<PAGE> 1
Filed Pursuant to Rule 424(b)(5)
Registration Nos. 033-56069; 033-56069-01
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* *
* Information contained in this preliminary prospectus supplement is *
* subject to completion or amendment. A registration statement relating *
* to these securities has been filed with the Securities and Exchange *
* Commission. These securities may not be sold nor may offers to buy be *
* accepted prior to the time that a final prospectus supplement is *
* delivered. This preliminary prospectus supplement and the *
* accompanying prospectus shall not constitute an offer to sell or the *
* solicitation of an offer to buy nor shall there be any sale of these *
* securities in any State in which such offer, solicitation or sale *
* would be unlawful prior to registration or qualification under the *
* securities laws of any such State. *
* *
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PROSPECTUS SUPPLEMENT SUBJECT TO COMPLETION
(To Prospectus dated November 1, 1994) NOVEMBER 3, 1994
</TABLE>
7,700,000 Shares
[SERVICE CORPORATION INTERNATIONAL LOGO]
SERVICE CORPORATION INTERNATIONAL
Common Stock
(par value $1 per share)
Of the 7,700,000 shares of Common Stock, $1 par value (the "Common Stock" or the
"SCI Common Stock"), of Service Corporation International, a Texas corporation
(the "Company"), offered hereby, 5,390,000 shares initially are being offered in
the United States and Canada (the "United States Offering") by the U.S.
Underwriters (the "U.S. Underwriters") and 2,310,000 shares initially are being
offered outside the United States and Canada (the "International Offering" and,
together with the United States Offering, the "Offering" or the "Common Stock
Offering") by the International Managers (the "International Managers" and,
together with the U.S. Underwriters, the "Underwriters"). The offering price and
underwriting discount for the United States Offering and the International
Offering are identical. See "Underwriting."
The Common Stock is listed on the New York Stock Exchange ("NYSE") under the
symbol "SRV." On November 2, 1994, the reported last sale price of the Common
Stock on the NYSE was $26.625 per share.
Concurrently with the Offering, SCI Finance LLC, a subsidiary of the Company, is
offering an aggregate of up to 3,450,000 $ Term Convertible Shares, Series
A ("TECONS"*), pursuant to a separate prospectus supplement. The TECONS will be
convertible into Common Stock initially at a conversion rate of shares of
Common Stock for each TECONS.
SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
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Per Share $ $ $
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Total(3) $ $ $
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(1) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
See "Underwriting."
(2) Before deducting expenses payable by the Company estimated at $436,000.
(3) The Company has granted the U.S. Underwriters an option, exercisable within
30 days after the date of this Prospectus Supplement, to purchase up to an
additional 1,155,000 shares of Common Stock on the same terms as set forth
above, solely to cover over-allotments, if any. If such over-allotment option is
exercised in full, the total Price to Public, Underwriting Discount and Proceeds
to Company will be $ , $ and $ , respectively. See
"Underwriting."
The shares of Common Stock offered by this Prospectus Supplement are being
offered by the U.S. Underwriters, subject to prior sale, when, as and if
delivered to and accepted by the U.S. Underwriters, and subject to approval of
certain legal matters by Cahill Gordon & Reindel, counsel for the Underwriters,
and certain other conditions. It is expected that delivery of the certificates
representing the shares of Common Stock will be made against payment therefor on
or about December , 1994 at the offices of J.P. Morgan Securities Inc., 60
Wall Street, New York, New York 10260.
- ---------------
* An application has been filed by J.P. Morgan Securities Inc. with the United
States Patent and Trademark Office for the registration of the TECONS service
mark.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH & CO.
CS FIRST BOSTON
DEAN WITTER REYNOLDS INC.
, 1994
<PAGE> 2
Artwork showing Major North American Markets Served indicated by Bullets on
Map of United States, Alaska and Hawaii.
Artwork showing Major International Markets Served indicated by Bullets on
Maps of United Kingdom and Australia.
S-2
<PAGE> 3
IN CONNECTION WITH THIS OFFERING, THE U.S. UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE COMMON STOCK,
THE TECONS AND THE COMPANY'S CONVERTIBLE DEBENTURES AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON
THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No person is authorized to give any information or to make any representations
not contained or incorporated by reference in this Prospectus Supplement or the
accompanying Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or any Underwriter. Neither this Prospectus Supplement nor the accompanying
Prospectus constitutes an offer to sell or a solicitation of an offer to buy any
securities in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
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Page
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Prospectus Summary.................... S-4
The Company........................... S-6
Recent Developments................... S-11
Use of Proceeds....................... S-12
Price Range of Common Stock and
Dividends........................... S-13
Capitalization........................ S-14
Selected Financial Information........ S-15
Unaudited Pro Forma Combined Financial
Information......................... S-16
Management's Discussion and Analysis
of Results of Operations and
Financial Condition................. S-26
Certain Federal Income Tax
Consequences to Non-United States
Holders............................. S-35
Underwriting.......................... S-37
PROSPECTUS
Available Information................. 3
Incorporation of Certain Documents by
Reference........................... 4
The Company........................... 5
SCI Finance........................... 5
Certain Investment Considerations..... 6
Use of Proceeds....................... 6
Description of Debt Securities........ 7
Description of Preferred Stock........ 22
Description of Common Stock
Warrants............................ 25
Description of the LLC Preferred
Securities.......................... 28
Certain Federal Income Tax
Considerations Regarding the LLC
Preferred Securities................ 45
Plan of Distribution.................. 49
Legal Matters......................... 50
Experts............................... 50
</TABLE>
S-3
<PAGE> 4
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information included and incorporated by
reference in this Prospectus Supplement and the accompanying Prospectus. All
information in this Prospectus Supplement assumes that the Underwriters'
over-allotment option will not be exercised. See "Underwriting." References to
the Company or SCI herein should be read as referring to Service Corporation
International and its subsidiaries, except where the context indicates
otherwise.
THE COMPANY
Service Corporation International (the "Company" or "SCI") is the largest
provider of death care services and products in the world. Giving effect to the
recent acquisitions of Great Southern Group plc ("Great Southern" or "GSG") and
Plantsbrook Group plc ("Plantsbrook" or "PG"), as of September 30, 1994, SCI
owned and operated 1,431 funeral homes, 213 cemeteries (including 92 funeral
home and cemetery combinations) and 99 crematoria located in 40 U.S. states, the
District of Columbia, Australia, Canada and the United Kingdom. See "The
Company -- International Expansion and Recent Acquisitions."
SCI provides all professional services relating to funerals, burials and
cremations, including the use of funeral homes and motor vehicles, the
performance of cemetery interment services and the management and maintenance of
cemetery grounds. It sells caskets, burial vaults and garments, cemetery
interment rights, including mausoleum spaces and lawn crypts, stone and bronze
memorials, cremation receptacles and related merchandise. Additionally, SCI
operates 52 flower shops in connection with its funeral and cemetery operations.
SCI sells its services and products to client families both at and prior to the
time of need. In addition, SCI's finance subsidiary, Provident Services, Inc.
("Provident"), provides financing to independent funeral home and cemetery
operators.
SCI's strategy is to:
- Continue to expand through the acquisition and construction, both
domestically and internationally, of funeral homes, cemeteries and
funeral home/cemetery combinations in areas with demographics that SCI
believes to be favorable
- Increase the operating margins of its existing and acquired facilities by
having such facilities share resources pursuant to SCI's cluster strategy
(see "The Company -- Funeral Service Operations -- Cluster Strategy")
- Increase revenue per location through the merchandising of a broad line
of death care products and services
- Increase future volume and revenues through the sale of prearranged
funeral services
SCI's acquisition strategy focuses on acquiring premier funeral homes and
cemeteries in metropolitan areas with demographics that SCI believes to be
favorable and in which the cluster strategy can be applied. SCI typically
retains former owners and key managers of acquired businesses in an effort to
assure that service quality is maintained and that the business's reputation,
heritage and local relationships remain intact. Acquired funeral homes and
cemeteries retain their original trade names in substantially all cases.
During the nine months ended September 30, 1994, SCI acquired 637 funeral homes,
22 cemeteries and 22 crematoria worldwide for a total of approximately $703
million in cash, stock and other securities.
S-4
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THE OFFERING
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Common Stock Offered:
United States Offering..................... 5,390,000 shares
International Offering..................... 2,310,000 shares
Total Offering..................... 7,700,000 shares
Common Stock Outstanding after
the Offering(1)............................ 93,871,965 shares
USE OF PROCEEDS.............................. The net proceeds of the Common Stock Offering
will be used to repay indebtedness as set
forth under "Use of Proceeds."
NYSE TRADING SYMBOL.......................... "SRV"
CONCURRENT OFFERINGS......................... Concurrently with the Common Stock Offering,
SCI Finance LLC, a subsidiary of the Company
("SCI Finance"), is offering (the "TECONS
Offering") an aggregate of 3,000,000 $
Term Convertible Shares, Series A (the
"TECONS") pursuant to a separate prospectus
supplement (excluding 450,000 TECONS subject
to an underwriters' over-allotment option).
The TECONS will be convertible into Common
Stock initially at a conversion rate of
shares of Common Stock for each TECONS. In
addition, the Company intends to consummate
an offering (the "Senior Notes Offering") of
$200 million aggregate principal amount of
Notes due 2004 pursuant to a separate
prospectus supplement concurrently with the
closing of the Common Stock Offering and the
TECONS Offering. The closing of the Common
Stock Offering is not contingent on the
closing of the TECONS Offering or the Senior
Notes Offering.
</TABLE>
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(1) Based on shares outstanding as of September 30, 1994. Excludes an aggregate
of 14,769,486 shares of Common Stock issuable upon exercise of stock options
and conversion of convertible securities outstanding as of such date and
shares of Common Stock issuable upon conversion of up to 3,450,000
TECONS (assuming exercise in full of the underwriters' over-allotment
option) that may be sold in the TECONS Offering.
S-5
<PAGE> 6
THE COMPANY
SCI is the largest provider of death care services and products in the world.
Giving effect to the recent acquisitions of Great Southern and Plantsbrook, as
of September 30, 1994, SCI owned and operated 1,431 funeral homes, 213
cemeteries (including 92 funeral home and cemetery combinations) and 99
crematoria located in 40 U.S. states, the District of Columbia, Australia,
Canada and the United Kingdom. See "-- International Expansion and Recent
Acquisitions."
SCI provides all professional services relating to funerals, burials and
cremations, including the use of funeral homes and motor vehicles, the
performance of cemetery interment services and the management and maintenance of
cemetery grounds. It sells caskets, burial vaults and garments, cemetery
interment rights, including mausoleum spaces and lawn crypts, stone and bronze
memorials, cremation receptacles and related merchandise. Additionally, SCI
operates 52 flower shops in connection with its funeral and cemetery operations.
SCI sells its services and products to client families both at and prior to the
time of need. In addition, SCI's finance subsidiary, Provident, provides
financing to independent funeral home and cemetery operators.
SCI's strategy is to:
- Continue to expand through the acquisition and construction, both
domestically and internationally, of funeral homes, cemeteries and
funeral home/cemetery combinations in areas with demographics that SCI
believes to be favorable
- Increase the operating margins of its existing and acquired facilities by
having such facilities share resources pursuant to SCI's cluster strategy
- Increase revenue per location through the merchandising of a broad line
of death care products and services
- Increase future volume and revenues through the sale of prearranged
funeral services
SCI's acquisition strategy focuses on acquiring premier funeral homes and
cemeteries in metropolitan areas with demographics that SCI believes to be
favorable and in which the cluster strategy can be applied. SCI typically
retains former owners and key managers of acquired businesses in an effort to
assure that service quality is maintained and that the business's reputation,
heritage and local relationships remain intact. Acquired funeral homes and
cemeteries retain their original trade names in substantially all cases.
During the nine months ended September 30, 1994, SCI acquired 637 funeral homes,
22 cemeteries and 22 crematoria worldwide for a total of approximately $703
million in cash, stock and other securities.
FUNERAL SERVICE OPERATIONS
The funeral service operations consist of SCI's funeral homes, cemeteries and
related businesses. The operation is organized into six domestic regions and
three foreign regions (Australia, Canada and the United Kingdom), each of which
is under the direction of a regional president with substantial industry
experience. Canadian operations are carried out by a public company which is
approximately 70% owned by SCI. Local funeral home and cemetery managers, under
the direction of the regional presidents, receive support and resources from
SCI's headquarters in Houston, Texas and have substantial autonomy with respect
to the manner in which services are conducted.
Death Care Industry
The funeral industry is characterized by a large number of locally-owned,
independent operations. SCI believes that there are in excess of 22,000, 500,
1,200 and 4,000 funeral homes operating in the United States, Australia, Canada
and the United Kingdom, respectively. In order to compete successfully, SCI's
funeral homes must maintain competitive prices, attractive, well-maintained and
conveniently located facilities, a good reputation and high professional
standards. Heritage and tradition can provide an established funeral home or
cemetery with the opportunity for repeat business from client families.
Furthermore, an established firm can generate future volume and revenues by
successfully marketing prearranged, pre-funded funeral services.
S-6
<PAGE> 7
The cemetery industry is also characterized by a large number of locally-owned
independent operations. SCI's cemetery properties compete with other cemeteries
in the same general area. In order to compete successfully, SCI's cemeteries
must maintain competitive prices, attractive and well-maintained properties, a
good reputation, an effective sales force and high professional standards.
The Company and the two other largest North American death care companies
control in the aggregate approximately seven percent of the funeral homes and
approximately four percent of the commercial cemeteries in North America. Based
upon industry estimates, these three companies represented less than 15% of
total 1993 death care industry revenues.
Cluster Strategy
The majority of SCI's funeral homes and cemeteries are managed in groups called
clusters. Clusters are established primarily in metropolitan areas to take
advantage of operational efficiencies, including the sharing of service
personnel, vehicles, preparation services, clerical staff and certain building
facility costs. The cluster strategy recognizes that, as SCI adds operations to
a geographic area in which SCI already operates, it will achieve additional
operating efficiencies through cost-sharing. SCI has successfully implemented
the cluster strategy in its North American and Australian operations and intends
to implement the strategy in the United Kingdom. As of September 30, 1994, SCI
operated approximately 160 clusters in North America and Australia, which range
in size from two operations to 53 operations.
Pre-need Services
SCI is actively engaged in the marketing of prearranged funeral services. The
funds collected from prearranged funeral contracts are generally held in trust
or are used to purchase life insurance or annuity contracts. The principal
amount of a prearranged funeral contract will be received in cash by an SCI
funeral home and recorded as revenue by SCI at the time the funeral is
performed. Earnings on trust funds and increasing benefits under
insurance-funded contracts increase the amount of cash to be received and the
revenue to be recognized at the time the service is performed and historically
have allowed the Company to more than cover increases in the costs of providing
funeral services. At September 30, 1994, SCI's unfulfilled prearranged funeral
contracts amounted to approximately $1.4 billion. SCI's historical cancellation
rate for all prearranged funeral contracts approximates ten percent, for which a
reserve has been established.
Cemetery sales are often made pursuant to installment contracts providing for
monthly payments. The principal amount of these installment contracts is
recognized as revenue by SCI at the time of sale, net of an approximate eight
percent cancellation reserve that is based on historical results. A portion of
the proceeds from cemetery sales is generally required by law to be paid into
perpetual care trust funds. Earnings on perpetual care trust funds are used to
defray the maintenance cost of cemeteries. In addition, a portion of the
proceeds from the pre-need sale of cemetery merchandise may be required by law
to be paid into trust.
Financial Services
In 1988, SCI formed Provident to provide capital financing to independent
funeral home and cemetery operators. The majority of Provident's loans are made
to clients seeking to finance funeral home or cemetery acquisitions.
Provident had $243 million in loans outstanding at September 30, 1994. To date,
the amount and number of problem loans have been insignificant. Provident
obtains its funds primarily from SCI bank and commercial paper borrowings.
Provident is in competition with banks and other lending institutions, many of
which have substantially greater resources than Provident. However, Provident
believes that its knowledge of the death care industry provides it with the
ability to make more accurate assessments of funeral home and cemetery industry
loans, thereby providing Provident with a competitive advantage in making such
loans.
S-7
<PAGE> 8
Regulation
In April 1984, the U.S. Federal Trade Commission (the "FTC") comprehensive trade
regulation rule for the funeral industry became fully effective. The rule
contains minimum guidelines for funeral industry practices, requires extensive
price and other affirmative disclosures and imposes mandatory itemization of
funeral goods and services. A pre-existing consent order between SCI and the FTC
applicable to certain funeral practices of SCI was amended in 1984 to make the
substantive provisions of the consent order consistent with the funeral trade
regulation rule. From time to time in connection with acquisitions, SCI has
entered into consent orders with the FTC which have required SCI to dispose of
certain operations in order to proceed with the acquisitions and/or have limited
SCI's ability to make acquisitions in specified areas. The trade regulation rule
and the various consent orders have not had a material adverse effect on SCI's
operations.
ACQUISITION STRATEGY
Over the past several years, SCI has made a significant number of acquisitions.
SCI anticipates that it will continue to aggressively pursue acquisition
opportunities, as acquisitions form a critical part of SCI's growth strategy.
SCI will continue to seek acquisitions in geographic areas in which it presently
operates to expand established clusters, as well as acquisitions in new
geographic areas, including those outside North America, to develop new clusters
and to increase volume and revenue. To date SCI has been able to increase the
profitability of its acquired properties by absorbing a significant portion of
their costs, such as transportation and embalming, into SCI's clusters, and by
applying SCI's merchandising programs to the new operations. In addition,
acquisitions increase SCI's ability to benefit from the centralization of
systems, insurance and other financial services. SCI also believes that because
of its size it has been able to negotiate favorable supply arrangements with
volume discounts on supplies, including caskets, and that the terms of such
supply arrangements have enabled it to increase the profitability of its
acquired properties. There can be no assurance that SCI will continue to
successfully absorb future acquisitions, domestic or international, or realize
such cost savings.
SCI typically retains former owners and key managers of acquired businesses in
an effort to assure that service quality is maintained and that the business's
reputation, heritage and local relationships remain intact. Acquired funeral
homes and cemeteries retain their original trade names in substantially all
cases.
In evaluating specific properties for acquisition, SCI considers a number of
factors including demographics, location, reputation, heritage, physical size,
volume of business, profitability, available inventory, name recognition,
aesthetics, potential for development or expansion, competitive position,
pricing structure and quality of operating management. SCI follows a disciplined
approach based on specific financial criteria for determining acquisition prices
and intends to continue an active acquisition program in the future. There can
be no assurance that acquisition prospects will continue to be available in
attractive locations at prices acceptable to SCI.
INTERNATIONAL EXPANSION AND RECENT ACQUISITIONS
Based on its experience in applying its cluster strategy in the North American
market, SCI has targeted several foreign countries that it believes offer
similar opportunities. Effective July 1, 1993, SCI acquired Pine Grove Funeral
Group ("Pine Grove"), Australia's largest funeral and cremation services
provider, for approximately U.S.$70 million. This was SCI's first acquisition
outside of North America. Pine Grove's operations at year-end 1993 consisted of
60 funeral homes and eight cemetery/crematorium facilities located in
Australia's five major population centers of Adelaide, Brisbane, Melbourne,
Perth and Sydney. During its six months of operation in 1993 as an SCI company,
Pine Grove reported revenues of approximately U.S.$17 million. In March 1994,
SCI continued its Australian expansion by acquiring LePine Holdings Proprietary
Limited ("LePine"), a firm with over 100 years of funeral service history. The
LePine acquisition added 20 additional funeral homes in Melbourne with 1993
revenues of approximately U.S.$12 million.
In June 1994, SCI announced an unsolicited offer to acquire 100% of the
outstanding shares of Great Southern, which is among the leading funeral and
cremation services companies in the United Kingdom. Great Southern owns and
operates 157 funeral homes, 13 crematoria and two cemeteries in the United
Kingdom, primarily
S-8
<PAGE> 9
south of London. As of September 30, 1994, SCI owned, or had commitments to
acquire, in excess of 98% of Great Southern's voting shares. It is anticipated
that SCI will acquire the balance of the equity interests in Great Southern in
the coming months. The total purchase price for Great Southern is approximately
U.S.$192.8 million, including the assumption of approximately U.S.$14.8 million
of Great Southern debt. Great Southern reported revenues of approximately
U.S.$48.9 million for the year ended December 31, 1993. See "Unaudited Pro Forma
Combined Financial Information."
In September 1994, SCI announced its offer to acquire 100% of the outstanding
shares of Plantsbrook, which is the largest public funeral company in the United
Kingdom. Plantsbrook owns and operates 380 funeral homes in the United Kingdom,
primarily north of London. As of September 30, 1994, SCI owned, or had
commitments to acquire, in excess of 95% of Plantsbrook's voting shares. It is
anticipated that SCI will acquire the balance of the equity interests in
Plantsbrook in the coming months. The total purchase price for Plantsbrook is
approximately U.S.$312.7 million, including the assumption of approximately
U.S.$13.9 of Plantsbrook debt. Plantsbrook reported revenues of approximately
U.S.$77.7 million for the year ended December 31, 1993. See "Unaudited Pro Forma
Combined Financial Information." Great Southern and Plantsbrook together
accounted for approximately 15% of the total funerals performed in the United
Kingdom during 1993.
In the context of its international expansion, SCI believes that it can
favorably manage its worldwide effective tax rate by taking advantage of lower
tax rates and other foreign jurisdictional tax structuring opportunities. SCI
has implemented and intends to continue to explore the implementation of various
strategies to take advantage of such opportunities. There can be no assurance
that the implementation of such strategies will actually result in a reduction
of SCI's worldwide effective tax rate.
INDUSTRY TRENDS
Stability
Death rates have been fairly predictable, thereby lending stability to the death
care industry. For example, since 1980, the number of deaths in the United
States has increased at a compound rate of approximately one percent per year.
According to a 1993 report prepared by the U.S. Department of Commerce, Bureau
of the Census, the number of deaths in the United States is expected to increase
by approximately one percent per year between 1993 and 2000 and by 0.9% per year
from 2000 to 2020. Because the industry is relatively stable, non-cyclical and
fairly predictable, business failures are uncommon. As a result, ownership of
funeral home and cemetery businesses has traditionally passed from generation to
generation within a family. The death rate tends to be somewhat higher in the
winter months and funeral and cemetery operations generally experience a higher
volume of business during these months.
Consolidation
In recent years, the pace of acquisition activity in the death care industry has
increased. From the standpoint of individual owners, this appears to result
principally from family succession issues, a desire for liquidity and increasing
tax and estate planning complexities. From the standpoint of the large death
care providers, interest in acquisitions is driven by the benefits anticipated
to be derived from potential operating efficiencies, improved managerial control
and more effective strategic and financial planning. In recent years, several
large death care companies have expanded their operations significantly through
acquisitions. The increased interest in acquisitions of funeral homes and
cemeteries provides a source of potential liquidity that has not been readily
available to individual owners in the past.
Clustered Operations
During the last several years, larger death care companies have increasingly
begun to cluster their funeral home and cemetery operations. Clusters refer to
funeral homes and/or cemeteries that are grouped together in a geographic area.
Clusters provide cost savings to funeral homes and cemeteries through the
sharing of personnel, vehicles and other resources. In addition, the inclusion
of funeral homes and cemeteries in the same cluster provides opportunities for a
company to cross-sell the full range of death care services without
corresponding increases in incremental overhead expenses.
S-9
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Combined Operations
Combined operations, referring to funeral home and cemetery operations conducted
on a single site, have become increasingly popular as they provide cost savings
through shared resources and cross-selling opportunities. The ability to offer
the full range of products and services at one location tends to increase the
sales volume and revenues of both the funeral home and cemetery.
Pre-need Marketing
An increasing number of death care products and services are being sold prior to
the time of death (i.e., on a "pre-need" basis). SCI believes that consumers are
becoming more aware of the benefits of advanced planning, such as the financial
assurance and peace of mind achieved by establishing in advance a fixed price
and type of service, and the elimination of the emotional strain on family
members of making death care plans at the time of need.
