laws, which might be
incurred by them in such capacity.
II-2
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES
(a) See Index to Exhibits.
(b) All schedules are omitted as the required information is presented in
the registrants' consolidated financial statements or related notes or such
schedules are not applicable.
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offer or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the 'Securities Act');
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if total dollar
value of securities offered would not exceed that which was registered)
and any deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the 'Calculation of Registration
Fee' in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering;
(4) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the Registration Statement through the date of responding
to the request; and
(5) To supply by means of a post-effective amendment all information
concerning the Exchange Offer that was not the subject of and included in
the Registration Statement when it became effective.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 20 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Batesville,
Indiana, on November 1, 1996.
PRIME SUCCESSION, INC.
(formerly known as Prime Succession
Acquisition Corp.)
By: /s/ MYLES S. CAIRNS
-------------------------------------
Chief Financial Officer,
Secretary and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------ ------------------------------------------ ------------------
<S> <C> <C>
* President, Chief Executive Officer November 1, 1996
- ------------------------ (principal executive officer) and Director
Gary L. Wright
/s/ MYLES S. CAIRNS Chief Financial Officer, Secretary and November 1, 1996
- ------------------------ Treasurer (principal financial officer;
Myles S. Cairns principal accounting officer)
* Director November 1, 1996
- ------------------------
Warren B. Rudman
* Director November 1, 1996
- ------------------------
Howard A. Lipson
* Director November 1, 1996
- ------------------------
John R. Woodard
* Director November 1, 1996
- ------------------------
Chinh E. Chu
* Director November 1, 1996
- ------------------------
Peter K. Grunebaum
* Director November 1, 1996
- ------------------------
Clifford R. Hinkle
*By: /s/ MYLES S. CAIRNS
--------------------
Myles S. Cairns
Attorney-In-Fact
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
- -------- -----------------------------------------------------------------------
<S> <C>
2+ -- Stock Purchase Agreement, dated as of June 14, 1996, by and among
Prime Succession, Inc., the individuals or entities listed on the
signature pages thereof, The Loewen Group Inc. and Blackhawk
Acquisition Corp.
3.1+ -- Certificate of Incorporation of Blackhawk Acquisition Corp.
3.2+ -- Certificate of Amendment of Certificate of Incorporation of
Blackhawk Acquisition Corp. changing its name to Prime Succession
Acquisition Corp.
3.3+ -- Certificate of Amendment of Certificate of Incorporation of Prime
Succession Acquisition Corp. changing its name to Prime Succession,
Inc.
3.4+ -- By-Laws of Prime Succession, Inc.
4.1+ -- Indenture dated as of August 15, 1996 between Prime Succession
Acquisition Corp. and United States Trust Company of New York, as
Trustee
4.2+ -- Form of 10 3/4% Senior Subordinated Note due 2004 (included in
Exhibit 4.1)
5+ -- Opinion of Simpson Thacher & Bartlett
10.1(a)* -- Casket Supply Agreement, dated January 1, 1993, between Batesville
Casket Company, Inc. and Prime Succession, Inc.
10.1(b)* -- Amendment Agreement, dated August 1994, between Batesville Casket
Company, Inc. and Prime Succession, Inc. (with respect to Casket
Supply Agreement)
10.1(c)* -- Amendment 2, dated May 22, 1995, between Batesville Casket Company,
Inc. and Prime Succession, Inc. (with respect to Casket Supply
Agreement)
10.2+ -- Stockholders' Agreement dated as of August 26, 1996 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
Loewen Group International, Inc.
10.3+ -- Administrative Services Agreement dated as of August 26, 1996
between Prime Succession Acquisition Corp. (to be renamed Prime
Succession, Inc.) and Loewen Group International, Inc.
10.4+ -- Credit Agreement dated as of August 26, 1996 among Prime Succession,
Inc. (to be renamed Prime Succession Holdings, Inc.), Prime
Succession Acquisition Corp. (to be renamed Prime Succession, Inc.),
Goldman, Sachs & Co., as syndication agent and arranging agent, the
financial institutions from time to time parties thereto as lenders
and The Bank of Nova Scotia, as administrative agent for such
lenders
10.5+ -- Letter Agreement dated August 1, 1996 between Prime Succession
Acquisition Corp. (to be renamed Prime Succession, Inc.) and Gary
Wright
10.6+ -- Letter Agreement dated August 1, 1996 between Prime Succession
Acquisition Corp. (to be renamed Prime Succession, Inc.) and Myles
Cairns
12+ -- Computation of Ratio of Earnings to Fixed Charges
21+ -- Subsidiaries of Prime Succession, Inc. (formerly known as Prime
Succession Acquisition Corp.)