Cremation
In recent years there has been steady, gradual growth in the number of families
in the United States that have chosen cremation as an alternative to traditional
methods of disposal. According to industry studies, cremations accounted for
approximately 20% of all dispositions of human remains in the United States in
1993. SCI's domestic operations perform substantially more cremations than the
national average. In 1993, just under 29% of all families served by SCI's North
American funeral homes selected the cremation alternative. SCI has a significant
number of operating locations in Florida and all along the west coast of North
America where the cremation alternative continues to gain acceptance. Based on
industry studies, the Company believes that cremations account for approximately
60% to 70% of all dispositions of human remains in Australia and in the United
Kingdom.
S-10
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RECENT DEVELOPMENTS
OPERATING RESULTS
On October 20, 1994, the Company announced its results for the three months
ended September 30, 1994. For such period, the Company reported net income of
$28.6 million, or $.33 per share on a primary basis, on revenues of $277.8
million and operating income of $66.3 million. For the comparable period in
1993, net income was $19.8 million, or $.23 per share on a primary basis,
revenues were $211.4 million and operating income was $47.5 million. For the
nine months ended September 30, 1994, the Company reported net income of $96.2
million, or $1.12 per share on a primary basis, on revenues of $801.9 million
and operating income of $207.7 million. For the comparable period in 1993,
before the cumulative effect of a January 1, 1993 accounting change, net income
was $73.4 million, or $.89 per share on a primary basis, revenues were $652.9
million and operating income was $162.0 million. Results for the three months
and nine months ended September 30, 1993 include a $3.2 million, or $.04 per
share, charge to reflect the retroactive impact of the Omnibus Budget
Reconciliation Act of 1993. Results for the three months and nine months ended
September 30, 1994 include approximately one month of results of Great Southern
and Plantsbrook.
INTERNATIONAL DEVELOPMENTS
The Company is considering the desirability and feasibility of an acquisition of
Pompes Funebres Generales S.A. ("PFG"), which operates approximately 150 funeral
homes or similar facilities and 750 other retail outlets in France and is the
largest operator of funeral homes in France. Although the Company has had, and
intends to continue, exploratory discussions with Lyonnaise des Eaux-Dumez S.A.
("Lyonnaise"), which controls approximately 66% of the stock of PFG, in regard
to various potential transactions, Lyonnaise has advised the Company that it has
no intention of selling its interest in PFG. The balance of the stock of PFG is
publicly traded, and the current total market capitalization of PFG is
approximately U.S. $185 million. For the year ended December 31, 1993, PFG
reported revenues of approximately U.S. $565 million and net income of
approximately U.S. $20 million. Subsequent to December 31, 1993, PFG sold its
46% interest in Plantsbrook to the Company. The results for PFG disclosed above
include all of the revenues of Plantsbrook during such period, and PFG's 46%
interest in Plantsbrook's net income. For the year ended December 31, 1993,
Plantsbrook reported revenues of approximately U.S. $77.7 million and net income
of approximately U.S. $12.3 million. The operating margins of the funeral
business in France historically have been substantially lower than the operating
margins in the funeral business in North America and in the United Kingdom. The
Company has retained an affiliate of J.P. Morgan Securities Inc. to assist it in
its evaluation of PFG. Particularly in light of the statement by Lyonnaise that
it has no intention of selling its interest in PFG, there can be no assurance
that any transaction involving the Company and PFG will ultimately occur or as
to the terms of any such transaction.
In October 1994, the Company announced that it had acquired approximately 8.5%
of the Class A Voting Shares and approximately 19.9% of the Class B Non-Voting
Shares of Arbor Memorial Services Inc. ("Arbor"). Arbor owns 44 cemeteries and
21 crematoria in Canada. The Company, which acquired its position in Arbor as a
strategic investment, is continuing to consider means to build its relationship
with Arbor and may continue to increase its investment in Arbor. Subsequent to
the announcement by the Company of its position in Arbor, the Company was
advised by the Arbor stockholder who owns a majority of the Class A Voting
Shares that he is not interested at this time in a transaction involving a sale
of control of Arbor. For the year ended October 31, 1993, Arbor reported
revenues of approximately U.S. $78.1 million and net income of approximately
U.S. $4.5 million.
The financial data contained herein with respect to PFG, Plantsbrook and Arbor
is derived from such companies' publicly available information. Such data was
not prepared in conformity with United States generally accepted accounting
principles, and the Company makes no representation with respect to the accuracy
of such data or the comparability of such data to financial data of the Company
or other U.S. companies in the death care industry.
S-11
<PAGE> 12
USE OF PROCEEDS
The net proceeds from the sale of the Common Stock offered hereby are estimated
to be $ million ($ million if the Underwriters' over-allotment option is
exercised in full). The Company will contribute $40 million of such proceeds to
SCI Finance ($46 million if the underwriters' over-allotment option in respect
of the TECONS is exercised in full). SCI Finance expects to obtain $150 million
from the TECONS Offering ($172.5 million if the underwriters' over-allotment
option in respect of the TECONS is exercised in full). Substantially all of the
aggregate proceeds so obtained by SCI Finance from the TECONS Offering and such
capital contribution from the Company will be loaned by SCI Finance to SCI
International Limited, a wholly-owned subsidiary of SCI ("SCI Limited"), which
will use such proceeds to repay a portion of the amounts outstanding under the
UK Facilities (as defined below). In connection with the acquisitions of Great
Southern and Plantsbrook, a subsidiary of SCI Limited obtained a L185 million
loan facility from Morgan Guaranty Trust Company of New York (the "Morgan
Facility") and a L100 million line of credit from Chemical Bank (the "Chemical
Facility" and, together with the Morgan Facility, the "UK Facilities"). SCI has
guaranteed the UK Facilities. As of September 30, 1994, and giving effect to the
exchange rate as of such date of approximately $1.58 to L1, approximately $210
million was outstanding under the Morgan Facility at a weighted average annual
interest rate of 5.61% with maturities ranging from five to 45 days, and
approximately $103 million was outstanding under the Chemical Facility at a
weighted average annual interest rate of 5.67% with maturities ranging from 17
to 28 days. It is anticipated that after giving effect to the application of the
proceeds of the Common Stock Offering and the TECONS Offering, an aggregate of
approximately $200 million will be outstanding under the UK Facilities, which
the Company intends to refinance with the proceeds from a note offering (the "UK
Note Offering") proposed to be made in the United Kingdom in early 1995. To the
extent that the proceeds of the UK Note Offering, together with the amount
loaned by SCI Finance to SCI Limited, are insufficient to repay in full the
amounts outstanding under the UK Facilities, the Company intends to use a
portion of the proceeds from the Common Stock Offering to effect such repayment.
The balance of the net proceeds from the sale of the Common Stock offered
hereby, together with the proceeds from the Senior Notes Offering, will be used
to reduce amounts outstanding under the Company's existing revolving credit
facilities (the "Revolving Credit Facilities") or to retire commercial paper
backed by such facilities or both. As of September 30, 1994, approximately $220
million was outstanding under the Revolving Credit Facilities at a weighted
average annual interest rate of 5.08% with maturities ranging from seven to 31
days, and approximately $327 million of commercial paper was outstanding backed
by such facilities at a weighted average annual interest rate of 4.99% with
maturities ranging from three to 33 days. The Company's borrowings under the
Revolving Credit Facilities and the proceeds from the sale of its commercial
paper are used primarily to fund the Company's acquisition program and to
provide financing to Provident.
Morgan Guaranty Trust Company of New York, an affiliate of J.P. Morgan
Securities Inc., is the lender under the Morgan Facility. The maximum amount
available under the Morgan Facility is approximately $292 million. The Company
intends to repay the Morgan Facility in full with a combination of proceeds from
the Common Stock Offering, the TECONS Offering and the UK Note Offering. See
"Underwriting."
S-12
<PAGE> 13
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The SCI Common Stock is traded on the NYSE under the symbol "SRV." The following
table sets forth, on a per share basis for the periods shown, the range of high
and low reported sale prices of the SCI Common Stock on the NYSE as well as per
share dividends paid in such periods. SCI has declared 86 consecutive quarterly
dividends on the SCI Common Stock since it began paying dividends in 1974.
<TABLE>
<CAPTION>
-------------------------------------
SALE PRICE
HIGH LOW DIVIDENDS
------ ------ ---------
<S> <C> <C> <C>
Fiscal Year Ended December 31, 1992:
First Quarter $18.38 $15.63 $ .09
Second Quarter 18.75 16.13 .10
Third Quarter 18.50 16.38 .10
Fourth Quarter 18.50 16.75 .10
Fiscal Year Ended December 31, 1993:
First Quarter $21.63 $17.88 $ .10
Second Quarter 22.13 18.50 .10
Third Quarter 25.25 20.75 .10
Fourth Quarter 26.38 23.50 .10
Fiscal Year Ending December 31, 1994:
First Quarter $28.00 $24.63 $.105
Second Quarter 25.38 22.50 .105
Third Quarter 26.63 24.88 .105
Fourth Quarter (through November 2, 1994) 26.88 24.13 .105
</TABLE>
On November 2, 1994, the reported last sale price of the SCI Common Stock on the
NYSE was $26.625 per share.
S-13
<PAGE> 14
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of the
Company at June 30, 1994 and on a pro forma basis giving effect to the
acquisitions of Great Southern and Plantsbrook and as adjusted for the Common
Stock Offering and the TECONS Offering (assuming in each case that the
underwriters' over-allotment option is not exercised), the Senior Notes Offering
and the application of the estimated net proceeds from such offerings.
<TABLE>
<CAPTION>
--------------------------
AT JUNE 30, 1994
PRO FORMA
AND
Thousands ACTUAL AS ADJUSTED
---------- -----------
<S> <C> <C>
CURRENT MATURITIES OF LONG-TERM DEBT $ 67,945 $ 68,715
========== ==========
LONG-TERM DEBT:
Indebtedness to banks under revolving credit agreements and
commercial paper $ 467,784 $ 206,670
Indebtedness under the UK Facilities -- 200,000
Notes offered in the Senior Notes Offering -- 200,000
Medium term notes 186,040 186,040
6.5% convertible subordinated debentures 172,500 172,500
7.875% debentures 150,000 150,000
Convertible debentures issued in connection with various
acquisitions 23,624 23,624
8% convertible debentures 16,074 16,074
Variable interest rate notes 10,624 10,624
Mortgage notes and other 91,294 104,397
---------- ----------
Total long-term debt 1,117,940 1,269,929
---------- ----------
CONVERTIBLE PREFERRED STOCK OF SUBSIDIARY -- 150,000
---------- ----------
STOCKHOLDERS' EQUITY:
Preferred stock, 1,000 shares authorized; no shares issued and
outstanding -- --
Common stock, 200,000 shares authorized; 86,028 shares issued
and outstanding; 93,728 shares issued and outstanding pro
forma and as adjusted 86,028 93,728
Capital in excess of par value 524,399 710,207
Retained earnings 334,376 334,376
Foreign translation adjustment (4,883) (4,883)
---------- ----------
Total stockholders' equity 939,920 1,133,428
---------- ----------
Total capitalization $2,057,860 $2,553,357
========== ==========
</TABLE>
S-14
<PAGE> 15
SELECTED FINANCIAL INFORMATION
The selected consolidated financial data presented below for each of the five
years in the period ended December 31, 1993 have been derived from the
consolidated financial statements of the Company, which statements, in respect
of the year ended December 31, 1993, have been audited by Coopers & Lybrand,
independent public accountants, and in respect of the four years ended December
31, 1992, have been audited by Ernst & Young, independent public accountants.
The data at and for the six months ended June 30, 1994 and June 30, 1993 have
been derived from the unaudited consolidated financial statements of the Company
for such periods and, in the opinion of management, include all adjustments
(consisting only of normal recurring adjustments) necessary to state fairly the
information included therein in accordance with generally accepted accounting
principles for interim financial information. The data should be read in
conjunction with the related notes and other financial information included and
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1993 and the Company's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 1994, incorporated by reference herein.
Results for the six months ended June 30, 1994 are not necessarily indicative of
results for any other interim period or for the year as a whole.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
AT OR FOR THE SIX MONTHS
Thousands, except per share ENDED JUNE 30, AT OR FOR THE YEARS ENDED DECEMBER 31,(1)
amounts and Other Data 1994 1993 1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues $ 524,120 $ 441,420 $ 899,178 $ 772,477 $ 643,248 $ 563,156 $ 518,809
Costs and expenses (357,837) (308,029) (635,858) (550,422) (464,740) (413,236) (386,032)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Gross profit 166,283 133,391 263,320 222,055 178,508 149,920 132,777
General and administrative
expenses (24,871) (18,887) (43,706) (38,693) (35,448) (28,037) (28,423)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from operations 141,412 114,504 219,614 183,362 143,060 121,883 104,354
Interest expense (32,456) (28,888) (59,631) (53,902) (42,429) (36,095) (32,514)
Other income 4,686 2,665 13,509 9,876 8,241 13,644 12,778
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from continuing
operations before income taxes
and preferred dividend
requirements 113,642 88,281 173,492 139,336 108,872 99,432 84,618
Provision for income taxes (46,002) (34,700) (70,400) (52,800) (35,500) (35,900) (31,000)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from continuing
operations before cumulative
effect of change in accounting
principles and preferred
dividend requirements 67,640 53,581 103,092 86,536 73,372 63,532 53,618
Cumulative effect of change in
accounting principles (net of
income tax) -- (2,031) (2,031) -- -- -- --
Preferred dividend requirements -- -- -- -- -- (3,314) (6,897)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from continuing
operations available to common
stockholders $ 67,640 $ 51,550 $ 101,061 $ 86,536 $ 73,372 $ 60,218 $ 46,721
========== ========== ========== ========== ========== ========== ==========
Per share:
Primary
Income from continuing
operations before
cumulative effect of
change in accounting
principles $ .79 $ .66 $1.24 $1.13 $1.03 $ .85 $ .65
Cumulative effect of change
in accounting principles
(net of income tax) -- (.03) (.03) -- -- -- --
----- ----- ----- ----- ----- ----- -----
Income from continuing
operations available to
common stockholders $ .79 $ .63 $1.21 $1.13 $1.03 $ .85 $ .65
===== ===== ===== ===== ===== ===== =====
Fully diluted
Income from continuing
operations before
cumulative effect of
change in accounting
principles $ .74 $ .62 $1.19 $1.07 $1.00 $ .84 $ .65
Cumulative effect of change
in accounting principles
(net of income tax) -- (.02) (.02) -- -- -- --
----- ----- ----- ----- ----- ----- -----
Income from continuing
operations available to
common stockholders $ .74 $ .60 $1.17 $1.07 $1.00 $ .84 $ .65
===== ===== ===== ===== ===== ===== =====
Dividends $ .21 $ .20 $ .40 $ .39 $ .37 $ .37 $ .36
===== ===== ===== ===== ===== ===== =====
BALANCE SHEET DATA:
Working capital $ 135,103 $ 176,768 $ 171,901 $ 155,319 $ 156,383 $ 113,391 $ 120,682
Prearranged funeral contracts 1,298,558 1,157,377 1,244,866 -- -- -- --
Total assets 4,023,735 3,327,189 3,683,304 2,611,123 2,123,452 1,653,689 1,601,468
Long-term debt, excluding
current portion 1,117,940 927,544 1,062,222 980,029 786,685 577,378 485,669
Deferred prearranged funeral
contract revenues 1,375,843 1,191,105 1,263,407 -- -- -- --
Stockholders' equity 939,920 827,645 884,513 683,097 615,776 434,323 557,777
Total capitalization 2,057,860 1,755,189 1,946,735 1,663,126 1,402,461 1,011,701 1,043,446
OTHER DATA (END OF PERIOD):
Funeral homes 873 696 792 674 655 512 551
Cemeteries 204 176 192 176 163 145 126
</TABLE>
- ---------------
(1) The year ended December 31, 1993 reflects the changes in accounting
principles adopted January 1, 1993. The four years ended December 31, 1992
reflect results as historically reported.
S-15
<PAGE> 16
UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
In June 1994, the Company announced an unsolicited offer to acquire 100% of the
outstanding shares of GSG. As of September 30, 1994, the Company owned, or had
commitments to acquire, in excess of 98% of GSG's voting shares. The Company
anticipates that the total purchase price will approximate $192,777,000,
including the assumption of approximately $14,751,000 of existing debt. GSG is a
funeral provider in the United Kingdom ("UK") and owns 157 funeral homes, 13
crematoria and two cemeteries.
In September 1994, the Company announced its offer to acquire 100% of the
outstanding shares of PG. As of September 30, 1994, the Company owned, or had
commitments to acquire, in excess of 95% of PG's voting shares. The Company
anticipates that the total purchase price will approximate $312,690,000,
including the assumption of approximately $13,873,000 of existing debt. PG is a
funeral provider in the UK and owns 380 funeral homes.
In addition to the acquisitions of GSG and PG, during 1993 and the six months
ended June 30, 1994, the Company continued to acquire funeral and cemetery
operations in the United States, Australia and Canada. Excluding GSG and PG,
during such period the Company acquired 195 funeral homes and 33 cemeteries (the
"Other Acquired Companies") in 78 separate transactions for an aggregate
purchase price of approximately $395,000,000 in the form of combinations of
cash, SCI Common Stock, issued and assumed debt, convertible debentures and
retired loans receivable held by Provident.
The following unaudited pro forma combined balance sheet as of June 30, 1994 has
been prepared assuming the acquisitions by the Company of GSG and PG took place
on June 30, 1994 and the unaudited pro forma combined statements of income for
the year ended December 31, 1993 and the six months ended June 30, 1994 have
been prepared assuming the acquisitions by the Company of GSG, PG and the Other
Acquired Companies took place at the beginning of the respective periods. Such
acquisitions are being accounted for under the purchase method of accounting.
The historical revenues and expenses of the Other Acquired Companies represent
amounts recorded by those businesses for the period that they were not owned by
the Company during the year ended December 31, 1993 and the six months ended
June 30, 1994, respectively. The unaudited pro forma combined financial
information may not be indicative of results that would have actually resulted
if these transactions had occurred on the dates indicated or which may be
obtained in the future.
The acquisitions of GSG and PG are being financed on an interim basis
principally with borrowings under the UK Facilities, under which the Company may
borrow up to $438,900,000 (based on the exchange rate of one UK pound sterling
equivalent to $1.54 on June 30, 1994) with interest at a rate equal to UK pound
sterling LIBOR plus 20 basis points. The unaudited pro forma combined financial
information presented herein assumes the completion of the Common Stock
Offering, the TECONS Offering and the Senior Notes Offering on June 30, 1994
with respect to the unaudited pro forma combined balance sheet and at the
beginning of the respective periods with respect to the unaudited pro forma
combined statements of income. The proceeds from the TECONS Offering and a
portion of the net proceeds from the Common Stock Offering are assumed to be
used to repay $238,900,000 of indebtedness under the UK Facilities, and it is
further assumed that $200 million remains outstanding under the UK Facilities as
of the date of the unaudited pro forma combined balance sheet and at the
beginning of the respective periods with respect to the unaudited pro forma
combined statements of income. The remaining net proceeds from the Common Stock
Offering and all of the net proceeds from the Senior Notes Offering are assumed
to be used to repay amounts outstanding under the Revolving Credit Facilities or
to retire commercial paper or both (including $37,680,000 which was assumed to
have been borrowed to finance a portion of the purchase price of GSG and PG).
The historical financial statements of GSG and PG as of June 30, 1994, and for
the year and six months ended December 31, 1993 and June 30, 1994, respectively,
were prepared in UK pound sterling in accordance with the UK Companies Act of
1985 ("UK GAAP"). This information has been adjusted to present the historical
financial statements in accordance with United States generally accepted
accounting principles ("US GAAP") and translated into U.S. dollars at the
exchange rate in effect at the balance sheet date or the average exchange rate
for the respective statement of income periods presented. The Company has not
completed all appraisals and evaluations necessary to finalize GSG's and PG's
purchase price allocation, and accordingly, actual adjustments that reflect
appraisals and other evaluations of the purchased assets and assumed liabilities
may differ from the pro forma adjustments.
S-16
<PAGE> 17
SERVICE CORPORATION INTERNATIONAL
UNAUDITED PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1994
<TABLE>
<CAPTION>
--------------------------------------------------------
HISTORICAL PRO FORMA
THE COMBINED
Thousands COMPANY GSG AND PG ADJUSTMENTS TOTAL
---------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 38,638 $ 3,882 $ -- $ 42,520
Receivables, net of allowances 240,774 17,245 -- 258,019
Inventories 52,233 2,736 -- 54,969
Other 13,860 -- -- 13,860
---------- -------- --------- ----------
Total current assets 345,505 23,863 -- 369,368
Prearranged funeral contracts 1,298,558 -- 54,889(A) 1,353,447
Long-term receivables 538,014 -- -- 538,014
Cemetery property, at cost 473,244 6,735 232,301(B) 712,280
Property, plant and equipment, at cost (net) 666,092 87,749 4,066(C) 759,952
2,045(D)
Deferred charges and other assets 211,215 1,147 5,814(E) 218,176
Goodwill -- 137,038 (137,038)(F) --
Names and reputations (net) 491,107 -- 264,422(G) 755,529
---------- -------- --------- ----------
$4,023,735 $256,532 $ 426,499 $4,706,766
========== ======== ========= ==========
Liabilities & Stockholders' Equity
Current liabilities:
Accounts payable and accrued liabilities $ 121,520 $ 22,607 $ 15,015(H) $ 159,142
Income taxes 20,937 14,407 -- 35,344
Current maturities of long-term debt 67,945 9,332 (8,562)(I) 68,715
---------- -------- --------- ----------
Total current liabilities 210,402 46,346 6,453 263,201
Long-term debt 1,117,940 19,292 (6,189)(I) 1,269,929
200,000(J)
200,000(K)
37,680(L)
(298,794)(L)
Deferred income taxes 168,209 1,014 77,334(M) 246,557
Other liabilities 211,421 1,498 -- 212,919
Deferred prearranged funeral contract
revenues 1,375,843 -- 54,889(A) 1,430,732
Convertible preferred stock of subsidiary -- -- 150,000(N) 150,000
Stockholders' equity 939,920 188,382 (188,382)(O) 1,133,428
193,508(P)
---------- -------- --------- ----------
$4,023,735 $256,532 $ 426,499 $4,706,766
========== ======== ========= ==========
</TABLE>
S-17
<PAGE> 18
SERVICE CORPORATION INTERNATIONAL
NOTES TO THE UNAUDITED PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1994
Thousands, except per share amount
One UK pound sterling equivalent to $1.54, which represents the exchange rate on
June 30, 1994
(A) To record the amount of prearranged funeral contracts outstanding and the
related deferred prearranged funeral contract revenues in accordance with
the Company's accounting policies for GSG ($38,719) and PG ($16,170). These
prearranged funeral contracts were not afforded balance sheet recognition
by GSG or PG.
(B) To increase GSG's cemeteries and cremation scatter gardens to estimated
fair value.
(C) To record various assets acquired from J. D. Field & Sons Limited (the
former majority shareholder of GSG) included as part of the acquisition of
GSG, consisting primarily of real estate associated with certain funeral
operations of GSG.
(D) To increase funeral home land and buildings to estimated fair value for
GSG.
(E) To record the estimated costs and expenses to be incurred in connection
with the TECONS Offering and the Senior Notes Offering. A portion of the
net proceeds of the Common Stock Offering ($4,078) is being used to pay the
expenses of the TECONS Offering.
(F) To eliminate the previously recorded GSG and PG goodwill.
(G) To allocate the excess of the purchase price over the estimated fair value
of PG net assets acquired to names and reputations. The estimated fair
value of the GSG net assets acquired fully absorbed the GSG purchase price.
(H) To accrue costs anticipated to be incurred in connection with the
acquisitions of GSG ($7,315) and PG ($7,700).
(I) To record the repayment of GSG existing debt.
(J) To record the amount assumed to remain outstanding under the UK Facilities
($200,000) after the assumed repayment of a portion of the UK Facilities
($238,900) from the proceeds from the TECONS Offering ($150,000) and a
portion of the net proceeds from the Common Stock Offering ($88,900).
(K) To record the Notes being issued in the Senior Notes Offering.
(L) To reflect borrowings under the Revolving Credit Facilities and/or through
the issuance of commercial paper to finance a portion of the purchase price
of GSG and PG ($37,680) and the use of $100,530 of the net proceeds of the
Common Stock Offering and all of the $198,264 net proceeds of the Senior
Notes Offering to the repayment of amounts outstanding under the Revolving
Credit Facilities and/or to retire commercial paper.
(M) To provide for additional deferred income taxes for GSG resulting from
differences in the carrying values of net assets for financial statement
and tax purposes.
(N) To record the aggregate liquidation preference of the securities being
offered in the TECONS Offering.
(O) To eliminate the historical stockholders' equity of GSG ($37,505) and PG
($150,877).
(P) To reflect the net proceeds from the issuance of 7,700 shares in the Common
Stock Offering at an assumed public offering price of $26 per share.
S-18
<PAGE> 19
The following adjustments were made to the historical financials of GSG and PG
in order to restate historical financial statements to US GAAP:
<TABLE>
<CAPTION>
----------------------------------------------------------------------
AS REPORTED
HISTORIC AMOUNTS IN UNAUDITED
CONVERTED TO PRO FORMA
US DOLLARS IN ADJUSTMENTS TO COMBINED
UK GAAP US GAAP BALANCE SHEET
GSG PG GSG PG GSG PG
------- ------- ------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Property, plant and equipment $37,016 $60,616 $(8,351)(1) $ (1,532)(1) $28,665 $ 59,084
Goodwill -- -- 20,372(2) 116,666(2) 20,372 116,666
Deferred income taxes -- -- -- 1,014(3) -- 1,014
Stockholders' equity 25,484 36,757 12,021 114,120 37,505 150,877
</TABLE>
- ---------------
(1) To record the accumulated depreciation for GSG's and PG's buildings using a
50 year straight-line life. UK GAAP does not require the depreciation of
buildings.
(2) To reclass goodwill, net of accumulated amortization, which was previously
charged against equity as allowed by UK GAAP.
(3) To record certain deferred tax adjustments required by US GAAP.
S-19
<PAGE> 20
SERVICE CORPORATION INTERNATIONAL
UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1993
<TABLE>
<CAPTION>
---------------------------------------------------------------------------
HISTORICAL PRO FORMA
OTHER ACQUIRED
Thousands, except per share amounts THE COMPANY GSG AND PG COMPANIES ADJUSTMENTS COMBINED TOTAL
----------- ---------- -------------- ------------ --------------
<S> <C> <C> <C> <C> <C>
Revenues $ 899,178 $ 126,594 $110,214 $ 5,165(A) $1,141,151
Costs and expenses (635,858) (101,300) (95,534) (3,590)(A) (820,489)
11,842(B)
7,781(C)
(70)(D)
(6,611)(E)
3,598(F)
(437)(G)
(310)(H)
--------- --------- -------- -------- ----------
Gross profit 263,320 25,294 14,680 17,368 320,662
General and administrative expenses (43,706) -- -- -- (43,706)
--------- --------- -------- -------- ----------
Income from operations 219,614 25,294 14,680 17,368 276,956
Interest expense (59,631) (2,560) (3,541) (686)(A) (86,366)
(6,071)(B)
1,372(I)
(11,750)(J)
9,165(K)
(16,980)(L)
4,316(M)
Dividends on convertible preferred
stock of subsidiary -- -- -- (8,625)(N) (8,625)
Other income 13,509 313 -- -- 13,822
--------- --------- -------- -------- ----------
Income before income taxes 173,492 23,047 11,139 (11,891) 195,787
Provision for income taxes (70,400) (8,681) (4,167) 3,838(O) (79,410)
--------- --------- -------- -------- ----------
Income before cumulative effect
of change in accounting
principles $ 103,092 $ 14,366 $ 6,972 $ (8,053) $ 116,377
========= ========= ======== ======== ==========
Earnings per share:
Primary
Income before cumulative effect
of change in accounting
principles $1.24 $1.25
===== =====
Fully diluted
Income before cumulative effect
of change in accounting
principles $1.19 $1.20
===== =====
Primary weighted average number of
shares 83,372 1,680(P) 92,752
====== 7,700(Q) ======
Fully diluted weighted average number
of shares 93,878 2,299(P) 108,685
====== 7,700(Q) =======
4,808(R)
</TABLE>
S-20
<PAGE> 21
SERVICE CORPORATION INTERNATIONAL
NOTES TO THE UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1993
Thousands
One UK pound sterling equivalent to $1.493, which represents the average
exchange rate for the period
(A) To record the acquisition of 13 separate businesses acquired at various
dates by PG between January 1, 1993 and June 30, 1994 as if such
acquisitions had occurred on January 1, 1993. Internally generated funds
were used for the purchase of these businesses; however, for purposes of
the unaudited pro forma combined statement of income, imputed interest
expense, calculated on the purchase price, has been included at a rate of
6%, which approximates the Company's UK borrowing rate.
(B) To record an adjustment to costs and expenses for the Other Acquired
Companies based on results actually achieved by the Company for the periods
subsequent to acquisition in the amount of $14,432, offset in part by
additional costs and expenses of $2,590 resulting from the effect of
applying purchase accounting adjustments, primarily amortization and
depreciation.
Interest expense was added for debt, including convertible debentures,
issued in the purchase of the Other Acquired Companies at stated rates. In
addition, interest expense has been added for the cash portion of the
purchase price assumed to be borrowed by the Company at a weighted average
annual interest rate of 3.51%, which represented the weighted average
borrowing rate under the Revolving Credit Facilities and the Company's
commercial paper for the year ended December 31, 1993. At September 30,
1994, the borrowing rate under the Revolving Credit Facilities and
commercial paper was 5.03%.
(C) To eliminate corporate expenses, consisting primarily of duplicate
personnel expenses, related to the acquisitions of GSG and PG.
(D) To record the depreciation expense (based on a 50 year useful life and
straight-line depreciation) on GSG's funeral home buildings resulting from
the estimated change in fair value over historical cost. See Note (D) to
the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(E) To record the amortization of names and reputations (based on a 40 year
straight-line amortization) created from the acquisition of PG by the
Company. See Note (G) to the Notes to the Unaudited Pro Forma Combined
Balance Sheet.
(F) To eliminate the historical GSG and PG goodwill amortization expense.
(G) To record the cost of GSG's cemetery and cremation memorialization
interment rights sold.
(H) To record the estimated amortization expense expected to result from the
costs and expenses associated with the TECONS Offering and the Senior Notes
Offering. See Note (E) to the Notes to the Unaudited Pro Forma Combined
Balance Sheet.
(I) To eliminate the interest expense on GSG debt to be repaid by the Company.
(J) To record the estimated interest expense on the net amount borrowed under
the UK Facilities in connection with the acquisitions of GSG and PG as if
such amount had been borrowed on January 1, 1993. The estimated interest
expense reflects a rate equal to the average UK pound sterling LIBOR rate
(5.86%) plus 20 basis points for the year ended December 31, 1993. At
September 30, 1994, the UK pound sterling LIBOR rate was 5.88%. See Note
(J) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(K) To record the estimated reduction in interest expense resulting from the
expected repayment of $261,114 of indebtedness under the Revolving Credit
Facilities and/or the Company's commercial paper. The reduction was
calculated using a weighted average annual interest rate of 3.51%, which
represents the Company's weighted average borrowing rate under the
Revolving Credit Facilities and the Company's commercial paper for the year
ended December 31, 1993. See Note (L) to the Notes to the Unaudited Pro
Forma Combined Balance Sheet.
S-21
<PAGE> 22
(L) To record the estimated interest expense on the Notes being issued in the
Senior Notes Offering at an assumed annual interest rate of 8.49%. See Note
(K) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(M) To record the estimated reduction in net interest expense achieved from a
planned cross currency hedging transaction as if such transaction had been
entered into on January 1, 1993. This transaction will effectively convert
$272,500 of U.S. fixed rate indebtedness into floating rate UK pound
sterling indebtedness, raising SCI's total UK pound sterling exposure to
$472,500, which is comparable to the size of the acquisitions of GSG and
PG. Such transaction is assumed to allow the Company to receive fixed rate
interest on the $272,500 at a weighted average rate of 8.38% and pay UK
pound sterling LIBOR plus 41 basis points on $200,000 and pay UK pound
sterling LIBOR on $72,500.
(N) To record the estimated dividends on the securities being issued in the
TECONS Offering at an assumed annual dividend rate of 5.75%. See Note (N)
to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(O) To record the tax effect of the pro forma adjustments, including a $947 tax
benefit from the amortization of deferred taxes resulting from indexed
increases in the tax basis of UK assets.
(P) To give effect to the additional time period during which the SCI Common
Stock (in the case of the primary and fully diluted weighted average number
of shares) and convertible debt (in the case of the fully diluted weighted
average number of shares) issued during the period between January 1, 1993
and June 30, 1994 in respect to the acquisition of the Other Acquired
Companies would have been outstanding if all of such acquisitions had
occurred as of January 1, 1993.
(Q) To reflect the issuance of 7,700 shares in the Common Stock Offering. See
Note (P) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(R) To record the impact on the fully diluted weighted average number of shares
of SCI Common Stock of the securities being issued in the TECONS Offering.
The following adjustments were made to the historical financials of GSG and PG
in order to restate historical financial statements to US GAAP:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------
HISTORIC AMOUNTS AS REPORTED IN
CONVERTED TO US UNAUDITED
DOLLARS ADJUSTMENTS TO PRO FORMA COMBINED
IN UK GAAP US GAAP STATEMENT OF INCOME
GSG PG GSG PG GSG PG
-------- -------- ----- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Revenues $ 48,885 $ 77,709 $ -- $ -- $ 48,885 $ 77,709
Costs and expenses (38,234) (58,893) (272)(1) (303)(1) (39,078) (62,222)
(572)(2) (3,026)(2)
Interest expense and other (1,372) (875) -- -- (1,372) (875)
Provision for income taxes (3,228) (5,645) 90(1) 102(1) (3,138) (5,543)
-------- -------- ----- ------- -------- --------
Net income $ 6,051 $ 12,296 $(754) $(3,227) $ 5,297 $ 9,069
======== ======== ===== ======= ======== ========
</TABLE>
- ---------------
(1) To depreciate buildings straight-line over 50 years for GSG and PG. UK GAAP
does not require the depreciation of buildings.
(2) To amortize PG's historical goodwill balance straight-line over 40 years. UK
GAAP does not require the amortization of goodwill.
S-22
<PAGE> 23
SERVICE CORPORATION INTERNATIONAL
UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
SIX MONTHS ENDED JUNE 30, 1994
<TABLE>
<CAPTION>
-------------------------------------------------------------------
HISTORICAL PRO FORMA
OTHER
THE ACQUIRED COMBINED
Thousands, except per share amounts COMPANY GSG AND PG COMPANIES ADJUSTMENTS TOTAL
--------- ---------- --------- ----------- ---------
<S> <C> <C> <C> <C> <C>
Revenues $ 524,120 $ 66,925 $ 15,271 $ 1,146(A) $ 607,462
Costs and expenses (357,837) (52,737) (13,583) (770)(A) (422,047)
1,907(B)
2,818(C)
(35)(D)
(3,305)(E)
1,868(F)
(218)(G)
(155)(H)
--------- -------- -------- ------- ---------
Gross profit 166,283 14,188 1,688 3,256 185,415
General and administrative expenses (24,871) -- -- -- (24,871)
--------- -------- -------- ------- ---------
Income from operations 141,412 14,188 1,688 3,256 160,544
Interest expense (32,456) (1,023) (466) (329)(A) (41,337)
(1,228)(B)
581(I)
(5,215)(J)
5,131(K)
(8,490)(L)
2,158(M)
Dividends on convertible preferred
stock of subsidiary -- -- -- (4,313)(N) (4,313)
Other income 4,686 197 -- -- 4,883
--------- -------- -------- ------- ---------
Income before income taxes 113,642 13,362 1,222 (8,449) 119,777
Provision for income taxes (46,002) (4,878) (474) 2,928(O) (48,426)
--------- -------- -------- ------- ---------
Net income $ 67,640 $ 8,484 $ 748 $(5,521) $ 71,351
========= ======== ======== ======= =========
Earnings per share:
Primary $0.79 $0.76
===== =====
Fully diluted $0.74 $0.72
===== =====
Primary weighted average number of
shares 86,033 366(P) 94,099
====== 7,700(Q) ======
Fully diluted weighted average number
of shares 96,166 455(P) 109,129
====== 7,700(Q) =======
4,808(R)
</TABLE>
S-23
<PAGE> 24
SERVICE CORPORATION INTERNATIONAL
NOTES TO THE UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
SIX MONTHS ENDED JUNE 30, 1994
Thousands
One UK pound sterling equivalent to $1.5125, which represents the average
exchange rate for the period
(A) To record the acquisition of five separate businesses acquired at various
dates by PG between January 1, 1994 and June 30, 1994 as if such
acquisitions had occurred on January 1, 1994. Internally generated funds
were used for the purchase of these businesses; however, for purposes of
the unaudited pro forma combined statement of income, imputed interest
expense, calculated on the purchase price, has been included at a rate of
6%, which approximates the Company's UK borrowing rate.
(B) To record an adjustment to costs and expenses for the Other Acquired
Companies based on results actually achieved by the Company for the periods
subsequent to acquisition in the amount of $2,408, offset in part by
additional costs and expenses of $501 resulting from the effect of applying
purchase accounting adjustments, primarily amortization and depreciation.
Interest expense was added for debt, including convertible debentures,
issued in the purchase of the Other Acquired Companies at stated rates. In
addition, interest expense has been included for the cash portion of the
purchase price assumed to be borrowed by the Company at a weighted average
annual interest rate of 3.93%, which represented the weighted average
borrowing rate under the Revolving Credit Facilities and the Company's
commercial paper for the six months ended June 30, 1994. At September 30,
1994, the borrowing rate under the Revolving Credit Facilities and
commercial paper was 5.03%.
(C) To eliminate corporate expenses, consisting primarily of duplicate
personnel expenses, related to the acquisitions of GSG and PG.
(D) To record the depreciation expense (based on a 50 year useful life and
straight-line depreciation) on GSG's funeral home buildings resulting from
the estimated change in fair value over historical cost. See Note (D) to
the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(E) To record the amortization of names and reputations (based on a 40 year
straight-line amortization) created from the acquisition of PG by the
Company. See Note (G) to the Notes to the Unaudited Pro Forma Combined
Balance Sheet.
(F) To eliminate the historical GSG and PG goodwill amortization expense.
(G) To record the cost of GSG's cemetery and cremation memorialization
interment rights sold.
(H) To record the estimated amortization expense expected to result from the
costs and expenses associated with the TECONS Offering and the Senior Notes
Offering. See Note (E) to the Notes to the Unaudited Pro Forma Balance
Sheet.
(I) To eliminate the interest expense on GSG debt to be repaid by the Company.
(J) To record the estimated interest expense on the net amount borrowed under
the UK Facilities in connection with the acquisitions of GSG and PG as if
such amount had been borrowed on January 1, 1994. The estimated interest
expense reflects a rate equal to the average UK pound sterling LIBOR rate
(5.11%) plus 20 basis points for the six months ended June 30, 1994. At
September 30, 1994, the UK pound sterling LIBOR rate was 5.88%. See Note
(J) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(K) To record the estimated reduction in interest expense resulting from the
expected repayment of $261,114 of indebtedness under the Revolving Credit
Facilities and/or the Company's commercial paper. The reduction was
calculated using a weighted average annual interest rate of 3.93%, which
represents the Company's weighted average borrowing rate under the
Revolving Credit Facilities and the Company's commercial paper for the six
months ended June 30, 1994. See Note (L) to the Notes to the Unaudited Pro
Forma Combined Balance Sheet.
S-24
<PAGE> 25
(L) To record the estimated interest expense on the Notes being issued in the
Senior Notes Offering at an assumed annual interest rate of 8.49%. See Note
(K) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(M) To record the estimated reduction in net interest expense achieved from a
planned cross currency hedging transaction as if such transaction had been
entered into on January 1, 1994. This transaction will effectively convert
$272,500 of U.S. fixed rate indebtedness into floating rate UK pound
sterling indebtedness, raising SCI's total UK pound sterling exposure to
$472,500, which is comparable to the size of the acquisitions of GSG and
PG. Such transaction is assumed to allow the Company to receive fixed rate
interest on the $272,500 at a weighted average rate of 8.38% and pay UK
pound sterling LIBOR plus 41 basis points on $200,000 and pay UK pound
sterling LIBOR on $72,500.
(N) To record the estimated dividends on the securities being issued in the
TECONS Offering at an assumed annual dividend rate of 5.75%. See Note (N)
to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(O) To record the tax effect of the pro forma adjustments, including a $474 tax
benefit from the amortization of deferred taxes resulting from indexed
increases in the tax basis of UK assets.
(P) To give effect to the additional time period during which the SCI Common
Stock (in the case of the primary and fully diluted weighted average number
of shares) and convertible debt (in the case of the fully diluted weighted
average number of shares) issued during the period between January 1, 1994
and June 30, 1994 in respect to the acquisition of the Other Acquired
Companies would have been outstanding if all of such acquisitions had
occurred as of January 1, 1994.
(Q) To reflect the issuance of 7,700 shares in the Common Stock Offering. See
Note (P) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(R) To record the impact on the fully diluted weighted average number of shares
of SCI Common Stock of the securities being issued in the TECONS Offering.
The following adjustments were made to the historical financials of GSG and PG
in order to restate historical financial statements to US GAAP:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------
HISTORIC AMOUNTS
CONVERTED TO AS REPORTED IN UNAUDITED
US DOLLARS ADJUSTMENTS TO PRO FORMA COMBINED
IN UK GAAP US GAAP STATEMENT OF INCOME
GSG PG GSG PG GSG PG
-------- -------- ----- ------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
Revenues $ 25,986 $ 40,939 $ -- $ -- $ 25,986 $ 40,939
Costs and
expenses (19,625) (30,952) (138)(1) (154)(1) (20,053) (32,684)
(290)(2) (1,578)(2)
Interest expense
and other (581) (245) -- -- (581) (245)
Provision for
income taxes (1,906) (3,068) 45(1) 51(1) (1,861) (3,017)
-------- -------- ----- ------- -------- --------
Net income $ 3,874 $ 6,674 $(383) $(1,681) $ 3,491 $ 4,993
======== ======== ===== ======= ======== ========
</TABLE>
- ---------------
(1) To depreciate buildings straight-line over 50 years for GSG and PG. UK GAAP
does not require the depreciation of buildings.
(2) To amortize PG's historical goodwill balance straight-line over 40 years. UK
GAAP does not require the amortization of goodwill.
S-25
<PAGE> 26
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
OVERVIEW
The majority of the Company's funeral homes and cemeteries are managed in groups
called clusters. Clusters are primarily designated in metropolitan areas to take
advantage of operational efficiencies, including the sharing of operating
expenses such as service personnel, vehicles, preparation services, clerical
staff and certain building facility costs. At June 30, 1994, the Company has
approximately 166 clusters which ranged in size from two operations to 53
operations. There may be more than one cluster in a given metropolitan area,
depending upon the level and degree of shared costs.
The cluster management approach recognizes that, as the Company adds operations
to a geographic area that contains an existing Company presence, additional
operating efficiencies through cost sharing will be achieved and the Company
will also be in a better position to serve the population that resides within
the area served by the cluster. Funeral service and cemetery operations
primarily depend upon a long-term development of customer relationships and
loyalty. Over time, these client families may relocate within a cluster area
which may justify the relocation or addition of Company locations. The Company
attempts to satisfy this need for convenient locations by either acquiring
existing independent locations within the Company's cluster areas or
constructing satellite funeral homes (sometimes on Company-owned cemeteries)
while still maintaining the sharing of certain expenses within that cluster of
operations.
RESULTS OF OPERATIONS
Six Months Ended June 30, 1994 Compared to Six Months Ended June 30, 1993
Segment information for the Company's three lines of business are as follows:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------
SIX MONTHS ENDED JUNE 30, PERCENTAGE
Thousands 1994 1993 INCREASE INCREASE
-------- -------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Funeral $350,008 $297,800 $52,208 17.5%
Cemetery 164,776 136,304 28,472 20.9
Financial services 9,336 7,316 2,020 27.6
-------- -------- -------
524,120 441,420 82,700 18.7
-------- -------- -------
Costs and expenses:
Funeral 240,612 206,665 33,947 16.4
Cemetery 112,073 97,122 14,951 15.4
Financial services 5,152 4,242 910 21.5
-------- -------- -------
357,837 308,029 49,808 16.2
-------- -------- -------
Gross profit and
margin percentage:
Funeral 109,396 31.3% 91,135 30.6% 18,261 20.0
Cemetery 52,703 32.0 39,182 28.7 13,521 34.5
Financial services 4,184 44.8 3,074 42.0 1,110 36.1
-------- -------- -------
$166,283 31.7% $133,391 30.2% $32,892 24.7%
======== ======== =======
</TABLE>
S-26
<PAGE> 27
Funeral revenues were generated as follows:
<TABLE>
<CAPTION>
--------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $311,770 $279,927 $31,843 11.4%
New clusters* 23,565 1,347 22,218
-------- -------- -------
Total clusters 335,335 281,274 54,061 19.2%
Non-cluster and disposed operations 14,673 16,526 (1,853)
-------- -------- -------
Total funeral revenues $350,008 $297,800 $52,208 17.5%
======== ======== =======
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
The $31,843,000 increase in revenues at existing clusters was the result of
5,052 or 6.1% more funeral services performed and a $168 or 4.9% higher average
sales price. Included in this increase was $21,372,000 in revenues from
locations acquired since the beginning of 1993. It is anticipated that the
Company's revenue growth will primarily be generated from acquired operations
(added to existing clusters and the creation of new clusters) as well as higher
average sales prices.
During the six months ended June 30, 1994, the Company sold $108,749,000 of
prearranged funeral services compared to $70,142,000 for the same period in
1993. The revenues from prearranged funeral services are deferred and will be
recognized in funeral revenues in the periods that the funeral services are
performed. The current emphasis on sales of prearranged funerals is expected to
continue.
Funeral costs were incurred as follows:
<TABLE>
<CAPTION>
--------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $198,393 $180,646 $17,747 9.8%
New clusters* 16,683 868 15,815
-------- -------- -------
Total clusters 215,076 181,514 33,562 18.5%
Non-cluster and disposed operations 11,390 12,334 (944)
Administrative overhead 14,146 12,817 1,329
-------- -------- -------
Total funeral costs $240,612 $206,665 $33,947 16.4%
======== ======== =======
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
Total funeral gross profit margin increased to 31.3% compared to 30.6% recorded
last year. This gross profit margin improvement was achieved despite the large
number of acquisitions, added to both existing and new clusters, which have
occurred since the beginning of 1993. Typically, acquisitions will temporarily
exhibit slightly lower gross profit margins than the Company's existing
locations. Acquisitions since the beginning of 1993 accounted for $15,750,000 of
the existing cluster cost increase. The improved gross profit margin for
existing clusters reflects the increased revenues discussed above, without a
corresponding percentage increase in costs at other funeral homes included in
existing clusters. Administrative overhead costs related to funeral operations
decreased to 4.0% of revenues in 1994 compared to 4.3% of revenues in 1993.