23.1+ -- Consent of Simpson Thacher & Bartlett (included in Exhibit 5)
23.2+ -- Consent of Ernst & Young LLP (independent auditors prior to the
Acquisition)
24+ -- Power of Attorney (included on page II-4 of the Registration
Statement)
25+ -- Statement of Eligibility on Form T-1 of United States Trust Company
of New York
27+ -- Financial Data Schedule
99.1+ -- Registration Rights Agreement dated as of August 15, 1996 between
Prime Succession Acquisition Corp. and Smith Barney Inc.
99.2+ -- Form of Letter of Transmittal
99.3+ -- Form of Notice of Guaranteed Delivery
</TABLE>
- ------------------
*Filed herewith.
+Previously filed.
<PAGE>
EXHIBIT 10.1(a)
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 under the Securities Act of 1933, as amended.
Batesville Casket Company, Inc.
CASKET SUPPLY AGREEMENT
VALUE PLUS
AGREEMENT, made between Batesville Casket Company, Inc. an Indiana Corporation
("Batesville"), and, Prime Succession with its principal location at 691 Tekulve
Avenue, referred to hereafter as ("Funeral Director"), to become effective
beginning with the 1st day of January, 1993.
1. Funeral Director, recognizing Batesville's delivery and consistency of
supply capabilities, agrees to establish an initial inventory ("Initial
Inventory") and to make available for resale no less than * Batesville
Caskets purchased from Batesville within 60 days from the date hereof.
Funeral Director may increase the number of Batesville Caskets in the
Initial Inventory at any time, but in any event, agrees to make available
for resale no less than * Batesville Caskets throughout the term of this
Agreement.
2. Each Batesville Casket purchased from Batesville during the term hereof
will be invoiced on a monthly statement at terms of * % discount if
payment is received by the 15th of the month following the month of
delivery, or net * days. Funeral Director agrees to pay such invoices
pursuant to such term; or such other terms upon which Funeral Director and
Batesville mutually agree. Funeral Director agrees to pay a service charge
as shown on this monthly statement from Batesville Casket Co., Inc., on
all invoices that are past due.
3. Within 30 days after each anniversary date of this Agreement, Batesville
agrees to pay Funeral Director a rebate based on Funeral Director's
purchases from Batesville during each contract year of this Agreement. The
rebate will be based on the schedules attached hereto. Batesville retains
the right to apply any rebate payment to any past due balance owing
Batesville.
4. Funeral Director agrees that Batesville or its authorized representative
may verify, on a monthly basis, that the Initial Inventory level remains
available for resale. In the event the Initial Inventory falls below the
agreed level, this Agreement shall terminate immediately and further
purchases of Batesville Caskets shall be pursuant to Batesville's standard
terms.
5. Funeral Director shall be named as an additional insured on Batesville's
$5,500,000 Products Liability Insurance Policy with respect to occurrences
during the policy period as defined by Batesville's policies of insurance
relating to any manufacturing defects in products manufactured by and
purchased from Batesville. Coverage shall exist under and pursuant to the
terms of the policies, provided the Funeral Director:
a. displays the Batesville warranty certificate provided with each
Batesville casket prominently therewith in the selection room or
makes the warranty certificate available to clients as required by
law; and
b. Presents said warranty certificate to such clients at the time of
rendering the service statement; and
c. Uses reasonable care in handling of Batesville caskets while under
Funeral Director's control; and
d. Upon an occurrence:
i. Notifies Batesville immediately; and
ii. Gives Batesville and/or the insurer full and complete
control over the disposition of any claim arising out of the
occurrence, including the right to defend or settle on behalf of
Batesville and Funeral Director, and
iii. Cooperates fully with Batesville and/or the insurer in all
matters respecting any claims.