S-27
<PAGE> 28
Cemetery revenues were generated as follows:
<TABLE>
<CAPTION>
------------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $152,634 $130,671 $21,963 16.8%
New clusters* 6,599 -- 6,599
-------- -------- -------
Total clusters 159,233 130,671 28,562 21.9%
Non-cluster and disposed operations 5,543 5,633 (90)
-------- -------- -------
Total cemetery revenues $164,776 $136,304 $28,472 20.9%
======== ======== =======
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
Revenues for the existing clusters increased primarily due to increased pre-need
and at need sales of merchandise and services. Included in the existing cluster
increase was $9,367,000 in increased revenues from cemeteries acquired since the
beginning of 1993.
Cemetery costs were incurred as follows:
<TABLE>
<CAPTION>
-------------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
-------- ------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $ 97,135 $85,560 $11,575 13.5%
New clusters* 3,182 -- 3,182
-------- ------- -------
Total clusters 100,317 85,560 14,757 17.2%
Non-cluster and disposed operations 3,535 4,092 (557)
Administrative overhead 8,221 7,470 751
-------- ------- -------
Total cemetery costs $112,073 $97,122 $14,951 15.4%
======== ======= =======
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
Costs at existing clusters increased $11,575,000 due primarily to an increase of
$6,626,000 from cemeteries acquired since the beginning of 1993. Costs from
other existing cluster cemeteries increased $4,949,000 due to the costs
associated with the increased revenues discussed above. The cemetery gross
margin of 32.0% this year compared to 28.7% last year reflects the strong
revenue growth as well as continued cost control, particularly in selling
expenses. Administrative overhead costs have decreased to 5.0% of revenues this
year compared to 5.5% last year.
Financial service revenues and costs have increased as a result of increased
loans outstanding. Improved interest rate spreads have increased the gross
margin percentage to 44.8% this year from 42.0% last year. The average
outstanding loan portfolio during the current year was $246,408,000 with an
average interest rate spread of 3.45% compared to $204,462,000 and 3.21%,
respectively, last year.
General and administrative expenses increased by $5,984,000 or 31.7%. Of the
increase, $3,503,000 is attributable to personnel expenses primarily in the form
of restricted stock costs. Professional fees have increased $2,455,000 in the
current year primarily from legal costs associated with the ongoing informal
Securities and Exchange Commission investigation of the Company. As a percentage
of revenues, general and administrative expenses were 4.7% this year compared to
4.3% last year.
Interest expense, which excludes the amount incurred through financial service
operations, increased $3,568,000 or 12.4% during the current year primarily due
to the issuance of $150,000,000 of 7.875% debentures in
S-28
<PAGE> 29
February 1993 and increased borrowings under the Company's lines of credit and
commercial paper primarily used to fund the Company's acquisition program.
The $2,021,000 increase in other income results primarily from the sale of
excess real estate and additional equity income on corporate investments in
1994.
The provision for income taxes has increased to 40.5% from 39.3% last year
primarily due to the August 1993 increase in the federal corporate tax rate.
Year to Year Comparisons -- Change in Accounting Principles
Effective January 1, 1993, the Company changed its method of accounting for
prearranged funeral service contracts and cemetery sales. For a more detailed
discussion of these changes, see Note 2 to the consolidated financial statements
in Item 8 of the Form 10-K for the year ended December 31, 1993 (the "Form
10-K"). The cumulative effect of these changes resulted in an after tax charge
of $2,031,000 or $.03 per share on January 1, 1993. Generally these changes will
result in reduced funeral revenues and funeral operating income, at least in the
near future, due to the deferral of previously recognized prearranged funeral
service trust fund income until performance of the specific funeral.
Additionally, these changes will generally result in higher cemetery revenues
and cemetery operating income because all cemetery sales and costs are recorded
in current income. See Item 3, Legal Proceedings, in the Form 10-K for
information regarding an informal investigation by the Securities and Exchange
Commission and the Company's Form 8-K dated October 18, 1994.
For purposes of management's discussion and analysis of results of operations
and financial condition, all comparisons to 1992 and 1991 reflect the pro forma
effects of applying the new accounting principles as if the changes had occurred
on December 31, 1990. The following table presents the pro forma results for the
years ended 1992 and 1991:
<TABLE>
<CAPTION>
-------------------------------------
YEARS ENDED DECEMBER 31,
UNAUDITED
AS REPORTED PRO FORMA
Thousands 1993 1992 1991
----------- --------- ---------
<S> <C> <C> <C>
Revenues:
Funeral $ 603,099 $ 532,914 $ 430,565
Cemetery 280,421 217,100 194,434
Financial services 15,658 10,741 14,823
--------- --------- ---------
899,178 760,755 639,822
Costs and expenses:
Funeral (426,008) (379,223) (307,090)
Cemetery (200,682) (164,188) (149,822)
Financial services (9,168) (6,632) (10,666)
--------- --------- ---------
(635,858) (550,043) (467,578)
--------- --------- ---------
Gross profit 263,320 210,712 172,244
General and administrative expenses (43,706) (38,693) (35,448)
Interest expense (59,631) (53,902) (42,429)
Other income 13,509 9,876 8,241
--------- --------- ---------
Income before income taxes 173,492 127,993 102,608
Income taxes (70,400) (48,500) (33,200)
--------- --------- ---------
Income before cumulative effect of change in accounting
principles $ 103,092 $ 79,493 $ 69,408
========= ========= =========
</TABLE>
S-29
<PAGE> 30
Year Ended December 31, 1993 Compared to Year Ended December 31, 1992
In 1993, total funeral revenues increased $70,185,000 or 13.2% over 1992.
Funeral revenues were as follows:
<TABLE>
<CAPTION>
--------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
-------- -------- ---------- ----------
(THOUSANDS)
<S> <C> <C> <C> <C>
Existing clusters $548,771 497,092 $51,679 10.4%
New clusters** 28,376 2,259 26,117
-------- ------- -------
Total clusters 577,147 499,351 77,796 15.6%
Non-cluster and disposed operations 25,952 33,563 (7,611)
-------- ------- -------
Total funeral revenues $603,099 532,914 $70,185 13.2%
======== ======= =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
The $51,679,000 increase in revenues at existing clusters was the result of
10,193 or 6.9% more funeral services performed and a $111 or 3.3% higher average
sales price. Included in this increase were $29,281,000 in revenues from
locations acquired during the two year period. Overall, funeral services
performed are expected to grow slowly for the near future and it is expected
that the Company's revenue growth will primarily be generated from acquired
operations (added to existing clusters and the creation of new clusters) as well
as higher average sales prices.
During 1993, the Company sold $159,000,000 of prearranged funeral services
compared to $119,000,000 for 1992. These prearranged funeral services are
deferred and will be reflected in funeral revenues in the periods that the
funeral services are performed. An increased emphasis on sales of prearranged
funerals is expected to continue.
Total funeral costs increased $46,785,000 or 12.3% in 1993. Funeral costs were
as follows:
<TABLE>
<CAPTION>
---------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
-------- -------- ---------- ----------
(THOUSANDS)
<S> <C> <C> <C> <C>
Existing clusters $357,118 $324,893 $32,225 9.9%
New clusters** 21,571 1,755 19,816
-------- -------- -------
Total clusters 378,689 326,648 52,041 15.9%
Non-cluster and disposed operations 18,838 27,654 (8,816)
Administrative overhead 28,481 24,921 3,560
-------- -------- -------
Total funeral costs $426,008 $379,223 $46,785 12.3%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
Existing cluster funeral costs, expressed as a percentage of revenues, were
65.1%, which was slightly lower than the 65.4% recorded in 1992. This gross
profit margin improvement was achieved despite the large number of acquisitions
which occurred during the two year period. Typically, acquisitions will
temporarily exhibit slightly lower gross profit margins than the Company's
existing locations. These acquisitions accounted for $19,548,000 of the existing
cluster cost increase. The improved gross profit margin reflects increased
revenues, reduced personnel costs (the largest funeral expense item) and
facility costs at other funeral homes included in existing clusters. As a
percentage of revenues, administrative overhead costs related to funeral
operations remained at 4.7% in both years.
S-30
<PAGE> 31
Total cemetery revenues increased $63,321,000 or 29.2% over 1992. Cemetery
revenues were as follows:
<TABLE>
<CAPTION>
------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $254,343 $202,709 $51,634 25.5%
New clusters** 14,818 946 13,872
-------- -------- -------
Total clusters 269,161 203,655 65,506 32.2%
Non-cluster and disposed operations 11,260 13,445 (2,185)
-------- -------- -------
Total cemetery revenues $280,421 $217,100 $63,321 29.2%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
Revenues for the existing clusters increased due to increased at-need and
pre-need sales volumes, higher average at-need and pre-need contract prices and
additional earnings from cemetery perpetual care and merchandise and service
trust funds. Included in the existing cluster increase was $40,059,000 in
increased revenues from cemeteries acquired during the two year period.
Total cemetery costs increased $36,494,000 or 22.2% over the prior year.
Cemetery costs were as follows:
<TABLE>
<CAPTION>
------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $167,635 $141,178 $26,457 18.7%
New clusters** 8,414 892 7,522
-------- -------- -------
Total clusters 176,049 142,070 33,979 23.9%
Non-cluster and disposed operations 8,038 10,437 (2,399)
Administrative overhead 16,595 11,681 4,914
-------- -------- -------
Total cemetery costs $200,682 $164,188 $36,494 22.2%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
The entire increase in existing cluster costs resulted from increased costs at
cemeteries acquired during the two year period. There was no increase in costs
at other cemeteries included in existing clusters despite the sales increase
discussed above. Cost containment in the areas of selling and maintenance
expenses contributed to the lack of increase. Cemetery costs, expressed as a
percentage of revenues, at existing clusters decreased to 65.9% this year from
69.6% in 1992. The Company believes that the gross margins realized in 1993 are
achievable in the future through continued aggressive sales as well as cost
containment programs. Administrative overhead costs have increased slightly,
when expressed as a percentage of revenues, to 5.9% currently from 5.4% in 1992.
Financial service revenues and costs have increased in 1993 as a result of
increased loans outstanding and improved interest rate spreads. The average
outstanding loan portfolio during 1993 was $215,726,000 with an average interest
rate spread of 3.3% compared to $143,773,000 and 2.6%, respectively, in 1992.
Financial services are provided through Provident which is a major source of
funding to independent funeral home and cemetery operators. Unlike a commercial
bank, Provident does not have access to low-cost deposit funds so its net
interest margin is lower because it borrows money at market rates. Additionally,
Provident does not incur as much administrative costs as does a commercial bank.
Through Provident's relationships with these borrowers, the Company derives the
benefit of developing a continuing relationship with these entities. The credit
risk for this type of leading is considered minimal to the Company.
S-31
<PAGE> 32
General and administrative expenses increased by $5,013,000 or 13.0%. The
increase is primarily attributable to compensation expense in connection with
performance-based vesting of restricted stock grants to Company management.
Vesting is based on a formula primarily tied to earnings per share growth.
Interest expense, which excludes the amount incurred through financial service
operations, increased $5,729,000 or 10.6% during 1993. In February 1993, the
Company issued $150,000,000 of 7.875% debentures due in 2013. The proceeds were
primarily used to repay existing credit agreement borrowings. Also in February
1993, the Company called the $100,000,000 6.5% convertible debentures originally
issued in 1986. Holders of the debentures converted $97,164,000 into Company
common stock at $17.33 per share (5,607,000 shares) with the remaining
$2,836,000 redeemed in cash. Additionally, interest expense was reduced by
decreased average interest rates on amounts borrowed under the Company's credit
agreements during 1993 compared to 1992.
Other income includes the recognition of gains from the sale of excess real
estate and existing businesses during both periods.
The provision for income taxes has increased to 40.6% from 37.9% during 1992
primarily due to the enactment of the Omnibus Budget Reconciliation Act of 1993
in August 1993 which increased corporate tax rates retroactively to January 1,
1993. As a result of the new law, the Company's 1993 tax expense increased
$2,431,000 from increased deferred income taxes and $1,700,000 from the higher
corporate tax rate on 1993 earnings ($.05 earnings per share).
Year Ended December 31, 1992 Compared to Year Ended December 31, 1991
In 1992, total funeral revenues increased $102,349,000 or 23.8% over 1991.
Funeral revenues were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, PERCENTAGE
Thousands 1992* 1991* INCREASE INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $456,617 $390,807 $65,810 16.8%
New clusters** 43,377 11,190 32,187
-------- -------- --------
Total clusters 499,994 401,997 97,997 24.4%
Non-cluster and disposed operations 32,920 28,568 4,352
-------- -------- --------
Total funeral revenues $532,914 $430,565 $102,349 23.8%
======== ======== ========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
The $65,810,000 increase in revenues at existing clusters, which included an
increase of $59,598,000 from acquired operations, was the result of 13,857 or
11.4% more funeral services performed and a $157 or 4.9% higher average sales
price.
Total funeral costs increased $72,133,000 or 23.5% in 1992. Funeral costs were
as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, PERCENTAGE
Thousands 1992* 1991* INCREASE INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $292,331 $254,186 $38,145 15.0%
New clusters** 34,972 9,063 25,909
-------- -------- -------
Total clusters 327,303 263,249 64,054 24.3%
Non-cluster and disposed operations 26,999 26,032 967
Administrative overhead 24,921 17,809 7,112
-------- -------- -------
Total funeral costs $379,223 $307,090 $72,133 23.5%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
S-32
<PAGE> 33
All of the increase in costs at existing clusters was the result of funeral
homes acquired during the two year period. For other funeral homes included in
existing clusters, personnel costs increased primarily as the result of higher
benefit costs. This was offset by decreased merchandise costs, reflecting more
effective purchasing arrangements with vendors and an additional year-end
discount from the revision of a merchandise purchasing contract with one vendor.
Discounts should continue through 1993 based on the provisions of the revised
contract as well as with agreements with other vendors. Facility costs also
declined when compared to 1991.
Total cemetery revenues increased $22,666,000 or 11.7% over 1991. Cemetery
revenues were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1992* 1991* (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $186,051 $171,273 $14,778 8.6%
New clusters** 13,823 5,308 8,515
-------- -------- -------
Total clusters 199,874 176,581 23,293 13.2%
Non-cluster and disposed operations 17,226 17,853 (627)
-------- -------- -------
Total cemetery revenues $217,100 $194,434 $22,666 11.7%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
Revenues at existing clusters, which include an increase of $11,937,000 from
acquired operations, increased a total of $14,778,000 or 8.6% due to increased
at-need sales, higher average at-need and pre-need contract prices partially
offset by a slight decline in the number of pre-need contracts sold.
Total cemetery costs increased $14,366,000 or 9.6% over 1991. Cemetery costs
were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1992* 1991* (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $127,626 $116,711 $10,915 9.4%
New clusters** 10,502 4,618 5,884
-------- -------- -------
Total clusters 138,128 121,329 16,799 13.8%
Non-cluster and disposed operations 14,379 13,315 1,064
Administrative overhead 11,681 15,178 (3,497)
-------- -------- -------
Total cemetery costs $164,188 $149,822 $14,366 9.6%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
Costs at existing clusters, which include an increase of $9,667,000 from
acquired operations, increased a total of $10,915,000 or 9.4%. Merchandise and
repair and maintenance expenses increased at other cemeteries included in
existing clusters. Cemetery overhead costs declined in 1992 due to the closing
of the San Diego administrative office in late 1991. These costs were either
eliminated or transferred to general and administrative expense at the Houston
corporate offices.
Financial service revenues and costs decreased during 1992 as a result of a
decrease in the average outstanding loan portfolio and borrowed amounts for
Provident in 1992. Gross profit remained level for both years. For the year
1992, Provident's outstanding loan portfolio averaged $143,773,000 with an
average interest rate spread of 2.6% compared to $148,652,000 and 2.4%,
respectively, in 1991.
General and administrative expenses increased in 1992 by $3,245,000 or 9.2%.
Personnel costs, including the cost of restricted stock grants and other
employee benefit accruals, increased $2,141,000. The remainder of the
S-33
<PAGE> 34
increase resulted primarily from higher facility and administrative costs. A
portion of the additional costs resulted from the relocation of cemetery
administrative offices from San Diego to Houston.
Interest expense, which excludes the amount incurred through financial service
operations, increased $11,473,000 or 27.0% during 1992. In October 1991, the
Company issued $172,500,000 of 6.5% convertible debentures due in 2001. Also
contributing to the increase was the interest on debt assumed and not refinanced
from various 1991 acquisitions. Lower interest rates in 1992 helped to offset
increases in interest expense from increased average amounts borrowed under the
Company's credit agreements.
Other income increased during 1992 due primarily to the recognition of two gains
in 1992. One resulted from the collection of a note receivable that had
previously been written off, and the other from the sale of an equity
investment. Partially offsetting the increase was less income on corporate
investments. Both years include pretax gains associated with the disposition of
certain excess funeral and cemetery real property.
During the third quarter of 1991, certain Internal Revenue Service audits of the
Company were settled and resulted in the recognition of $4,800,000 or $.07 per
share of income tax benefits.
Financial Condition at June 30, 1994
The Company's acquisition of funeral homes and cemeteries and capital
expenditures, including major improvements to existing properties, continue to
require significant amounts of cash. Funds generated from earnings of existing
funeral and cemetery operations, together with unused lines of credit or other
available borrowings, are expected to be sufficient for the Company to continue
its current acquisition and operating policies. At August 5, 1994, the Company
had available approximately $298,000,000 of borrowing capacity under its various
credit lines.
In addition to the sources of cash from operations and credit lines, the Company
has 12,149,000 shares of common stock, $70,227,000 of guarantees of promissory
notes and $74,382,000 of convertible debentures registered with the Commission
to be used exclusively for future acquisitions.
Current maturities of long-term debt include $48,660,000 of medium-term notes
that mature in the first half of 1995. The Company's total debt to
capitalization ratio increased slightly to 55.8% from 55.1% at December 31,
1993.
Hedging Transactions (see Note 5 to Form 10-Q for the quarter ended June 30,
1994)
The Company has entered into hedging transactions to reduce its exposure to
adverse fluctuations in interest and foreign exchange rates. While the hedging
transactions are subject to risk of loss from change in interest rates and
exchange rates, these losses would generally be offset by gains on the exposures
being hedged. The Company has realized US $1,093,000 losses on contracts entered
into as hedge transactions since the beginning of 1993. These realized losses
were deferred and are being amortized into income over periods ranging from
eight months to five years.
At June 30, 1994, the Company had outstanding foreign currency and interest rate
swaps in the notional amounts of Australian dollar $142,715,000 and US
$75,000,000. As of June 30, 1994, net unrealized losses before taxes from these
hedging agreements were estimated to be US $3,800,000 (which is the estimated
cost to terminate these hedging agreements). In the opinion of management, such
losses were offset by the increased value of the exposures being hedged.
S-34
<PAGE> 35
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
TO NON-UNITED STATES HOLDERS
The following is a general discussion of certain United States federal income
and estate tax consequences of the ownership and disposition of the Common Stock
by non-United States holders, but does not purport to be a complete analysis of
all the potential tax considerations relating thereto.
As used herein, "non-United States holder" means a corporation, individual or
partnership that is, as to the United States, a foreign corporation, a
non-resident alien individual or a foreign partnership, and it means any estate
or trust which is not subject to United States taxation on income from sources
without the United States that is not effectively connected with the conduct of
a trade or business within the United States.
This discussion is based upon the Code, Treasury Regulations, United States
Internal Revenue Service ("IRS") rulings and judicial decisions now in effect,
all of which are subject to change (possibly with retroactive effect) or
different interpretations. This discussion does not purport to deal with all
aspects of federal income and estate taxation that may be relevant to a
particular non-United States holder's decision to purchase the Common Stock.
ALL PROSPECTIVE NON-UNITED STATES PURCHASERS OF THE COMMON STOCK ARE ADVISED TO
CONSULT THEIR OWN TAX ADVISORS REGARDING THE UNITED STATES FEDERAL, STATE, LOCAL
AND NON-UNITED STATES TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE COMMON STOCK.
DIVIDENDS
Dividends paid to a non-United States holder of the Common Stock will be subject
to withholding of United States federal income tax at a 30% rate or such lower
rate as may be specified by an applicable income tax treaty. (Under currently
effective Treasury Regulations, dividends paid to an address in a foreign
country are presumed to be paid to a resident of such country in determining the
applicability of a treaty for such purposes. Proposed Treasury Regulations, if
finally adopted, would require a non-United States holder to file certain forms
to obtain the benefit of any applicable tax treaty providing for a lower rate of
withholding tax on dividends. Such forms would contain the holder's name and
address and an official statement by the competent authority in the foreign
country (as designated in the applicable tax treaty) attesting to the holder's
status as a resident thereof.) However, except as may be otherwise provided in
an applicable income tax treaty, a non-United States holder will be taxed at
ordinary federal income tax rates (on a net income basis) on dividends that are
effectively connected with the conduct of a trade or business of such non-United
States holder within the United States and will not be subject to the
withholding tax described above. If such non-United States holder is a foreign
corporation, it may also be subject to a United States branch profits tax at a
30% rate or such lower rate as may be specified by an applicable income tax
treaty.
A non-United States holder that is eligible for a reduced rate of United States
withholding tax pursuant to an income tax treaty may obtain a refund of any
excess amounts withheld by filing an appropriate claim for refund with the IRS.
DISPOSITION OF STOCK
Non-United States holders generally will not be subject to United States federal
income tax in respect of gain recognized on a disposition of the Common Stock
unless (i) the gain is effectively connected with a trade or business conducted
by the non-United States holder within the United States (in which case the
branch profits tax described under "Dividends" above may also apply if the
holder is a foreign corporation), (ii) in the case of a non-United States holder
who is a non-resident alien individual and holds the Common Stock as a capital
asset, such holder is present in the United States for 183 or more days in the
taxable year of the disposition and certain other conditions are met, (iii) the
non-United States holder is subject to tax pursuant to the provisions of the
United States federal tax law applicable to certain United States expatriates or
(iv) the Company is or has been a "United States real property holding
corporation" for federal income tax purposes and, in the event
S-35
<PAGE> 36
that the Common Stock is considered "regularly traded," the non-United States
holder held directly or indirectly at any time during the five-year period
ending on the date of disposition more than five percent of the Common Stock.
Generally, this last rule for stock in United States real property holding
corporations takes precedence over relief provided by tax treaties.
FEDERAL ESTATE TAXES
Common Stock that is owned or treated as being owned at the time of death by a
non-United States holder who is a non-resident alien individual will be included
in such holder's gross estate for United States federal estate tax purposes,
unless an applicable estate tax treaty provides otherwise.
INFORMATION REPORTING REQUIREMENTS AND BACKUP WITHHOLDING
Generally, dividends paid to non-United States holders outside the United States
that are subject to the 30% or treaty-reduced rate of withholding tax will be
exempt from backup withholding tax. As a general matter, information reporting
and backup withholding will not apply to a payment by a foreign office of a
foreign broker of the proceeds of a sale of Common Stock effected outside the
United States. However, information reporting requirements (but not backup
withholding) will apply to a payment by a foreign office of a broker of the
proceeds of a sale of Common Stock effected outside the United States where that
broker (i) is a United States person, (ii) is a foreign person that derives 50%
or more of its gross income for certain periods from the conduct of a trade or
business in the United States or (iii) is a "controlled foreign corporation" as
defined in the Code (generally, a foreign corporation controlled by United
States shareholders), unless the broker has documentary evidence in its records
that the holder is a non-United States holder and certain conditions are met or
the holder otherwise establishes an exemption. Payment by a United States office
of a broker of the proceeds of a sale of Common Stock is subject to both backup
withholding (generally at a rate of 31%) and information reporting unless the
holder certifies to the payor in the manner required as to its non-United States
status under penalties of perjury or otherwise establishes an exemption.
A non-United States holder may obtain a refund of any amounts withheld under the
backup withholding rules by filing an appropriate claim for refund with the IRS.
S-36
<PAGE> 37
UNDERWRITING
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated the date hereof (the "Underwriting Agreement"), the Underwriters
named below have severally agreed to purchase, and the Company has agreed to
sell to them, severally, the respective number of shares of Common Stock set
forth opposite their names below:
<TABLE>
<CAPTION>
---------
NUMBER OF
SHARES
---------
<S> <C>
U.S. UNDERWRITERS:
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
CS First Boston Corporation
Dean Witter Reynolds Inc.
---------
Subtotal 5,390,000
---------
INTERNATIONAL MANAGERS:
J.P. Morgan Securities Ltd.
Merrill Lynch International Limited
Cazenove & Co.
---------
Subtotal 2,310,000
---------
Total 7,700,000
=========
</TABLE>
The Underwriting Agreement provides that the obligations of the several
Underwriters to pay for and accept delivery of the shares of Common Stock
offered hereby are subject to the approval of certain legal matters by their
counsel and to certain other conditions. The Underwriters are committed to take
and pay for all of the shares of Common Stock offered hereby (other than those
covered by the over-allotment option described below) if any are taken. The
closing of the United States Offering is a condition to the closing of the
International Offering, and the closing of the International Offering is a
condition to the closing of the United States Offering.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, each U.S. Underwriter has represented and agreed that, with certain
exceptions set forth below, (a) it is not purchasing any shares of Common Stock
being sold by it (the "U.S. Shares") for the account of anyone other than a
United States or Canadian Person and (b) it has not offered or sold, and will
not offer or sell, directly or indirectly, any U.S. Shares or distribute any
prospectus relating to the U.S. Shares outside the United States or Canada or to
anyone other than a United States or Canadian Person. Pursuant to the Agreement
Between U.S. and International Underwriting Syndicates, each International
Manager has represented and agreed that, with certain exceptions set forth
below, (a) it is not purchasing any shares of Common Stock being sold by it (the
"International Shares") for the account of any United States or Canadian Person
and (b) it has not offered or sold, and will not offer or sell, directly or
indirectly, any International Shares or distribute any prospectus relating to
the International Shares within the United States or Canada or to any United
States or Canadian Person. The foregoing limitations do not apply to
stabilization transactions or to certain other transactions specified in the
Agreement Between U.S. and International Underwriting Syndicates. As used
herein, "United States or Canadian Person" means any national or resident of the
United States or Canada or any corporation, pension, profit-sharing or other
trust or other entity organized under the laws of the United States or Canada or
of any political subdivision thereof (other than a branch located outside the
United States and Canada of any United States or Canadian Person) and includes
any United States or Canadian branch of a person who is otherwise not a United
States or Canadian Person.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, sales may be made between the U.S. Underwriters and the
International Managers of any number of shares of Common Stock to be purchased
pursuant to the Underwriting Agreement as may be mutually agreed. The per share
price and Shares
S-37
<PAGE> 38
or distribute any prospectus relating to the U.S. Shares outside the United
States or Canada or to anyone other than a United States or Canadian Person.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, each International Manager has represented and agreed that, with
certain exceptions set forth below, (a) it is not purchasing any shares of
Common Stock being sold by it (the "International Shares") for the account of
any United States or Canadian Person and (b) it has not offered or sold, and
will not offer or sell, directly or indirectly, any International Shares or
distribute any prospectus relating to the International Shares within the United
States or Canada or to any United States or Canadian Person. The foregoing
limitations do not apply to stabilization transactions or to certain other
transactions specified in the Agreement Between U.S. and International
Underwriting Syndicates. As used herein, "United States or Canadian Person"
means any national or resident of the United States or Canada or any
corporation, pension, profit-sharing or other trust or other entity organized
under the laws of the United States or Canada or of any political subdivision
thereof (other than a branch located outside the United States and Canada of any
United States or Canadian Person) and includes any United States or Canadian
branch of a person who is otherwise not a United States or Canadian Person.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, sales may be made between the U.S. Underwriters and the
International Managers of any number of shares of Common Stock to be purchased
pursuant to the Underwriting Agreement as may be mutually agreed. The per share
price and currency of settlement of any shares of Common Stock so sold shall be
the per share public offering price set forth on the cover page hereof, in
United States dollars, less an amount not greater than the per share amount of
the concession to dealers set forth below.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, each U.S. Underwriter has represented that it has not offered or
sold, and agreed not to offer or sell, any shares of Common Stock, directly or
indirectly, in Canada in contravention of the securities laws of Canada or any
province or territory thereof and has represented that any offer of shares of
Common Stock in Canada will be made only pursuant to an exemption from the
requirement to file a prospectus in the province or territory of Canada in which
such offer is made. Each U.S. Underwriter has further agreed to send to any
dealer who purchases from it any shares of Common Stock a notice stating in
substance that, by purchasing such shares of Common Stock, such dealer
represents and agrees that it has not offered or sold, and will not offer or
sell, directly or indirectly, any of such shares of Common Stock in Canada or
to, or for the benefit of, any resident of Canada in contravention of the
securities laws of Canada or any province or territory thereof and that any
offer of shares of Common Stock in Canada will be made only pursuant to an
exemption from the requirement to file a prospectus in the province of Canada in
which such offer is made, and that such dealer will deliver to any other dealer
to whom it sells any such shares of Common Stock a notice containing
substantially the same statement as is contained in this sentence.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, each International Manager has represented and agreed that (i) it
has not offered or sold and will not offer or sell in the United Kingdom, by
means of any document, any shares of Common Stock, other than to a person whose
ordinary business it is to buy or sell shares or debentures, whether as
principal or agent, or in circumstances which do not constitute an offer to the
public within the meaning of the Companies Act of 1985, (ii) it has complied and
will comply with all applicable provisions of the Financial Services Act 1986
with respect to anything done by it in relation to the shares of Common Stock
in, from or otherwise involving the United Kingdom, and (iii) it has only issued
or passed on and will only issue or pass on to any person in the United Kingdom
any document received by it in connection with the sale of the shares of Common
Stock if that person is of a kind described in Article 9(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1988 or is a
person to whom the document may otherwise lawfully be issued or passed on.
The Underwriters initially propose to offer the shares of Common Stock in part
directly to the public at the public offering price set forth on the cover page
of this Prospectus Supplement and in part to certain dealers at such price less
a concession not in excess of $ per share. The Underwriters may allow, and
such dealers may reallow, a concession not in excess of $ per share to
certain other dealers. After the initial public offering of the Common Stock
offered hereby, the public offering price and such concessions may be changed.
S-38
<PAGE> 39
Pursuant to the Underwriting Agreement, the Company has granted to the U.S.
Underwriters an option, exercisable for 30 days from the date of this Prospectus
Supplement, to purchase up to an additional 1,155,000 shares of Common Stock at
the public offering price set forth on the cover page hereof less the
underwriting discount. The U.S. Underwriters may exercise such option to
purchase solely for the purpose of covering over-allotments, if any, made in
connection with the sale of the shares of Common Stock offered hereby. To the
extent such option is exercised, each U.S. Underwriter will become obligated,
subject to certain conditions, to purchase approximately the same percentage of
such additional shares of Common Stock as the number set forth next to such U.S.
Underwriter's name in the preceding table bears to the total number of shares of
Common Stock offered hereby.
In the Underwriting Agreement, the Company has agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
federal securities laws, or to contribute to payments which the Underwriters may
be required to make in respect thereof.
J.P. Morgan Securities Inc. ("JPMS") and Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") are acting as the underwriters in connection with
the TECONS Offering, for which they will receive customary underwriting
compensation. In addition, JPMS, Merrill Lynch, CS First Boston Corporation
("First Boston") and Dean Witter Reynolds Inc. will act as the underwriters in
connection with the Senior Notes Offering, for which they will receive customary
underwriting compensation. As of October 5, 1994, JPMS and certain of its
affiliates beneficially owned (as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended) approximately 12.09% of the outstanding Common
Stock, such figure representing beneficial ownership in both a fiduciary
capacity on behalf of third parties and for their own accounts. As of such date,
JPMS and such affiliates owned the economic interest in less than 1.00% of the
outstanding Common Stock. JPMS and its affiliates, Merrill Lynch, First Boston
and Cazenove & Co. from time to time provide commercial banking and/or
investment banking services to the Company for which they receive customary fees
and expense reimbursement.
Upon application of the net proceeds of the Offering made hereby as described
under "Use of Proceeds," an affiliate of JPMS may receive in excess of 10% of
the net proceeds of the Offering. Pursuant to paragraph 8 of Article III,
Section 44 of the Rules of Fair Practice of the National Association of
Securities Dealers, Inc. (the "NASD"), such receipt by an affiliate of JPMS of
such proceeds requires that the Offering be made in compliance with certain of
the requirements of Schedule E ("Schedule E") to the Bylaws of the NASD. In this
regard, the Offering is being made pursuant to the provisions of such paragraph
8. Pursuant thereto, the Offering will comply with Section 3(c) of Schedule E.
The Company and each of its executive officers have agreed not to effect any
offer, sale or other disposition of any shares of Common Stock or any securities
convertible into or exchangeable for any shares of Common Stock (except, in the
case of the Company, for the shares of Common Stock offered hereby, the issuance
of shares of Common Stock upon conversion of the TECONS and upon conversion of
the Company's presently outstanding convertible securities and pursuant to the
Company's existing employee benefit plans as in effect on the date hereof and,
subject to certain limitations, in connection with acquisitions) for a period of
90 days after the date of this Prospectus Supplement, without the prior consent
of JPMS.
S-39
<PAGE> 40
***************************************************************************
* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
PROSPECTUS SUBJECT TO COMPLETION
NOVEMBER 1, 1994
$1,000,000,000
SERVICE CORPORATION INTERNATIONAL
Debt Securities, Common Stock, Preferred Stock and
Common Stock Warrants
SCI FINANCE LLC
LLC Preferred Securities
Service Corporation International (the "Company" or "SCI") may from time to time
offer (i) Debt Securities consisting of debentures, notes and/or other unsecured
evidences of indebtedness, (ii) Common Stock, par value $1.00 per share ("Common
Stock" or "SCI Common Stock"), along with Series C Junior Participating
Preferred Stock Purchase Rights, (iii) Preferred Stock, par value $1.00 per
share ("Preferred Stock"), and (iv) Common Stock Warrants. SCI Finance LLC ("SCI
Finance") may from time to time offer LLC Preferred Securities in one or more
series with the payment of dividends and the payments on liquidation or
redemption of the LLC Preferred Securities guaranteed on a subordinated basis by
SCI to the extent described herein or in the accompanying Prospectus Supplement.
See "Description of the LLC Preferred Securities -- Description of the
Guarantee" and "-- Description of the Loans" for a description of various
contractual backup undertakings of SCI with respect to the LLC Preferred
Securities. The Debt Securities, the Common Stock, along with Series C Junior
Participating Preferred Stock Purchase Rights, the Preferred Stock, the Common
Stock Warrants and the LLC Preferred Securities are collectively referred to as
the "Securities," and will have an aggregate initial offering price of up to
$1,000,000,000 (or the equivalent thereof if Debt Securities are denominated in
a currency other than U.S. dollars or in currency units). The Securities may be
offered as separate series, in amounts, at prices and on terms to be determined
at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the Securities
in respect of which this Prospectus is being delivered the terms of such
Securities, including, where applicable, (i) in the case of Debt Securities, the
specific title (including whether senior, senior subordinated or subordinated
and whether or not convertible), aggregate principal amount, denominations
(which may be in U.S. dollars, in any other currency or in composite
currencies), maturity (which may be fixed or extendible), interest rate, if any
(which may be fixed or variable), and time of payment of any interest, any terms
for redemption at the option of the Company or the holder, any terms for sinking
fund payments, any class or classes of stock into which the Debt Securities are
convertible and other conversion terms, if any, any covenants or events of
default that are in addition to or different from those described herein, any
listing on a securities exchange, the initial public offering price and any
other terms in connection with the offering and sale of such Debt Securities,
(ii) in the case of Common Stock, the initial public offering price, (iii) in
the case of Preferred Stock, the specific title, any dividend, liquidation and
other rights, any class or classes of stock into which the Preferred Stock is
convertible and other conversion terms, if any, any redemption provisions, any
sinking fund provisions, any covenants, any listing on a securities exchange,
the initial public offering price and any other terms in connection with the
offering and sale of such Preferred Stock, (iv) in the case of Common Stock
Warrants, the duration, exercise price, initial public offering price and any
other terms in connection with the offering and sale of such Common Stock
Warrants and (v) in the case of the LLC Preferred Securities, any dividend,
conversion and other rights, any listing on a securities exchange, the initial
public offering price and any other terms in connection with the offering and
sale of such LLC Preferred Securities.
The Company and SCI Finance may sell Securities to or through underwriters, and
also may sell Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased by
underwriters and the compensation, if any, of such underwriters or agents.
SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
, 1994
<PAGE> 41
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS, IF ANY, MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE
SECURITIES AND, IF THE SECURITIES ARE CONVERTIBLE, THE OUTSTANDING CLASS OR
CLASSES OF STOCK OF THE COMPANY INTO WHICH THEY ARE CONVERTIBLE, AT LEVELS ABOVE
THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED ON ANY SECURITIES EXCHANGE ON WHICH SUCH SECURITIES MAY BE LISTED, IN
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus or
the accompanying Prospectus Supplement and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Company or any underwriter, dealer or agent. Neither this Prospectus nor the
accompanying Prospectus Supplement constitutes an offer to sell or a
solicitation of an offer to buy Securities in any jurisdiction in which such
offer or solicitation is not authorized or in which the person making such offer
or solicitation is not qualified to do so or to any person to whom it is
unlawful to make such offer or solicitation.
In this Prospectus, references to "dollar" and "$" are to United States dollars,
and the terms "United States" and "U.S." mean the United States of America, its
states, its territories, its possessions and all areas subject to its
jurisdiction.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................ 3
Incorporation of Certain Documents by
Reference.......................... 4
The Company.......................... 5
SCI Finance.......................... 5
Certain Investment Considerations.... 6
Use of Proceeds...................... 6
Description of Debt Securities....... 7
Description of Preferred Stock....... 22
Description of Common Stock
Warrants........................... 25
Description of the LLC Preferred
Securities......................... 28
Certain Federal Income Tax
Considerations Regarding the LLC
Preferred Securities............... 45
Plan of Distribution................. 49
Legal Matters........................ 50
Experts.............................. 50
</TABLE>
2
<PAGE> 42
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at 450 Fifth Street N.W., Washington,
D.C. 20549; 500 West Madison Street, Chicago, Illinois 60661; and 7 World Trade
Center, New York, New York 10048. Copies of such material can also be obtained
from the public reference section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, such material can be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
Additional information regarding the Company, SCI Finance and the Securities is
contained in the Registration Statement of which this Prospectus is a part and
the exhibits relating thereto (the "Registration Statement") filed with the
Commission under the Securities Act of 1933, as amended (the "Act"). For further
information pertaining to the Company, SCI Finance and the Securities reference
is made to the Registration Statement, which may be inspected without charge at
the office of the Commission at 450 Fifth Street N.W., Washington, D.C. 20549,
and copies thereof may be obtained from the Commission at prescribed rates. This
Prospectus and the accompanying Prospectus Supplement do not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission.
Statements made in this Prospectus and the accompanying Prospectus Supplement as
to the contents of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made to
the exhibit for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such reference.
No separate financial statements of SCI Finance have been included or
incorporated by reference herein. SCI Finance and SCI do not consider that such
financial statements would be material to holders of the LLC Preferred
Securities, because SCI Finance is a newly-organized special purpose entity, has
no operating history and no independent operations and is not engaged in any
activity other than the issuance of its preferred interests (the "LLC Preferred
Shares"), such as the LLC Preferred Securities, and its common interests (the
"LLC Common Shares"), and the lending of 99% of the proceeds thereof to SCI
International Limited, a wholly-owned subsidiary of SCI ("SCI Limited"), and
because SCI will guarantee SCI Finance's obligations under the terms of the LLC
Preferred Securities to the extent set forth herein. See "SCI Finance." SCI
Finance is a limited liability company organized under the laws of the State of
Texas and will be managed by SCI, as manager (sometimes referred to herein as
the "Manager"). SCI owns all of the LLC Common Shares, which are
nontransferable.
3
<PAGE> 43
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by SCI with the Commission are
incorporated herein by reference:
1. SCI's Annual Report on Form 10-K for the fiscal year ended December 31, 1993,
as amended on Form 10-K/A, dated April 5, 1994;
2. SCI's Quarterly Reports on Form 10-Q for the quarterly periods ended March
31, 1994 and June 30, 1994;
3. The Company's Current Report on Form 8-K dated October 18, 1994;
4. Description of the Company's capital stock set forth under the caption
"Item 1. Description of Securities to be Registered -- Capital Stock" in the
Form 8, Amendment No. 3, dated September 15, 1982, to the Company's Registration
Statement on Form 8-A; and
5. Description of the Company's preferred share purchase rights contained in the
Company's Registration Statement on Form 8-A dated July 26, 1988, as amended by
Amendment No. 1 thereto filed under cover of Form 8 and dated May 11, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus and to be part hereof from the date
of filing such documents. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed to constitute a part hereof except as so modified or
superseded.
The Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the request of any such person, a copy of any or
all of the documents which are incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests should be directed to Service
Corporation International, 1929 Allen Parkway, Houston, Texas 77019, Attention:
James M. Shelger, Senior Vice President, General Counsel and Secretary (Tel.
(713) 522-5141).
4
<PAGE> 44
THE COMPANY
The Company is the largest provider of funeral and cemetery services and
products in the world. Giving effect to the recent acquisitions of Great
Southern Group plc ("GSG") and Plantsbrook Group plc ("PG"), as of September 30,
1994, the Company owned and operated 1,431 funeral homes, 213 cemeteries
(including 92 funeral home and cemetery combinations) and 99 crematoria located
in 40 U.S. states, the District of Columbia, Australia, Canada and the United
Kingdom.
The Company was incorporated in Texas on July 5, 1962. The Company's principal
executive offices are located at 1929 Allen Parkway, Houston, Texas 77019,
telephone number (713) 522-5141. As used herein, unless the context indicates
otherwise, the terms "Company" and "SCI" refer to the Company and its
subsidiaries.
SCI FINANCE
SCI Finance is a limited liability company organized under the laws of the State
of Texas. The address of SCI Finance's principal executive offices is 1929 Allen
Parkway, Houston, Texas 77019. SCI owns all of the LLC Common Shares, which are
nontransferable. SCI Finance exists for the sole purpose of issuing LLC Common
Shares and LLC Preferred Shares and lending 99% of the proceeds thereof to SCI
Limited. The remaining 1% of the proceeds from the issuance of LLC Common Shares
and LLC Preferred Shares will be invested by SCI Finance in Eligible Investments
(as defined in SCI Finance's Articles of Organization (the "LLC Articles")). See
"Use of Proceeds."
5
<PAGE> 45
CERTAIN INVESTMENT CONSIDERATIONS
In evaluating an investment in the Securities, prospective purchasers should
carefully consider the following factor, together with (i) other information
included in the accompanying Prospectus Supplement (which may include additional
factors and may contain information modifying or superseding the factor set
forth below), (ii) information included elsewhere in this Prospectus, and (iii)
information incorporated herein by reference (which may modify or supersede the
factor set forth below).
SECURITIES AND EXCHANGE COMMISSION INVESTIGATION
The staff of the Division of Enforcement of the Commission has advised SCI that
it is considering recommending to the Commission that it institute an
administrative proceeding pursuant to Section 21C of the Exchange Act seeking
cease and desist orders against SCI, R. L. Waltrip, Chairman of the Board and
Chief Executive Officer, L. William Heiligbrodt, President and Chief Operating
Officer, and Samuel W. Rizzo, Executive Vice President and Chief Financial
Officer/Treasurer, for violations of certain reporting and disclosure
requirements of the Exchange Act and the regulations promulgated thereunder. The
recommendation under consideration by the staff arises out of the informal
private investigation previously disclosed by SCI relating to, among other
things, the change in SCI's accountants and SCI's Form 8-K dated March 31, 1993,
as amended in April 1993, reporting such change. See Items 3 and 9 of SCI's
Annual Report on Form 10-K for the fiscal year ended December 31, 1993. The
staff has offered SCI and the named individuals the opportunity to make a
presentation with respect to the recommendation under consideration.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement accompanying
this Prospectus, the net proceeds to the Company from the sale or sales of the
Securities other than LLC Preferred Securities will be used for general
corporate purposes. Except as set forth in the Prospectus Supplement
accompanying this Prospectus, 99% of the proceeds from any offering of the LLC
Preferred Securities will be lent by SCI Finance to SCI Limited (the "Loans"),
which will use such proceeds in connection with SCI's foreign acquisition
program, and the remaining 1% will be invested by SCI Finance in Eligible
Investments.
6
<PAGE> 46
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior, senior subordinated or
subordinated debt of the Company and will be issued, in the case of Debt
Securities that will be senior debt ("Senior Debt Securities"), under a Senior
Indenture (the "Senior Debt Indenture") dated as of February 1, 1993, between
the Company and The Bank of New York, as trustee; in the case of Debt Securities
that will be senior subordinated debt ("Senior Subordinated Debt Securities"),
under a Senior Subordinated Indenture (the "Senior Subordinated Debt Indenture")
to be entered into between the Company and Texas Commerce Bank National
Association ("Texas Commerce Bank"), as trustee; and, in the case of Debt
Securities that will be subordinated debt ("Subordinated Debt Securities" and,
together with the Senior Subordinated Debt Securities, the "Subordinated
Securities") under a Subordinated Indenture (the "Subordinated Debt Indenture"
and, together with the Senior Subordinated Debt Indenture, the "Subordinated
Indentures") dated as of September 1, 1991 between the Company and Texas
Commerce Bank, as trustee. The Senior Debt Indenture, the Senior Subordinated
Debt Indenture and the Subordinated Debt Indenture are sometimes hereinafter
referred to individually as an "Indenture" and collectively as the "Indentures."
Each of The Bank of New York and Texas Commerce Bank (and any successors thereto
as trustees under the respective Indentures) is hereinafter referred to as the
"Trustee" with respect to the Indenture under which it acts as Trustee. The
Indentures are filed as exhibits to the Registration Statement. The following
summaries of certain provisions of the Indentures and the Debt Securities do not
purport to be complete, and such summaries are subject to the detailed
provisions of the applicable Indenture to which reference is hereby made for a
full description of such provisions, including the definition of certain
capitalized terms used herein but not otherwise defined herein. Whenever defined
terms of the applicable Indenture are referred to, such defined terms are
incorporated herein by reference as part of the statement made, and the
statement is qualified in its entirety by such reference. The Indentures are
substantially identical, except for certain covenants of the Company, events of
default and provisions relating to subordination and conversion.
The Debt Securities may be issued from time to time in one or more series. The
following description of the Debt Securities sets forth certain general terms
and provisions of the Debt Securities of all series. The particular terms of
each series of Debt Securities offered by any Prospectus Supplement will be
described therein.
PROVISIONS APPLICABLE TO SENIOR, SENIOR SUBORDINATED AND SUBORDINATED DEBT
SECURITIES
General. The Debt Securities will be unsecured senior, senior subordinated or
subordinated obligations of the Company and may be issued from time to time in
one or more series. The Indentures will not limit the amount of Debt Securities,
Senior Indebtedness, debentures, notes or other types of indebtedness that may
be issued by the Company or any of its Subsidiaries nor will they restrict
transactions between the Company and its Affiliates, the payment of dividends or
the making of investments by the Company or the transfer of assets by the
Company to its Subsidiaries. The Company currently conducts substantially all
its operations through Subsidiaries. Consequently, the rights of the Company to
receive assets of any Subsidiary (and thus the ability of holders of Debt
Securities to benefit indirectly from such assets) are subject to the prior
claims of creditors of that Subsidiary. Other than as may be set forth in any
Prospectus Supplement, the Indentures and the Debt Securities will not contain
any covenants or other provisions that are intended to afford holders of the
Debt Securities special protection in the event of a highly leveraged
transaction by the Company. As of June 30, 1994, the Company had outstanding
approximately $988 million of secured debt or Senior Indebtedness (including
approximately $34 million principal amount of guarantees) and approximately $198
million of unsecured subordinated debt.