Coverage shall not apply to any product manufactured by others
notwithstanding its sale by Batesville.
6. This Agreement shall continue in force until terminated by either party
upon 30 days written notice. This Agreement may not be assigned by Funeral
Director without express written consent of Batesville and shall be
construed according to the laws of the State of Indiana.
* See Attached
BATESVILLE CASKET COMPANY, INC. Prime Succession
FUNERAL ESTABLISHMENT:
/s/ Michael DiBease /s/Thomas Johnson
- ------------------------------- ------------------------------
By: By:
1/1/93 1/1/93
- ------------------------------- ------------------------------
Date: Date:
<PAGE>
BATESVILLE'S VALUE PLUS REBATE PROGRAM (ADDENDUM)
Prime Successions' participation in Batesville Casket Company's Value Plus
Rebate Program is conducted through the funeral homes and/or related businesses,
corporations, etc., acquired by Prime Succession. Therefore, Batesville Casket
Company recognizes all of Prime Successions' businesses, that are at or above
80% floor representation, and the purchases of Batesville caskets by those
businesses, to be combined for an annual rebate.
The purpose of this addendum is to state the procedures that will occur if and
when a business is acquired in the middle of the rebate period. Some businesses
that are acquired may already be participating in Batesville's Value Plus Rebate
Program. If indeed this is the case, then the following guidelines will take
effect:
All purchases made by the acquired business, during it's respective rebate
period, will be included into the Prime Succession Rebate Contract, as
well as all purchases forward from date of the acquisition to the end of
Prime Succession's Rebate period, if the firm acquired is at or above the
80% floor representation level.
On the other hand, if the acquired firm is not participating in Batesville's
Value Plus Rebate program, then the following procedure will take place:
Only those purchases of Batesville caskets that are billed out after the
acquisition date will count towards Prime Successions' annual rebate, if
indeed that funeral home is at or above the 80% floor representation
level.
o Firms below the 80% level will stand alone for rebate purposes.
o Any rebates owed to former owners will be handled by Prime
Succession accordingly.
<PAGE>
CASKET SUPPLY AGREEMENT
FLOOR PERCENTAGE TERMS
[ ]
<PAGE>
BATESVILLE CASKET COMPANY, INC.
CASKET SUPPLY AGREEMENT
REBATE SCHEDULE
The rebate will be determined from the average wholesale price of all caskets
purchased from Baresville under this agreement multiplied by the number of
caskets purchased times the applicable rebate percentage shown below.
BATESVILLE CASKETS
PURCHASED REBATE PERCENTAGE
------------------ -----------------
[ ] [ ]
<PAGE>
EXHIBIT 10.1(b)
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 under the Securities Act of 1933, as amended.
AMENDMENT TO
CASKET SUPPLY AGREEMENT
This Amendment to the Casket Supply Agreement is made between Batesville Casket
Company, Inc. (BCC) and Prime Succession, Inc. (Prime).
Whereas BCC and Prime have entered into a Casket Supply Agreement (Agreement)
which allows Prime, through its wholly owned subsidiaries, to purchase caskets
from Batesville.
Whereas the parties desire to amend certain provisions of said Agreement.
Therefore, in mutual consideration, the parties agree as follows:
1. [ ]
2. [ ] Subsequent purchase orders shall be subject to the Value Plus
terms as set forth in the Agreement.
3. Prime may apply its Value Plus discount to any amount which is to be
paid before August 26, 1995.
4. All other terms and conditions shall remain in full force and
effect.
Prime Succession, Inc. Batesville Casket Company, Inc.
By: /s/ Thomas Johnson By: /s/ Michael DiBease
------------------------- ------------------------------
Title: President Title: Vice President - National
Markets
<PAGE>
EXHIBIT 10.1(c)
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 under the Securities Act of 1933, as amended.
AMENDMENT 2 TO
CASKET SUPPLY AGREEMENT
This Amendment to a certain Casket Supply Agreement is made between Batesville
Casket Company, Inc., ("BCC") and Prime Succession, Inc. ("Prime").
Whereas, BCC and Prime have entered into a Casket Supply Agreement dated January
1, 1992 ("Agreement"), which Agreement was amended in August, 1994.
Whereas, the parties desire to further amend certain provisions of said
Agreement under the following terms and conditions.
Therefore, in consideration of the mutual promises and obligations set forth
herein, the parties agree as follows:
1. It is agreed between the parties that, as of March 31, 1995, [ ].
2. It is further agreed between the parties that as of March 31, 1995, [ ].
<PAGE>
2
3. BCC agrees that purchases of caskets, on and after April 1, 1995, and
throughout the term of this Agreement, shall be subject to a [ ]% discount
if payment is made by the fifteenth of the month following delivery.
4. In the event of default in payment of any said amounts due or of any other
amount owed to BCC, [ ] at the sole election of BCC. In the event of a
default, BCC shall be entitled to offset the amount due, or any other
amount owed to BCC, by any unpaid rebate amount to which Prime would be
otherwise entitled.
5. Commencing April 1, 1995, and continuing through March 31, 2000, Prime
covenants to purchase caskets exclusively from BCC. This covenant shall be
construed to mean that Prime, through the funeral homes it owns as of
April 1, 1995, and through any funeral home it may acquire and/or operate
or manage through March 31, 2000, shall purchase caskets solely from BCC.
Caskets shall include those models BCC currently offers for sale or may
offer for sale through March 31, 2000. Since BCC does not offer cloth and
non-protective steel caskets, Prime may purchase such casket from another
source. If, however, at any time during the term of this Amendment, BCC
offers cloth and/or non-protective steel caskets on a competitive basis,
Prime agrees to purchase such caskets from BCC. If a customer of one of
Prime's funeral homes has a pre-need contract dated prior to April 1,
1995, in which a casket manufactured by someone other than BCC is
designated, Prime may purchase such casket from such other manufacturer
solely for the purpose of completing such pre-need contract. If a customer
of one of Prime's funeral
<PAGE>
3
homes has a pre-need contract, regardless of the date, which contains only
a generic reference to a casket, and BCC competitively offers such casket,
Prime agrees to purchase such casket from BCC.
6. Prime grants to BCC access to its corporate records, and those of its
funeral homes, in order to verify the exclusivity of purchases. BCC shall
conduct such verification during normal business hours at its own expense
upon 24 hours notice to Prime of its desire to examine said records.
7. In the event BCC determines that Prime has breached its covenant to
purchase caskets exclusively from BCC, [ ] BCC shall be entitled to seek
all remedies at law or in equity to which it is entitled as a result of
such breach, as well as interest from the date of said breach in the
amount of 9% annum.
8. The Agreement and all addenda thereto shall be binding upon any successor
of Prime pursuant to any merger, consolidation, sale of all or
substantially all of its assets, or through any other change in the legal
identity of Prime during the period contemplated herein. In addition,
<PAGE>
4
Prime shall use its reasonable best efforts to assure that conversion of
Prime to any other legal entity will not result in the reduction of casket
purchases from BCC by any successor entity to Prime.
9. In the event Prime decides to make a public offering of stock or debt,
Prime agrees, no later than 6 months before said offering, to notify BCC
of its intention to make such offering. Prime further agrees, on or before
the earlier of the date Prime files a registration statement with the
Securities and Exchange Commission (SEC) or otherwise would be required to
publicly disclose the terms of this Agreement, [ ].
10. The first sentence of paragraph 6 of the Agreement, which states "This
Agreement shall continue in force until terminated by either party upon 30
days written notice" is deleted and replaced with the following:
"This Agreement shall continue in force until March 31, 2000. Thereafter,
either party may terminate the Agreement by giving the other party 30 days
written notice of its intent to terminate."
11. The Amendment to the Casket Supply Agreement, which was executed in
August, 1994, [ ] is superseded by this Amendment 2.
<PAGE>
5
12. The terms of the Agreement and all addenda shall be kept confidential by
both parties and may be disclosed only to those employees on a need to
know basis.
13. All other terms and conditions of the Agreement are hereby ratified and
shall remain in full force and effect.
Dated at Batesville, Indiana, this 22 day of May, 1995.
Prime Succession, Inc. Batesville Casket Company, Inc.
By: Thomas Johnson By: Michael DiBease
------------------------- ------------------------
Title: President Title: Vice President National
Markets
Date: 5/22/95 Date: 5/23/95
MR:re