Reference is made to the Prospectus Supplement relating to any Debt Securities
for the following terms of and information relating to such Debt Securities (to
the extent such terms are applicable thereto): (i) the title of such Debt
Securities; (ii) classification as Senior Debt Securities, Senior Subordinated
Debt Securities or Subordinated Debt Securities, aggregate principal amount,
purchase price and denomination; (iii) whether such Debt Securities that
constitute Senior Subordinated Debt Securities or Subordinated Debt Securities
are convertible into Common Stock and, if so, the terms and conditions upon
which such conversion will be effected including the initial conversion price or
conversion rate and any adjustments thereto in addition to or different from
those described herein, the conversion period and other conversion provisions in
addition to or in lieu of
7
<PAGE> 47
those described herein; (iv) the date or dates on which such Debt Securities
will mature; (v) the method by which amounts payable in respect of principal of
or premium, if any, or interest, if any, on or upon the redemption of such Debt
Securities may be calculated; (vi) the interest rate or rates (or the method by
which such will be determined), and the dates from which such interest, if any,
will accrue; (vii) the date or dates on which any such interest will be payable;
(viii) the place or places where and the manner in which the principal of and
premium, if any, and interest, if any, on such Debt Securities will be payable
and the place or places where such Debt Securities may be presented for transfer
and, if applicable, conversion; (ix) the obligations, if any, of the Company to
redeem, repay or purchase such Debt Securities pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof or the right, if any,
of the Company to redeem, repay or purchase such Debt Securities at its option
and the period or periods within which, the price or prices at which and the
terms and conditions upon which such Debt Securities will be redeemed, repaid or
purchased pursuant to any such obligation or right (including the form or method
of payment thereof if other than cash); (x) any terms applicable to such Debt
Securities issued at an original issue discount below their stated principal
amount, including the issue price thereof and the rate or rates at which such
original issue discount shall accrue; (xi) any index used to determine the
amount of payments of principal of and any premium and interest on such Debt
Securities; (xii) any special United States federal income tax consequences; and
(xiii) any other specified terms of such Debt Securities, including any
additional or different events of default or remedies or any additional
covenants provided with respect to such Debt Securities, and any terms which may
be required by or advisable under applicable laws or regulations.
Unless otherwise specified in any Prospectus Supplement, the Debt Securities
will be issued only in fully registered form and in denominations of $1,000 and
any integral multiple thereof. No service charge will be made for any transfer
or exchange of any Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par that are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable Prospectus Supplement.
The Indentures and the Debt Securities will be governed by Texas law.
Global Securities. The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities ("Global Securities") that
will be deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series. Global
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to the
nominee of the Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global Security
or its nominee will credit, on its book-entry registration and transfer system,
the respective principal amounts of the individual Debt Securities represented
by such Global Security to the accounts of persons that have accounts with such
Depositary. Such accounts shall be designated by the dealers, underwriters or
agents with respect to such Debt Securities or by the Company if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in a Global Security will be limited to persons that have accounts
with the applicable Depositary ("participants") or persons that may hold
interests through participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the applicable Depositary or its nominee
(with respect to interests of participants) and the
8
<PAGE> 48
records of participants (with respect to interests of persons other than
participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary for a Global Security or its nominee is the registered
owner of such Global Security, such Depositary or its nominee, as the case may
be, will be considered the sole owner or holder of the Debt Securities of the
series represented by such Global Security for all purposes under the Indenture
governing such Debt Securities. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have any of the
individual Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture governing such Debt
Securities.
Payments of principal of and premium, if any, and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominees will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. Neither the Company, the Trustee for such
Debt Securities, any paying agent nor the registrar for such Debt Securities
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt Securities or its
nominee, upon receipt of any payment of principal, premium or interest in
respect of a Global Security representing any such Debt Securities, immediately
will credit participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the principal amount of such Global
Security for such Debt Securities as shown on the records of such Depositary or
its nominee. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name." Such payments will be the responsibility of such participants.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series in exchange for the Global Security representing such
series of Debt Securities. In addition, the Company may at any time and in its
sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any Debt
Securities of a series represented by one or more Global Securities and, in such
event, will issue individual Debt Securities of such series in exchange for the
Global Security or Securities representing such series of Debt Securities.
Further, if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company and the
Depositary for such Global Security, receive individual Debt Securities of such
series in exchange for such beneficial interests, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities. In any
such instance, an owner of a beneficial interest in a Global Security will be
entitled to a physical delivery of individual Debt Securities of the series
represented by such Global Security equal in principal amount to such beneficial
interest and to have such Debt Securities registered in its name. Individual
Debt Securities of such series so issued will be issued in denominations, unless
otherwise specified by the Company, of $1,000 and integral multiples thereof.
Consolidation, Merger, Sale. Each Indenture provides that the Company may
consolidate or merge with or into any other corporation, and may sell, lease,
exchange or otherwise dispose of all or substantially all of its property and
assets to any other corporation authorized to acquire and operate the same,
provided that in any such case (i) immediately after such transaction the
Company or such other corporation formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, will not be in default in the performance or observance of any
of the terms, covenants and conditions in the Indenture to be kept or performed
by the Company, (ii) the corporation (if other than the Company) formed by or
surviving any such consolidation or merger, or to which such sale, lease
exchange or other disposition shall have been made, shall be a corporation
organized under the laws of the United States of America, any state
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thereof or the District of Columbia, and (iii) the corporation (if other than
the Company) formed by such consolidation, or into which the Company shall have
been merged, or the corporation which shall have acquired or leased such
property and assets, shall assume, by a supplemental indenture, the Company's
obligations under such Indenture. In case of any such consolidation, merger,
sale, lease, exchange or other disposition and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named in
such Indenture as the Company and subject to the conditions set forth in the
Indenture, and the Company shall be relieved of any further obligation under
such Indenture and any Debt Securities issued thereunder.
Discharge and Defeasance. The Company may discharge or defease its obligations
with respect to each series of Debt Securities as set forth below.
The Company may discharge all of its obligations (except those set forth below)
to holders of any series of Debt Securities issued under any Indenture, which
Debt Securities have not already been delivered to the Trustee for cancellation
and which either have become due and payable or are by their terms due and
payable within one year (or are to be called for redemption within one year) by
depositing with the Trustee cash or U.S. Government Obligations, or a
combination thereof, as trust funds in an amount certified to be sufficient to
pay when due the principal of and premium, if any, and interest, if any, on all
outstanding Debt Securities of such series and to make any mandatory sinking
fund payments thereon when due.
Unless otherwise provided in the applicable Prospectus Supplement, the Company
may also discharge at any time all of its obligations (except those set forth
below) to holders of any series of Debt Securities issued under any Indenture
(other than convertible Debt Securities) ("defeasance") if, among other things:
(i) the Company irrevocably deposits with the Trustee cash or U.S. Government
Obligations, or a combination thereof, as trust funds in an amount certified to
be sufficient to pay the principal of and premium, if any, and interest, if any,
on all outstanding Debt Securities of such series when due and to make any
mandatory sinking fund payments thereon when due, and such funds have been so
deposited for 91 days; (ii) such deposit will not result in a breach or
violation of, or cause a default under, any agreement or instrument to which the
Company is a party or by which it is bound; and (iii) the Company delivers to
the Trustee an opinion of counsel to the effect that the holders of such series
of Debt Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance, and that such
defeasance will not otherwise alter the United States federal income tax
treatment of principal and interest payments on such series of Debt Securities.
Such opinion of counsel must be based on a ruling of the Internal Revenue
Service or a change in United States federal income tax law occurring after the
date of the Indenture relating to the Debt Securities of such series, since such
a result would not occur under current tax law.
In the event of such discharge and defeasance of a series of Debt Securities,
the holders thereof would be entitled to look only to such trust funds for
payment of the principal of and any premium and interest on such Debt
Securities.
Notwithstanding the foregoing, no discharge or defeasance described above shall
affect the following obligations to or rights of the holders of any series of
Debt Securities: (i) rights of registration of transfer and exchange of Debt
Securities of such series; (ii) rights of substitution of mutilated, defaced,
destroyed, lost or stolen Debt Securities of such series; (iii) rights of
holders of Debt Securities of such series to receive payments of principal
thereof and interest, if any, thereon when due and to receive mandatory sinking
fund payments, if any, thereon when due from the trust funds held by the
Trustee; (iv) the rights, obligations, duties and immunities of the Trustee; (v)
the rights of holders of Debt Securities of such series as beneficiaries with
respect to property deposited with the Trustee payable to all or any of them;
(vi) the obligations of the Company to maintain an office or agency in respect
of Debt Securities of such series; and (vii) if applicable, the obligations of
the Company with respect to the conversion of Debt Securities of such series
into Common Stock.
Modification of the Indenture. Each Indenture provides that the Company and the
Trustee may enter into supplemental indentures without the consent of the
holders of the Debt Securities to (i) evidence the assumption by a successor
corporation of the obligations of the Company under such Indenture, (ii) add
covenants or new events of default for the protection of the holders of such
Debt Securities, (iii) cure any ambiguity or correct any inconsistency in the
Indenture, (iv) establish the form and terms of any series of Debt Securities
and to
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provide for adjustment of conversion rights, (v) evidence the acceptance of
appointment by a successor trustee, (vi) amend the Indenture in any other manner
which the Company may deem necessary or desirable and which will not adversely
affect the interests of the holders of Debt Securities issued thereunder or
(vii) in the case of Senior Debt Securities, secure such Debt Securities.
Each Indenture also contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities then Outstanding of each series affected
by such supplemental Indenture, to add any provisions to, or change in any
manner or eliminate any of the provisions of, such Indenture or modify in any
manner the rights of the holders of the Debt Securities of such series; provided
that the Company and the Trustee may not, without the consent of the holder of
each outstanding Debt Security affected thereby, (i) extend the stated maturity
of the principal of any Debt Security, reduce the principal amount thereof,
reduce the rate or extend the time of payment of any interest thereon, reduce or
alter the method of computation of any amount payable on redemption, repayment
or purchase thereof, reduce the portion of the principal amount of any Original
Issue Discount Security payable upon acceleration or provable in bankruptcy,
change the coin or currency in which principal and interest, if any, are
payable, impair or affect the right to institute suit for the enforcement of any
payment, repayment or purchase thereof or, if applicable, adversely affect the
right to convert Debt Securities, any right of repayment at the option of the
holder or (solely with respect to the Senior Subordinated Debt Indenture)
change, amend or modify the subordination provisions of such Indenture or any of
the definitions used in the subordination provisions of such Indenture or
consent to the departure from any of the terms of the subordination provisions
of such Indenture in each case in any manner that would adversely affect the
holders of any of the Senior Subordinated Debt Securities issued thereunder or
(ii) reduce the percentage in aggregate principal amount of Debt Securities of
any series issued under such Indenture, the consent of the holders of which is
required for any such modification.
The Senior Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Senior Subordinated Debt Securities, and the
Subordinated Debt Indenture may not be amended to alter the subordination of any
outstanding Subordinated Debt Securities, in each case without the consent of
each holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
Each of the Indentures provides that the term "Original Issue Discount Security"
means any Debt Security that provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to the terms of the Indenture.
In each of the Indentures, the definition of the term "Outstanding," with
reference to Debt Securities, provides that in determining whether the holders
of the requisite aggregate principal amount of Outstanding Debt Securities of
any or all series have given any request, demand, authorization, direction,
notice, consent or waiver under the applicable Indenture, the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
for such purposes shall be the portion of the principal amount thereof that
would be due and payable as of the date of such determination (as certified by
the Company to the Trustee) upon a declaration of acceleration of the maturity
thereof pursuant to the terms of the Indenture.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
General. Senior Debt Securities will be issued under the Senior Debt Indenture,
and each series will rank pari passu as to the right of payment of principal,
premium, if any, and interest, if any, with each other series and with all other
Senior Indebtedness of the Company.
Events of Default. Unless otherwise specified in the Prospectus Supplement, an
Event of Default is defined under the Senior Debt Indenture with respect to the
Senior Debt Securities of any series issued thereunder as being any one or more
of the following events:
(i) default in the payment of any installment of interest upon any of the Senior
Debt Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(ii) default in the payment of the principal of any of the Senior Debt
Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
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(iii) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Senior Debt Securities of such series, as
and when such obligation shall become due and payable; or
(iv) failure on the part of the Company duly to observe or perform any other of
the covenants or agreements on the part of the Company in the Senior Debt
Securities of such series or in the Senior Debt Indenture continued for a period
of 60 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Company by the Trustee by
registered or certified mail, or to the Company and the Trustee by the holders
of at least 25 percent in aggregate principal amount of the Senior Debt
Securities of such series then Outstanding; or
(v) without the consent of the Company a court having jurisdiction shall enter
an order for relief with respect to the Company under the Bankruptcy Code or
without the consent of the Company a court having jurisdiction shall enter a
judgment, order or decree adjudging the Company a bankrupt or insolvent, or
enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Bankruptcy Code or
applicable state insolvency law and the continuance of any such judgment, order
or decree is unstayed and in effect for a period of 60 consecutive days; or
(vi) the Company shall institute proceedings for entry of an order for relief
with respect to the Company under the Bankruptcy Code or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to,
reorganization, arrangement, composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to the filing of such petition or to
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of substantially all of its
property, or the Company shall make a general assignment for the benefit of
creditors as recognized under the Bankruptcy Code; or
(vii) default under any bond, debenture, note or other evidence of Indebtedness
for money borrowed by the Company or any Subsidiary or under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
Subsidiary (other than Non-Recourse Indebtedness), whether such Indebtedness
exists on the date of the Senior Debt Indenture or shall thereafter be created,
which default shall have resulted in such Indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, or any default in payment of such Indebtedness (after
the expiration of any applicable grace periods and the presentation of any debt
instruments, if required), if the aggregate amount of all such Indebtedness
which has been so accelerated and with respect to which there has been such a
default in payment shall exceed $5,000,000, without each such default and
acceleration having been rescinded or annulled within a period of 30 days after
there shall have been given to the Company by the Trustee by registered mail, or
to the Company and the Trustee by the holders of at least 25 percent in
aggregate principal amount of the Senior Debt Securities of such series then
Outstanding, a written notice specifying each such default and requiring the
Company to cause each such default and acceleration to be rescinded or annulled
and stating that such notice is a "Notice of Default" under the Senior Debt
Indenture; or
(viii) any other Event of Default provided with respect to the Senior Debt
Securities of such series.
If an Event of Default with respect to Senior Debt Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Senior Debt Securities of such series shall
have already become due and payable, either the Trustee or the holders of not
less than 25 percent in aggregate principal amount of the Senior Debt Securities
of such series then Outstanding, by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the unpaid principal amount
(or, if the Senior Debt Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all the Senior Debt Securities of such series and the
interest, if any, accrued thereon to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything in the Senior Debt Indenture or in the Senior Debt Securities
of such series contained to the contrary notwithstanding. This provision,
however, is subject to the condition that, if at any time after the unpaid
principal amount (or such specified amount) of the Senior Debt Securities of
such series shall have been so declared due and payable and before any judgment
or
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decree for the payment of the moneys due shall have been obtained or entered,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest, if any, upon all of the Senior Debt
Securities of such series and the principal of any and all Senior Debt
Securities of such series which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest, if any, to the
extent that payment of such interest is enforceable under applicable law and on
such principal at the rate borne by the Senior Debt Securities of such series to
the date of such payment or deposit) and the reasonable compensation,
disbursements, expenses and advances of the Trustee, and any and all defaults
under the Senior Debt Indenture, other than the nonpayment of such portion of
the principal amount of and accrued interest, if any, on Senior Debt Securities
of such series which shall have become due by acceleration, shall have been
cured or shall have been waived in accordance with the Senior Debt Indenture or
provision deemed by the Trustee to be adequate shall have been made
therefor -- then and in every such case the holders of a majority in aggregate
principal amount of the Senior Debt Securities of such series then Outstanding,
by written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default with respect to the Company
specified in clause (v) or (vi) above occurs, the unpaid principal amount (or,
if the Senior Debt Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Senior Debt
Securities of each series then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act by the Trustee
or any Securityholder. If the Trustee shall have proceeded to enforce any right
under the Senior Debt Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company, the Trustee and the Securityholders shall be
restored respectively to their several positions and rights under the Senior
Debt Indenture, and all rights, remedies and powers of the Company, the Trustee
and the Securityholders shall continue as though no such proceeding had been
taken. Except with respect to an Event of Default pursuant to clause (i), (ii)
or (iii) above, the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to the Trustee by
the Company, a Paying Agent or any Securityholder.
The Senior Debt Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Senior
Debt Indenture at the request or direction of any of the holders of Senior Debt
Securities issued under the Senior Debt Indenture, unless such holders shall
have offered to the Trustee reasonable security or indemnity.
No holder of any Senior Debt Securities of any series then Outstanding shall
have any right by virtue of or by availing of any provision of the Senior Debt
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to the Senior Debt Indenture or the Senior Debt
Securities or for the appointment of a receiver or trustee or similar official,
or for any other remedy under the Senior Debt Indenture or under the Senior Debt
Securities, unless such holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, and unless the holders
of not less than 25 percent in aggregate principal amount of the Senior Debt
Securities of such series then Outstanding shall have made written request to
the Trustee to institute such action, suit or proceeding in its own name as
Trustee and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. Notwithstanding any other provisions in the
Senior Debt Indenture, however, the right of any holder of any Senior Debt
Security to receive payment of the principal of and interest, if any, on such
Senior Debt Security, on or after the respective due dates expressed in such
Senior Debt Security, or to institute suit for the enforcement of any such
payment on or after such respective dates shall not be impaired or affected
without the consent of such holder.
The holders of at least a majority in aggregate principal amount of the Senior
Debt Securities of any series then Outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Senior Debt Securities of such series; provided, however, that
(subject to certain exceptions) the Trustee shall have the
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right to decline to follow any such direction if the Trustee shall determine
upon advice of counsel that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith shall determine that the
action or proceeding so directed would involve the Trustee in personal
liability. The holders of 66 2/3% in aggregate principal amount of the Senior
Debt Securities of any series then Outstanding may on behalf of the holders of
all of the Senior Debt Securities of such series waive any past default or Event
of Default and its consequences except a default in the payment of interest, if
any, on, or the principal of, the Senior Debt Securities of such series. Upon
any such waiver the Company, the Trustee and the holders of the Senior Debt
Securities of such series shall be restored to their former positions and rights
under the Senior Debt Indenture, respectively; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default shall have been
waived as permitted, said default or Event of Default shall for all purposes of
the Senior Debt Securities and the Senior Debt Indenture be deemed to have been
cured and to be not continuing.
The Trustee shall, within 90 days after the occurrence of a default, with
respect to Senior Debt Securities of any series then Outstanding, mail to all
holders of Senior Debt Securities of such series, as the names and the addresses
of such holders appear upon the Senior Debt Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of these provisions being hereby defined to be the events specified
in clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) of "-- Provisions
Applicable Solely to Senior Debt Securities -- Events of Default" above, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (iv) or (vii) but in the
case of any default of the character specified in said clause (iv) or (vii) no
such notice to Securityholders shall be given until at least 60 days after the
giving of written notice thereof to the Company pursuant to said clause (iv) or
(vii), as the case may be); provided, however, that, except in the case of
default in the payment of the principal of or interest, if any, on any of the
Senior Debt Securities, or in the payment or satisfaction of any sinking fund or
other purchase obligation, the Trustee shall be protected in withholding such
notice if and so long as the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
The Company is required to furnish to the Trustee annually a statement as to the
fulfillment by the Company of all of its obligations under the Senior Debt
Indenture.
Limitation on Liens. The Company may not, nor may any Subsidiary, mortgage,
pledge, encumber or subject to any lien or security interest to secure any
obligation of the Company or any obligation of any Subsidiary (other than
obligations owing to the Company or a wholly-owned Subsidiary) any assets,
whether owned as of the date the Senior Debt Indenture was executed or
thereafter acquired, without effectively providing that the Senior Debt
Securities shall be secured equally and ratably with (or prior to) such
obligation, unless, after given effect thereto, the aggregate amount of all such
secured debt of the Company and its Subsidiaries (excluding secured Indebtedness
existing as of the date the Senior Debt Indenture was executed and any
extensions, renewals or refundings thereof that do not increase the principal
amount of Indebtedness so extended, renewed or refunded and excluding secured
Indebtedness incurred pursuant to clauses (a), (b), (c) and (d) set forth below)
would not exceed 10% of Consolidated Net Worth of the Company and its
Subsidiaries; provided, however, that this restriction will not prevent the
Company or any Subsidiary: (a) from acquiring and retaining property subject to
mortgages, pledges, encumbrances, liens or security interests existing thereon
at the date of acquisition thereof, or from creating within one year of such
acquisition mortgages, pledges, encumbrances or liens upon property acquired by
it after the date of the Senior Debt Indenture, as security for purchase money
obligations incurred by it in connection with the acquisition of such property,
whether payable to the person from whom such property is acquired or otherwise;
(b) from mortgaging, pledging, encumbering or subjecting to any lien or security
interest Current Assets to secure Current Liabilities; (c) from extending,
renewing or refunding any Indebtedness secured by a mortgage, pledge,
encumbrance, lien or security interest on the same property theretofore subject
thereto, provided that the principal amount of such Indebtedness so extended,
renewed or refunded shall not be increased; or (d) from securing the payment of
workmen's compensation or insurance premiums or from making good faith pledges
or deposits in connection with bids, tenders, contracts (other than contracts
for the payment of money) or leases, deposits to secure public or statutory
obligations, deposits to secure surety or
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<PAGE> 54
appeal bonds, pledges or deposits in connection with contracts made with or at
the request of the United States Government or any agency thereof, or pledges or
deposits for similar purposes in the ordinary course of business.
"Consolidated Net Worth" means, at any date, the sum of (i) the par value (or
value stated on the books of the Company) of the capital stock of all classes of
the Company (including preferred stock), plus (or minus in the case of a
deficit) (ii) the amount of the consolidated surplus, whether capital or earned,
of the Company and its Subsidiaries, determined in accordance with generally
accepted accounting principles.
"Current Assets" of any Person includes all assets of such Person which would be
classified as current assets in accordance with generally accepted accounting
principles.
"Current Liabilities" of any Person includes all liabilities of such Person
which would be classified as current liabilities in accordance with generally
accepted accounting principles.
Limitation on Sale and Leaseback Transactions. Neither the Company nor any
Subsidiary will enter into any transaction with any bank, insurance company or
other lender or investor, or to which any such lender or investor is a party,
providing for the leasing to the Company or a Subsidiary of any real property
(except a lease for a temporary period not to exceed three years by the end of
which it is intended that the use of such real property by the lessee will be
discontinued) which has been or is to be sold or transferred by the Company or
such Subsidiary to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such
real property unless either: (1) such transaction is the substantial equivalent
of a mortgage, pledge, encumbrance, lien or security interest which the Company
or any Subsidiary would have been permitted to create under the "Limitation on
Liens" covenant without equally and ratably securing the Senior Debt Securities,
or (2) the Company within 120 days after such transaction applied (and in any
such case the Company covenants that it will so apply) an amount equal to the
greater of (i) the net proceeds of the sale of the real property leased pursuant
to such transaction or (ii) the fair value of the real property so leased at the
time of entering into such transaction (as determined by the Board of
Directors), to the retirement of Funded Debt of the Company; provided that the
amount to be applied to the retirement of Funded Debt of the Company shall be
reduced by: (a) the principal amount of any Senior Debt Securities (for this
purpose if the Senior Debt Securities of that series are Original Issue Discount
Securities, the principal amount of the Outstanding Senior Debt Securities of
that series shall be computed and adjusted as may be specified in the terms of
that series) delivered within 120 days after such sale to the Trustee for
retirement and cancellation and (b) the principal amount of Funded Debt, other
than Senior Debt Securities, voluntarily retired by the Company within 120 days
after such sale; provided that no retirement referred to in this clause (2) may
be effected by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision.
"Funded Debt" means Indebtedness for money borrowed which by its terms matures
at or is extendible or renewable at the option of the obligor to a date more
than 12 months after the date of the creation of such Indebtedness.
PROVISION APPLICABLE SOLELY TO SENIOR SUBORDINATED DEBT SECURITIES
Prohibition on Incurrence of Senior Subordinated Debt. The Company will not
incur or suffer to exist Indebtedness that is or purports to be, pursuant to its
terms or the terms of any agreement relating thereto, senior in right of payment
to the Senior Subordinated Debt Securities and subordinate or junior in right of
payment to any other Indebtedness of the Company, provided that no Indebtedness
of the Company shall be deemed to be subordinate to any other Indebtedness of
the Company solely by virtue of any such other Indebtedness being secured or
otherwise having the benefit of any lien or security interest.
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PROVISIONS APPLICABLE SOLELY TO SENIOR SUBORDINATED AND SUBORDINATED DEBT
SECURITIES
Events of Default. Unless otherwise specified in the Prospectus Supplement, an
Event of Default is defined under each of the Subordinated Indentures with
respect to the Subordinated Securities of any series issued under such Indenture
as being as one or more of the following events:
(i) default in the payment of any installment of interest upon any of the
Subordinated Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(ii) default in the payment of the principal of any of the Subordinated
Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(iii) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Subordinated Securities of such series, as
and when such obligation shall become due and payable; or
(iv) failure on the part of the Company duly to observe or perform any other of
the covenants or agreements on the part of the Company in the Subordinated
Securities of such series or in the Subordinated Indenture applicable to such
series continued for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given to the
Company by the Trustee by registered mail, or to the Company and the Trustee by
the holders of at least 25 percent in aggregate principal amount of the
Subordinated Securities of such series issued under the applicable Subordinated
Indenture then Outstanding; or
(v) without the consent of the Company a court having jurisdiction shall enter
an order for relief with respect to the Company under the Bankruptcy Code or
without the consent of the Company a court having jurisdiction shall enter a
judgment, order or decree adjudging the Company a bankrupt or insolvent, or
enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Bankruptcy Code or
applicable state insolvency law and the continuance or any such judgment, order
or decree is unstayed and in effect for a period of 60 consecutive days; or
(vi) the Company shall institute proceedings for entry of an order for relief
with respect to the Company under the Bankruptcy Code or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to filing of such petition or to the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of substantially all of its
property, or the Company shall make a general assignment for the benefit of
creditors as recognized under the Bankruptcy Code; or
(vii) default under any bond, debenture, note or other evidence of Indebtedness
for money borrowed by the Company or under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company, whether such Indebtedness
exists on the date of such Subordinated Indenture or shall thereafter be
created, which default shall have resulted in such Indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, or any default in payment of such Indebtedness
(after the expiration of any applicable grace periods and the presentation of
any debt instrument, if required), if the aggregate amount of all such
Indebtedness which has been so accelerated and with respect to which there has
been such a default in payment shall exceed $5,000,000, without each such
default and acceleration having been rescinded or annulled within a period of 30
days after there shall have been given to the Company by the Trustee by
registered mail, or to the Company and the Trustee by the holders of at least 25
percent in aggregate principal amount of the Subordinated Securities of such
series then Outstanding, a written notice specifying each such default and
requiring the Company to cause each such default and acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
under the applicable Subordinated Indenture; or
(viii) any other Event of Default provided with respect to the Subordinated
Securities of such series under the applicable Subordinated Indenture.
If an Event of Default with respect to Subordinated Securities of any series
then Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Subordinated Securities of
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such series shall have already become due and payable, either the Trustee or the
holders of not less than 25 percent in aggregate principal amount of the
Subordinated Securities of such series then Outstanding, by notice in writing to
the Company (and to the Trustee if given by Securityholders), may declare the
unpaid principal amount (or, if the Subordinated Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all the Subordinated Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in the applicable Subordinated Indenture
or in the Subordinated Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that, if
at any time after the unpaid principal amount (or such specified amount) of the
Subordinated Securities of such series shall have been so declared due and
payable and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest, if
any, upon all of the Subordinated Securities of such series and the principal of
any and all Subordinated Securities of such series which shall have become due
otherwise than by acceleration (with interest on overdue installments of
interest, if any, to the extent that payment of such interest is enforceable
under applicable law and on such principal at the rate borne by the Subordinated
Securities of such series to the date of such payment or deposit) and the
reasonable compensation, disbursements, expenses and advances of the Trustee,
its agents, attorneys and counsel, and any and all defaults under the applicable
Subordinated Indenture, other than the nonpayment of such portion of the
principal amount of and accrued interest, if any, on Subordinated Securities of
such series which shall have become due by acceleration, shall have been cured
or shall have been waived in accordance with the applicable Subordinated
Indenture or provision deemed by the Trustee to be adequate shall have been made
therefor -- then and in every such case the holders of a majority in aggregate
principal amount of the Subordinated Securities of such series then Outstanding,
by written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default with respect to the Company
specified in clause (v) or (vi) above occurs, the unpaid principal amount (or,
if the Subordinated Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Subordinated
Securities of each series then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act by the Trustee
or any Securityholder. If the Trustee shall have proceeded to enforce any right
under the applicable Subordinated Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company, the Trustee and the Securityholders shall be
restored respectively to their several positions and rights under the applicable
Subordinated Indenture, and all rights, remedies and powers of the Company, the
Trustee and the Securityholders shall continue as though no such proceeding had
been taken. Except with respect to an Event of Default pursuant to clause (i),
(ii) or (iii) above, the Trustee shall not be charged with knowledge of any
Event of Default unless written notice thereof shall have been given to the
Trustee by the Company, a Paying Agent or any Securityholder.
Each of the Subordinated Indentures provides that, subject to the duty of the
Trustee during default to act with the required standard of care, the Trustee
will be under no obligation to exercise any of its rights or powers under such
Subordinated Indenture at the request or direction of any of the holders or
Subordinated Securities issued under the such Subordinated Indenture, unless
such holders shall have offered to the Trustee reasonable security or indemnity.
No holder of any Subordinated Securities of any series then Outstanding shall
have any right by virtue of or by availing of any provision of the applicable
Subordinated Indenture to institute any suit, action or proceeding in equity or
at law upon or under or with respect to such Subordinated Indenture or the
Subordinated Securities issued under such Subordinated Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy under such Subordinated Indenture or thereunder, unless such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as provided in such Subordinated Indenture, and unless the
holders of not less than 25 percent in aggregate principal amount of the
Subordinated Securities of such series then Outstanding shall have made written
request to the Trustee to institute such
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action, suit or proceeding in its own name as Trustee under such Subordinated
Indenture and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. Notwithstanding any other provisions in the
applicable Subordinated Indenture, but subject to the subordination provisions
of the applicable Subordinated Indenture, the right of any holder of any
Subordinated Security to receive payment of the principal of and interest, if
any, on such Subordinated Security, on or after the respective due dates
expressed in such Subordinated Security, or, if applicable, to convert such
Subordinated Security as provided in the applicable Subordinated Indenture, or
to institute suit for the enforcement of any such payment on or after such
respective dates or for the enforcement of any such right to convert shall not
be impaired or affected without the consent of such holder.
The holders of a majority in aggregate principal amount of the Subordinated
Securities of any series then Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Subordinated Securities of such series; provided, however, that
(subject to certain exceptions) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine upon advice of counsel
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith shall determine that the action or proceeding so directed
would involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Subordinated Securities of any series then
Outstanding may on behalf of the holders of all of the Subordinated Securities
of such series waive any past default or Event of Default under the applicable
Subordinated Indenture and its consequences except a default in the payment of
interest, if any, on, or the principal of, the Subordinated Securities of such
series. Upon any such waiver the Company, the Trustee and the holders of the
Subordinated Securities of such series shall be restored to their former
positions and rights under the applicable Subordinated Indenture, respectively;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event of
Default shall have been waived as permitted, said default or Event of Default
shall for all purposes of the applicable Subordinated Securities and the
applicable Subordinated Indenture be deemed to have been cured and to be not
continuing.
The Trustee shall, within 90 days after the occurrence of a default, with
respect to Subordinated Securities of any series then Outstanding, mail to all
holders of Subordinated Securities of such series, as the names and the
addresses of such holders appear upon the applicable Subordinated Security
register, notice of all defaults known to the Trustee with respect to such
series, unless such defaults shall have been cured before the giving of such
notice (the term "defaults" for the purpose of these provisions being hereby
defined to be the events specified in clauses (i), (ii), (iii), (iv), (v), (vi),
(vii) and (viii) of " -- Provisions Applicable Solely to Senior Subordinated and
Subordinated Debt Securities -- Events of Default" above, not including periods
of grace, if any, provided for therein and irrespective of the giving of the
written notice specified in said clause (iv) or (vii) but in the case of any
default of the character specified in said clause (iv) or (vii) no such notice
to Securityholders shall be given until at least 60 days after the giving of
written notice thereof to the Company pursuant to said clause (iv) or (vii), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Subordinated
Securities, or in the payment or satisfaction of any sinking fund or other
purchase obligation, the Trustee shall be protected in withholding such notice
if and so long as the Trustee in good faith determines that the withholding of
such notice is in the best interests of the Securityholders.
The Company is required to furnish to the Trustee annually a statement as to the
fulfillment by the Company of all of its obligations under the applicable
Subordinated Indenture.
Subordination. The Subordinated Securities will be subordinate and junior in
right to payment, to the extent set forth in the applicable Subordinated
Indenture, to all Senior Indebtedness (as defined below for each of the
Subordinated Indentures) of the Company. If the Company should default in the
payment of any principal of or premium or interest on any Senior Indebtedness
when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise, then, upon
written notice of such default to the Company by the holders of such Senior
Indebtedness or any trustee therefor and subject to
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certain rights of the Company to dispute such default and subject to proper
notification of the Trustee, unless and until such default shall have been cured
or waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) will be made or agreed to be made
for principal of or premium, if any, or interest, if any, on the applicable
Subordinated Securities, or in respect of any redemption, retirement, purchase
or other acquisition of the applicable Subordinated Securities other than those
made in capital stock of the Company (or cash in lieu of fractional shares
thereof) pursuant to any conversion right of the Subordinated Securities or
otherwise made in capital stock of the Company.
"Senior Indebtedness" is defined in the Senior Subordinated Debt Indenture as
Indebtedness of the Company outstanding at any time except (a) any Indebtedness
of the Company that pursuant to its terms or the terms of any agreement relating
thereto or by operation of law is subordinate or junior in right of payment to
any other Indebtedness of the Company, provided that no Indebtedness of the
Company shall be deemed to be subordinate to any other Indebtedness of the
Company solely by virtue of any such other Indebtedness being secured or
otherwise having the benefit of any lien or security interest, (b) any
Indebtedness as to which, by the terms of the instrument creating or evidencing
the same, it is provided that such Indebtedness is not senior in right of
payment to the Senior Subordinated Debt Securities, (c) the Senior Subordinated
Debt Securities, (d) the Company's subordinated indebtedness existing on the
date of the Senior Subordinated Debt Indenture, (e) any Indebtedness of the
Company to a wholly-owned Subsidiary of the Company, (f) interest accruing after
the filing of a petition initiating certain bankruptcy or insolvency proceedings
unless such interest is an allowed claim enforceable against the Company in a
proceeding under federal or state bankruptcy laws and (g) trade accounts
payable.
"Senior Indebtedness" is defined in the Subordinated Debt Indenture as
Indebtedness of the Company outstanding at any time except (a) any Indebtedness
as to which, by the terms of the instrument creating or evidencing the same, it
is provided that such Indebtedness is not senior in right of payment to the
Subordinated Debt Securities, (b) the Subordinated Debt Securities, (c) the
Company's subordinated indebtedness existing on the date of the Subordinated
Debt Indenture, (d) any Indebtedness of the Company to a wholly owned Subsidiary
of the Company, (e) interest accruing after the filing of a petition initiating
certain bankruptcy or insolvency proceedings unless such interest is an allowed
claim enforceable against the Company in a proceeding under federal or state
bankruptcy laws and (f) trade accounts payable.
"Indebtedness" is defined in each Subordinated Indenture as, with respect to any
Person, (a)(i) the principal of and premium and interest, if any, on
indebtedness for money borrowed of such Person evidenced by bonds, notes,
debentures or similar obligations, including any guaranty by such person of any
indebtedness for money borrowed of any other Person, whether any such
indebtedness or guaranty is outstanding on the date of such Subordinated
Indenture or is thereafter created, assumed or incurred, (ii) the principal of
and premium and interest, if any, on indebtedness for money borrowed, incurred,
assumed or guaranteed by such Person in connection with the acquisition by it or
any of its subsidiaries of any other businesses, properties or other assets and
(iii) lease obligations which such Person capitalizes in accordance with
Statement of Financial Accounting Standards No. 13 promulgated by the Financial
Accounting Standards Board or such other generally accepted accounting
principles as may be from time to time in effect, (b) any other indebtedness of
such Person, including any indebtedness representing the deferred and unpaid
balance of the purchase price of any property or interest therein, including any
such balance that constitutes a trade account payable, and any guaranty,
endorsement or other contingent obligation of such Person in respect of any
indebtedness of another, which is outstanding on the date of such Subordinated
Indenture or is thereafter created, assumed or incurred by such Person and (c)
any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clause (a) or (b) above.
If (i) without the consent of the Company a court having jurisdiction shall
enter (A) an order for relief with respect to the Company under the United
States federal bankruptcy laws, (B) a judgment, order or decree adjudging the
Company as bankrupt or insolvent or (C) an order for relief for reorganization,
arrangement, adjustment or composition of or in respect of the Company under the
United States federal bankruptcy laws or state insolvency laws or (ii) the
Company shall institute proceedings for the entry of an order for relief with
respect to the Company under the United States federal bankruptcy laws or for an
adjudication of insolvency, or shall consent to the institution of bankruptcy or
insolvency proceedings against it, or shall file a petition
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seeking, or seek or consent to reorganization, arrangement, composition or
similar relief under the United States federal bankruptcy laws or any applicable
state law, or shall consent to the filing of such petition or to the appointment
of a receiver, custodian, liquidator, assignee, trustee, sequestrator or similar
official in respect of the Company or of substantially all of its property, or
the Company shall make a general assignment for the benefit of creditors, then
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) will first be paid in full before any
payment or distribution, whether in cash, securities or other property, is made
on account of the principal of or premium, if any, or interest, if any, on the
applicable Subordinated Securities. In such event, any payment or distribution
on account of the principal of or premium, if any, or interest, if any, on the
applicable Subordinated Securities, whether in cash, securities or other
property (other than securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the applicable Subordinated Securities, to the payment of all
Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for the subordination provisions) be payable or deliverable in
respect of the applicable Subordinated Securities will be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the priorities
then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) has
been paid in full. In the event of any such proceeding, after payment in full of
all sums owing with respect to Senior Indebtedness, the holders of Subordinated
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Subordinated Securities issued under the applicable
Subordinated Indenture, will be entitled to be repaid from the remaining assets
of the Company the amounts at the time due and owing on account of unpaid
principal of or any premium or any interest on the Subordinated Securities
issued under the applicable Subordinated Indenture and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or obligations of the
Company ranking junior to the Subordinated Securities issued under the
applicable Subordinated Indenture and such other obligations. If,
notwithstanding the foregoing, any payment or distribution on the Subordinated
Securities issued under the applicable Subordinated Indenture of any character,
whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Subordinated
Securities issued under the applicable Subordinated Indenture, to the payment of
all Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan or reorganization or readjustment), shall be
received by the Trustee or any holder of any Subordinated Securities issued
under the applicable Subordinated Indenture in contravention of any of the terms
of the applicable Subordinated Indenture, such payment or distribution will be
received in trust for the benefit of, and will be paid over or delivered and
transferred to, the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all such Senior Indebtedness in full. In the event of the
failure of the Trustee or any holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is irrevocably
authorized to endorse or assign the same.
Each of the Subordinated Indentures will provide that Senior Indebtedness shall
not be deemed to have been paid in full unless the holders thereof shall have
received cash, securities or other property equal to the amount of such Senior
Indebtedness then outstanding. Upon the payment in full of all Senior
Indebtedness, the holders of Subordinated Securities of each series shall be
subrogated to all rights of any holders of Senior Indebtedness to receive any
further payments or distributions applicable to such Senior Indebtedness until
the indebtedness evidenced by the Subordinated Securities of such series shall
have been paid in full, and such payments or distributions received by such
holders, by reason of such subrogation, of cash, securities or other property
which otherwise would be paid or distributed to the holders of Senior
Indebtedness with respect to such Series, shall, as between the Company and its
creditors other than the holders of such Senior Indebtedness, on the one hand,
and such holders, on the other hand, be deemed to be a payment by the Company on
account of such Senior Indebtedness, and not on account of the Subordinated
Securities of such series.
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By reason of such subordination, in the event of the insolvency of the Company,
holders of Senior Indebtedness and holders of other obligations of the Company
that are not subordinated to Senior Indebtedness may receive more, ratably, than
holders of the Subordinated Securities. Such subordination will not prevent the
occurrence of an Event of Default or limit the right of acceleration in respect
of the Subordinated Securities.
Conversion. Each of the Subordinated Indentures will provide that a series of
Subordinated Securities may be convertible into Common Stock (or cash in lieu
thereof). The following provisions will apply to Debt Securities that are
convertible Subordinated Securities unless otherwise provided in the Prospectus
Supplement for such Debt Securities.
The holder of any convertible Subordinated Securities will have the right
exercisable at any time prior to maturity, subject to prior redemption by the
Company, to convert such Subordinated Securities into shares of Common Stock at
the conversion price or conversion rate set forth in the Prospectus Supplement,
subject to adjustment. The holder of convertible Subordinated Securities may
convert any portion thereof which is $1,000 in principal amount or any integral
multiple thereof.
In certain events, the conversion price or conversion rate will be subject to
adjustment as set forth in the applicable Subordinated Indenture. Such events
include issuance of shares of Common Stock as a dividend or distribution on the
Common Stock; subdivisions, combinations and reclassifications of the Common
Stock; redemption of the preferred share purchase rights associated with the
Common Stock; the issuance to all holders of Common Stock of rights or warrants
entitling the holders thereof (for a period not exceeding 45 days) to subscribe
for or purchase shares of Common Stock at a price per share less than the then
current market price per share of Common Stock (as determined pursuant to the
applicable Subordinated Indenture); and the distribution to substantially all
holders of Common Stock of evidences of indebtedness, equity securities
(including equity interests in the Company's Subsidiaries) other than Common
Stock, or other assets (excluding cash dividends paid from surplus) or
subscription rights or warrants (other than those referred to above). No
adjustment of the conversion price or conversion rate will be required unless an
adjustment would require a cumulative increase or decrease of at least 1% in
such price or rate. The Company has been advised by its counsel that certain
adjustments in the conversion price or conversion rate in accordance with the
foregoing provisions may result in constructive distributions to either holders
of the Subordinated Securities issued under the applicable Subordinated
Indenture or holders of Common Stock which would be taxable pursuant to Treasury
Regulations issued under Section 305 of the Internal Revenue Code of 1986. The
amount of any such taxable constructive distribution will be the fair market
value of the Common Stock that is treated as having been constructively
received, such value being determined as of the time the adjustment resulting in
the constructive distribution is made.
Fractional shares of Common Stock will not be issued upon conversion, but, in
lieu thereof, the Company will pay a cash adjustment based on the then current
market price for the Common Stock. Upon conversion, no adjustments will be made
for accrued interest or dividends, and therefore convertible Subordinated
Securities surrendered for conversion between the record date for an interest
payment and the interest payment date (except convertible Subordinated
Securities called for redemption on a redemption date during such period) must
be accompanied by payment of an amount equal to the interest thereon which the
registered holder is to receive.
In the case of any consolidation or merger of the Company (with certain
exceptions) or any sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company, the holder of
convertible Subordinated Securities, after the consolidation, merger, sale,
lease, exchange or other disposition, will have the right to convert such
convertible Subordinated Securities into the kind and amount of securities, cash
and other property which the holder would have been entitled to receive upon or
in connection with such consolidation, merger, sale, lease, exchange or other
disposition, if the holder had held the Common Stock issuable upon conversion of
such convertible Subordinated Securities issued under the applicable
Subordinated Indenture immediately prior to such consolidation, merger, sale,
lease, exchange or other disposition.
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CONCERNING THE TRUSTEES
Each of the Trustees is a depositary for funds of, makes loans to and performs
other services for the Company in the normal course of business.
In addition to serving as Trustee under the Senior Subordinated Indenture and
the Subordinated Indenture, Texas Commerce Bank also serves as Trustee under (i)
the Debenture Indenture (the "Debenture Indenture") dated as of June 15, 1992,
between the Company and Texas Commerce Bank, as trustee, and (ii) the Guarantees
of Notes of Subsidiaries Indenture (the "Guarantees Indenture") dated as of May
1, 1970, between the Company and Texas Commerce Bank, as trustee. Debt of the
Company issued pursuant to the Debenture Indenture and the Guarantees Indenture
constitutes Senior Indebtedness. As of June 30, 1994, the Company had
outstanding approximately $26 million principal amount of Senior Indebtedness
issued pursuant to the Debenture Indenture and approximately $34 million
principal amount of guarantees issued pursuant to the Guarantees Indenture.
Pursuant to the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), a trustee under an indenture may be deemed to have a conflicting
interest, and may, under certain circumstances set forth in the Trust Indenture
Act, be required to resign as trustee under such indenture, if the securities
issued under such indenture are in default (as such term is defined in such
indenture) and the trustee is the trustee under another indenture under which
any other securities of the same obligor are outstanding, subject to certain
exceptions set forth in the Trust Indenture Act. In such event, the obligor must
take prompt steps to have a successor trustee appointed in the manner provided
in the indenture from which the trustee has resigned.
Pursuant to the Trust Indenture Act, Texas Commerce Bank, as trustee under the
Senior Subordinated Indenture, the Subordinated Indenture, the Debenture
Indenture and the Guarantees Indenture, could be required to resign as trustee
under one or more of such indentures should a default occur under one or more of
such indentures. In such event, the Company would be required to take prompt
steps to have a successor trustee or successor trustees appointed in the manner
provided in the applicable indenture or indentures.
DESCRIPTION OF PREFERRED STOCK
Under SCI's Restated Articles of Incorporation, as amended (the "Articles"), SCI
has the authority to issue 1,000,000 shares of preferred stock, $1.00 par value
per share (the "Preferred Stock"). The Preferred Stock may be divided into such
amounts and issued from time to time in one or more series as may be fixed and
determined by the Board of Directors. The relative rights and preferences among
each series of Preferred Stock shall be such as are provided in any resolutions
adopted by the Board of Directors providing for the issue of such series of
Preferred Stock (each such resolution, a "Directors' Resolution"). The Board of
Directors is authorized to fix and determine such variations and the relative
rights and preferences as between series as shall be stated in a Directors'
Resolution. The preemptive rights of shareholders of Preferred Stock to acquire
authorized but unissued shares, or to acquire treasury shares, is expressly
denied. There are no shares of any series of SCI Preferred Stock currently
outstanding. However, in connection with the adoption of the Company's
shareholders' rights plans the Company has designated and reserved for issuance
upon exercise of rights granted to its shareholders 600,000 shares of Series C
Junior Participating Preferred Stock.
The Preferred Stock may be issued or sold to such persons and for such
consideration as may be determined from time to time by the Board of Directors
and, whether or not convertible into Common Stock, need not first be offered to
the holders of Common Stock, and when issued such shares of Preferred Stock
shall be considered fully paid and non-assessable.
The following summaries of certain provisions of the Preferred Stock do not
purport to be complete and are subject, and are qualified in their entirety by
reference, with respect to any particular series of Preferred Stock, to the
description of the terms thereof included in the applicable Prospectus
Supplement and to the applicable
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provisions of the Articles and the Company's Bylaws (the "Bylaws"). The
accompanying Prospectus Supplement with respect to any series of Preferred Stock
will set forth the following terms:
(a) The designation of such series;
(b) The number of shares constituting such series;
(c) The rate of dividends;
(d) The price at and the terms and conditions on which shares of such series may
be redeemed;
(e) The amount payable upon shares of such series in the event of involuntary
liquidation;
(f) The amount payable upon shares of each series in the event of voluntary
liquidation;
(g) Sinking fund provisions for the redemption or purchase of such series;
(h) The terms and conditions on which shares of such series may be converted;
and
(i) Any special rights of the shares of such series (and the accompanying
Prospectus Supplement may state that any of the terms set forth herein is
inapplicable to such series).
DIVIDENDS
The Preferred Stock of each series will be entitled to receive dividends, when
and as declared by the Board of Directors, at the rate and on such other terms
and conditions as may be fixed for such series, in preference to dividends on
the Common Stock or on other shares of capital stock of the Company ranking
junior to the Preferred Stock as to dividends ("Junior Stock").
DIVIDEND PREFERENCE
Subject to such further conditions or restrictions as may be imposed in any
Directors' Resolution, so long as any shares of Preferred Stock are outstanding,
the Company will not declare or pay any dividend, in cash or stock or otherwise
(other than dividends payable in shares of Junior Stock), on any shares of
Junior Stock or make any distribution upon or purchase or redeem or otherwise
acquire for a valuable consideration any shares of Junior Stock (a) unless all
dividends for Preferred Stock for all past dividend periods will have been paid
or declared and a sum sufficient for the payment thereof set apart for payment
and be in the process of payment, and the full dividend thereon for the current
dividend period will have been paid or declared, and (b) unless, as to each
series of the Preferred Stock for which a sinking fund will have been provided,
the Company will have retired the number of shares of Preferred Stock of such
series required to have been retired for the sinking fund or otherwise will have
met the obligations of said sinking fund.
REDEMPTION
Subject to such further conditions or restrictions as may be imposed in any
Directors' Resolution, the shares of any series of Preferred Stock will be
subject to redemption in whole or in part at the applicable redemption price as
provided for such series on the terms and conditions and upon notice as set
forth in the applicable Prospectus Supplement.
Notice of any such redemption will be given to each holder of shares being
called, either personally or by mail, not less than 20 nor more than 50 days
before the date fixed for redemption. If mailed, such notice will be deemed to
be delivered when deposited in the United States mail addressed to the
shareholder at the address as it appears on the stock transfer book of the
Company, with postage thereon prepaid.
If less than all outstanding shares of the series are to be redeemed, the shares
to be redeemed will be selected for redemption ratably or by lot in such manner
as may be prescribed by resolution of the Board of Directors. The notice of
redemption will set forth the designation of the series of which the shares to
be redeemed constitute a part, the date fixed for redemption, the redemption
price, the place at which the shareholders may obtain payment of the redemption
price upon the surrender of their respective share certificates and will include
a
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statement with respect to the existence of any right of conversion with respect
to the shares to be redeemed and the period within which such right may be
exercised.
The Company may, on or prior to the date fixed for redemption of any shares of
Preferred Stock, deposit with any bank or trust company in Texas, or any bank or
trust company in the United States, duly appointed and acting as transfer agent
for the Company, as a trust fund, a sum sufficient to redeem shares called for
redemption with irrevocable instructions and authority to such bank or trust
company to give or complete the notice of redemption thereof and to pay, on or
after the date fixed for such redemption, to the respective holders of the
shares as evidenced by a list of holders, the redemption price upon the
surrender of their respective share certificates. Thereafter, from and after the
date fixed for redemption, such shares will be redeemed and dividends thereon
will cease to accrue after such date fixed for redemption. Such deposit will be
deemed to constitute full payment of such shares to their holders. Thereafter,
such shares will no longer be deemed to be outstanding, and the holders thereof
will cease to be shareholders with respect to such shares, and will have no
rights with respect thereto except the right to receive from the bank or trust
company payment of the redemption price of such shares without interest, upon
the surrender of their respective certificates therefor, and any right to
convert such shares which may exist. In case the holders of such shares will
not, within six years after such deposit, claim the amount deposited for
redemption thereof, such bank or trust company will upon demand pay over to the
Company the balance of such amounts so deposited to be held in trust in such
bank or trust company and such trust company thereupon will be relieved of all
responsibility to the holders thereof.
Any shares of Preferred Stock which are redeemed or purchased by the Company and
cancelled will be restored to the status of authorized but unissued shares and
may be reissued as shares of another series.
VOTING
The holders of the Preferred Stock together with the holders of the Common
Stock, all voting as one class, will possess voting power for the election of
directors and for all other purposes, subject to such limitations as may be
imposed by law and by any provision of the Articles. In the exercise of its
voting power, the Preferred Stock will be entitled to one vote for each share
held.
SPECIAL DIRECTORS
Whenever, at any time or times, dividends payable on any series of Preferred
Stock are in arrears in an aggregate amount equivalent as to such series to six
full dividends, there will be vested in the holders of shares of all outstanding
Preferred Stock, voting as one class and with one vote for each share, the right
to elect two directors of the Company. Such right of the holders of Preferred
Stock to vote for the election of two directors may be exercised at any annual
meeting or at any special meeting called for such purpose, or at any adjournment
thereof, until all arrearages and dividends on the outstanding shares of
Preferred Stock have been paid in full or declared and funds sufficient for the
payment thereof deposited in trust, and when so paid or provided for, then such
right will cease. So long as such right to vote continues, the Secretary of the
Company may call, and upon written request of the holders of record of ten per
cent or more of the outstanding Preferred Stock, addressed to the Secretary at
the principal office of the Company, will call a special meeting of the holders
of Preferred Stock for the election of such two directors. Such meeting will be
held within 50 days after delivery of such request to such Secretary, at the
place and upon the notice provided by law and in the Bylaws for the holding of
meeting of its shareholders. If at any such meeting or any adjournment thereof
the holders of at least a majority of the then outstanding shares of Preferred
Stock then entitled to vote in such election are present or represented by
proxy, then, by vote of the holders of at least a majority of all such shares of
Preferred Stock present or represented in such meeting, the then authorized
number of directors of the Company will be increased by two and the holders of
such shares of Preferred Stock will be entitled to elect such two additional
directors. Directors so elected will serve until the next annual meeting or
until their successors are elected and will qualify; provided, however, that
whenever all arrearages and dividends on all outstanding shares of Preferred
Stock have been paid or declared and funds sufficient for the payment thereof
deposited in trust, the term of the office of the persons so elected as
directors will forthwith terminate, and the number of the whole Board of
Directors of the Company will be reduced accordingly. In case of any vacancy
occurring among the directors so elected, the remaining director who has been so
elected may appoint a successor to hold office for the unexpired term of the
director whose place is
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vacant. If both directors so elected by the holders of the Preferred Stock cease
to serve as directors before their term expires, the holders of Preferred Stock
then outstanding may, at a special meeting of such holders called as provided in
the Articles, elect successors to hold office for the unexpired terms of the
directors whose places are vacant. In any vote for directors as provided in the
Articles, each share of Preferred Stock will be entitled to vote.
APPROVAL OF CHANGES
The Company will not, without the approval (by vote at a meeting or by consent
in writing) of the holders of at least two-thirds of the outstanding shares of
Preferred Stock and subject to the provisions in the Articles with respect to
certain additional supermajority voting requirements:
(i) Amend or repeal any provision of, or add any provision to the Articles or
Bylaws if such action would alter or change the preferences, rights, privileges
or powers of, or the restrictions provided for the benefit of, the Preferred
Stock; or
(ii) Authorize or create shares of any class of stock having any preference or
priority as to dividends, assets or other characteristics superior to the
Preferred Stock, or authorize or create shares of stock of any class or any
bonds, indentures, notes or other obligations convertible into or exchangeable
for or having option or rights to purchase, any shares of stock having any such
preference or priority; or
(iii) Reclassify any Junior Stock into Preferred Stock or into shares having any
preference or priority as to dividends, assets or any other characteristics
superior to the Preferred Stock; or
(iv) Increase the aggregate number of authorized shares of Preferred Stock or
create a new class of shares having rights and preferences equal to the shares
of Preferred Stock.
LIQUIDATION PREFERENCE
In the event of any liquidation, dissolution or winding up of the Company, the
Preferred Stock of each series shall be entitled to payment of such amount or
amounts in preference to any payment on Junior Stock as shall be provided in the
Directors' Resolution providing for the issuance of such shares of Preferred
Stock. In any such event, if the assets available for distribution shall be
insufficient to permit payment of the full preferential amount to all holders of
Preferred Stock, then distribution shall be made ratably among such holders
according to the amount due to each.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue warrants (which may be titled either "options" or
"warrants") for the purchase of Common Stock (the "Common Stock Warrants"). The
Common Stock Warrants may be issued independently or together with any
Securities offered by any Prospectus Supplement and may be attached to or
separate from such Securities. Each series of Common Stock Warrants will be
issued under a separate warrant agreement (a "Warrant Agreement") to be entered
into between the Company and a bank or trust company, as Warrant Agent, all as
set forth in the Prospectus Supplement relating to the particular issue of
offered Common Stock Warrants. The Warrant Agent will act solely as an agent of
the Company in connection with the Common Stock Warrant Certificates and will
not assume any obligation or relationship of agency or trust for or with any
holders of Common Stock Warrant Certificates or beneficial owners of Common
Stock Warrants. The form of Warrant Agreement, including the form of Common
Stock Warrant Certificate representing the Common Stock Warrants, is filed as an
exhibit to the Registration Statement to which this Prospectus pertains. The
following summaries of certain provisions of the form of Warrant Agreement and
Common Stock Warrant Certificate do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all the provisions of
the Warrant Agreement and the Common Stock Warrant Certificate.
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GENERAL
Reference is made to the accompanying Prospectus Supplement relating to the
Common Stock Warrants for the following terms of the Common Stock Warrants:
(i) the offering price;
(ii) the number of shares of Common Stock purchasable upon exercise of each such
Common Stock Warrant and the price at which such number of shares of Common
Stock may be purchased upon such exercise;
(iii) the date on which the right to exercise such Common Stock Warrants shall
commence and the date on which such right shall expire (the "Expiration Date");
and
(iv) any other terms of such Common Stock Warrants (and the accompanying
Prospectus Supplement may state that any of the terms set forth herein is
inapplicable to such series).
Common Stock Warrants for the purchase of Common Stock will be offered and
exercisable for U.S. dollars only and will be in registered form only.
Common Stock Warrant Certificates may be exchanged for new Common Stock Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration or transfer, and may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement. Prior to the exercise of any Common Stock
Warrants, holders of such Common Stock Warrants will not have any rights of
holders of the Common Stock purchasable upon such exercise, including the right
to receive payments of dividends, if any, on the Common Stock purchasable upon
such exercise or to exercise any applicable right to vote.
EXERCISE OF COMMON STOCK WARRANTS
Each Common Stock Warrant will entitle the holder thereof to purchase such
shares of Common Stock at such exercise price as shall in each case be set forth
in, or calculable from, the Prospectus Supplement relating to the offered Common
Stock Warrants. After the close of business on the Expiration Date (or such
later date to which such Expiration Date may be extended by the Company)
unexercised Common Stock Warrants will become void.
Common Stock Warrants may be exercised by delivering to the Warrant Agent
payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Common Stock purchasable upon such exercise together
with certain information set forth on the reverse side of the Common Stock
Warrant Certificate. Common Stock Warrants will be deemed to have been exercised
upon receipt of payment of the exercise price, subject to the receipt, within
five business days, of the Common Stock Warrant Certificate evidencing such
Common Stock Warrants. Upon receipt of such payment and the Common Stock Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver the
Common Stock purchasable upon such exercise. If fewer than all of the Common
Stock Warrants represented by such Common Stock Warrant Certificate are
exercised, a new Common Stock Warrant Certificate will be issued for the
remaining amount of Common Stock Warrants.
AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENT
The Warrant Agreement for a series of Common Stock Warrants may be amended or
supplemented without the consent of the holders of the Common Stock Warrants
issued thereunder to effect changes that are not inconsistent with the
provisions of the Common Stock Warrants and that do not adversely affect the
interests of the holders of the Common Stock Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the exercise
price of, and the number of shares of Common Stock covered by, a Common Stock
Warrant are subject to adjustment in certain events,
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including: (i) the issuance of Common Stock as a dividend or distribution on the
Common Stock; (ii) subdivisions and combinations of the Common Stock; (iii) the
issuance to all holders of Common Stock of certain rights or warrants entitling
them to subscribe for or purchase Common Stock within 45 days after the date
fixed for the determination of the stockholders entitled to receive such rights
or warrants, at less than the current market price (as defined in the Warrant
Agreement for such series of Common Stock Warrants); and (iv) the distribution
to all holders of Common Stock of evidences of indebtedness or assets of the
Company (excluding certain cash dividends and distributions described below) or
rights or warrants (excluding those referred to above). In the event that the
Company shall distribute any rights or warrants to acquire capital stock
pursuant to clause (iv) above (the "Capital Stock Rights"), pursuant to which
separate certificates representing such Capital Stock Rights will be distributed
subsequent to the initial distribution of such Capital Stock Rights (whether or
not such distribution shall have occurred prior to the date of the issuance of a
series of Common Stock Warrants), such subsequent distribution shall be deemed
to be the distribution of such Capital Stock Rights; provided that the Company
may, in lieu of making any adjustment in the exercise price of, and the number
of shares of Common Stock covered by, a Common Stock Warrant upon a distribution
of separate certificates representing such Capital Stock Rights, make proper
provision so that each holder of such a Common Stock Warrant who exercises such
Common Stock Warrant (or any portion thereof) (a) before the record date for
such distribution of separate certificates shall be entitled to receive upon
such exercise shares of Common Stock issued with Capital Stock Rights and (b)
after such record date and prior to the expiration, redemption or termination of
such Capital Stock Rights shall be entitled to receive upon such exercise, in
addition to the shares of Common Stock issuable upon such exercise, the same
number of such Capital Stock Rights as would a holder of the number of shares of
Common Stock that such Common Stock Warrant so exercised would have entitled the
holder thereof to acquire in accordance with the terms and provisions applicable
to the Capital Stock Rights if such Common Stock Warrant was exercised
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Company or any majority owned subsidiary shall
not be deemed outstanding for the purpose of any adjustment required pursuant to
clause (iv) above.
No adjustment in the exercise price of, and the number of shares of Common Stock
covered by, a Common Stock Warrant will be made for regular quarterly or other
periodic or recurring cash dividends or distributions or for cash dividends or
distributions to the extent paid from retained earnings. No adjustment will be
required unless such adjustment would require a change of at least 1% in the
exercise price then in effect; provided that any such adjustment not so made
will be carried forward and taken into account in any subsequent adjustment; and
provided further that any such adjustment not so made shall be made no later
than three years after the occurrence of the event requiring such adjustment to
be made or carried forward. Except as stated above, the exercise price of, and
the number of shares of Common Stock covered by, a Common Stock Warrant will not
be adjusted for the issuance of Common Stock or any securities convertible into
or exchangeable for Common Stock, or securities carrying the right to purchase
any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Company or (iii) a sale or conveyance to
another corporation of the property and assets of the Company as an entirety or
substantially as an entirety, in each case as a result of which holders of the
Company's Common Stock shall be entitled to receive stock, securities, other
property or assets (including cash) with respect to or in exchange for such
Common Stock, the holders of the Common Stock Warrants then outstanding will be
entitled thereafter to convert such Common Stock Warrants into the kind and
amount of shares of stock and other securities or property which they would have
received upon such reclassification, change, consolidation, merger, sale or
conveyance had such Common Stock Warrants been exercised immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance.
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DESCRIPTION OF THE LLC PREFERRED SECURITIES
The following is a summary of certain terms and provisions of the LLC Preferred
Securities offered hereby. Reference is made to the LLC Articles, the
Regulations of SCI Finance (the "LLC Regulations") and the amendment to the LLC
Regulations adopted or to be adopted by the Manager establishing the rights,
preferences, privileges, limitations and restrictions relating to the LLC
Preferred Securities (the "Declaration"). The summaries set forth below and in
the accompanying Prospectus Supplement address the material terms of the LLC
Preferred Securities of any particular series but do not purport to be complete
and are subject to, and qualified in their entirety by reference to, the LLC
Articles, the LLC Regulations and the Declaration. Capitalized terms used in the
summaries below and not otherwise defined herein have the respective meanings
set forth in the LLC Articles, the LLC Regulations and the Declaration.
GENERAL
SCI Finance is authorized to issue up to 7,000,000 LLC Preferred Shares, in one
or more series or classes, with such dividend rights, liquidation preferences
per share, redemption provisions, voting rights, conversion or exchange rights
and other rights, preferences, privileges, limitations and restrictions as are
set forth in the LLC Articles, the LLC Regulations and the Declaration adopted
or to be adopted by the Manager. All of the LLC Preferred Shares which may be
issued in one or more series or classes, including the LLC Preferred Securities,
will rank pari passu with each other with respect to participation in profits
and assets. The LLC Articles and the LLC Regulations as currently in effect do
not permit the issuance of any preference interests ranking, as to participation
in the profits or the assets of SCI Finance, senior to the LLC Preferred Shares.
Reference is made to the accompanying Prospectus Supplement relating to the LLC
Preferred Securities for the following terms of the LLC Preferred Securities:
(a) title;
(b) the dividend terms (when dividends will accrue and be payable);
(c) the optional redemption provisions and the Redemption Price;
(d) the liquidation preference per LLC Preferred Security;
(e) the conversion rights for, and conversion price per share of, SCI Common
Stock;
(f) certain provisions relating to Non-Stock or Common Stock Fundamental Changes
(as defined below);
(g) the initial Reference Market Price (as defined below);
(h) book entry provisions, if other than as set forth below; and
(i) any other terms of the series (and the accompanying Prospectus Supplement
may state that any of the terms set forth herein is inapplicable to such
series).
DIVIDENDS
Cumulative dividends on the LLC Preferred Securities will accrue and be payable
as set forth in the accompanying Prospectus Supplement, when, as and if declared
by SCI Finance, except as otherwise described below.
The annual dividend payable on each LLC Preferred Security will be fixed as set
forth in the accompanying Prospectus Supplement. The amount of dividends is
computed on the basis of twelve 30-day months and a 360-day year and, for any
period shorter than a full monthly dividend period, will be computed on the
basis of the actual number of days elapsed in such period. Payment of dividends
generally is limited to the amount of funds held by SCI Finance and legally
available therefor.
Dividends declared on the LLC Preferred Securities are payable to the record
holders thereof as they appear on the register for the LLC Preferred Securities
on the record date, which will be one Business Day prior to the relevant payment
date. In the event that any date on which dividends are payable on the LLC
Preferred
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Securities is not a Business Day, then payment of the dividend payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. The term "Business Day" shall mean any
day other than a day on which banking institutions in The City of New York are
authorized or required by law to close.
Dividends on the LLC Preferred Securities of any series will be cumulative
(whether or not declared and whether or not there are profits, surplus or other
funds legally available for the payment of dividends). Dividends on the LLC
Preferred Securities must be declared by SCI Finance, by action of the Manager,
in any calendar year or portion thereof to the extent that the Manager
reasonably anticipates that at the time of payment SCI Finance will have, and
must be paid by SCI Finance to the extent that at the time of proposed payment
SCI Finance has, (x) funds legally available for the payment of such dividends
and (y) cash on hand sufficient to permit such payments. It is anticipated that
SCI Finance's earnings will result almost exclusively from payments under the
Loans of proceeds from the sale of the LLC Preferred Securities and the issuance
of LLC Common Shares (as described under "-- Description of the Loans"). SCI
Limited will have the right to extend interest payments on the Loans for up to
60 monthly interest payment periods over the term of the Loans. Interest shall
accrue on and be payable in respect of any dividend payment on the LLC Preferred
Securities which is in arrears at the interest rate payable in respect of the
Loans to the extent permitted by applicable law.
CERTAIN RESTRICTIONS ON SCI FINANCE
If dividends have not been paid in full on the LLC Preferred Securities, SCI
Finance may not:
(i) pay, or declare and set aside for payment, any dividends on any other LLC
Preferred Shares ranking pari passu with the LLC Preferred Securities as regards
participation in profits of SCI Finance ("SCI Finance Dividend Parity Shares"),
unless the amount of any dividends declared on any SCI Finance Dividend Parity
Shares is paid on SCI Finance Dividend Parity Shares and the LLC Preferred
Securities on a pro rata basis on the date such dividends are paid on such SCI
Finance Dividend Parity Shares, so that
(x)(a) the aggregate amount of dividends paid on the LLC Preferred
Securities bears the same ratio to (b) the aggregate amount of dividends
paid on such SCI Finance Dividend Parity Shares as
(y)(a) the aggregate amount of all accumulated arrears of unpaid dividends
in respect of the LLC Preferred Securities bears to (b) the aggregate
amount of all accumulated arrears of unpaid dividends in respect of such
SCI Finance Dividend Parity Shares;
(ii) pay, or declare and set aside for payment, any dividends on any interests
in SCI Finance ranking junior to the LLC Preferred Securities as to dividends
("SCI Finance Dividend Junior Shares"); or
(iii) call for redemption or redeem, purchase or otherwise acquire any SCI
Finance Dividend Parity Shares or SCI Finance Dividend Junior Shares or any LLC
Preferred Securities other than (x) the redemption of all outstanding LLC
Preferred Securities at the Redemption Price (as defined below), (y) pursuant to
a pro rata redemption of the LLC Preferred Securities at the Redemption Price or
(z) pursuant to a purchase or exchange offer made on the same terms to all
holders of the LLC Preferred Securities, it being understood that this provision
shall not limit the rights of holders of LLC Preferred Securities to exercise
their conversion rights
until, in each case, such time as all accumulated arrears of unpaid dividends
(whether or not declared) on the LLC Preferred Securities shall have been paid
in full for all dividend periods terminating on or prior to, in the case of
clauses (i) and (ii), such payment, and in the case of clause (iii), the date of
such call, redemption, purchase or acquisition. As of the date of this
Prospectus, SCI Finance has no SCI Finance Dividend Parity Shares outstanding
and has no plans to issue such shares.
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MANDATORY REDEMPTION
The proceeds from any prepayment or repayment of principal on the Loans to SCI
Limited of proceeds from the issuance and sale of LLC Preferred Securities and
LLC Common Shares must be applied to redeem the LLC Preferred Securities at the
Redemption Price upon not less than 30 nor more than 60 days' notice in writing
by SCI Finance to the holders of the LLC Preferred Securities except at final
maturity of the Loans, in which case the redemption of LLC Preferred Securities
will occur as soon as practicable thereafter.
OPTIONAL REDEMPTION
The LLC Preferred Securities are redeemable, at the option of SCI Finance
subject to the prior consent of the Manager, in whole or in part from time to
time, on or after the date and subject to the terms set forth in the
accompanying Prospectus Supplement, upon not less than 30 nor more than 60 days'
notice in writing by SCI Finance to the holders of LLC Preferred Securities, at
the prices set forth in the accompanying Prospectus Supplement (the "Redemption
Price"), in each case plus accrued and unpaid dividends (whether or not
declared) to the date fixed for redemption.
In the event that fewer than all the outstanding LLC Preferred Securities are to
be redeemed, the LLC Preferred Securities to be redeemed will be selected as
described under "-- Book-Entry Issuance; the Depository Trust Company" below,
pro rata as nearly as practicable or by lot, or by such other method as the
Paying and Conversion Agent may determine to be fair and appropriate. In the
event that any monthly dividend payable on the LLC Preferred Securities is in
arrears, LLC Preferred Securities may not be redeemed unless by conversion of
LLC Preferred Securities into shares of SCI Common Stock, and neither SCI nor
SCI Finance nor any other subsidiary of SCI may purchase or acquire any of such
shares otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of record of the LLC Preferred Securities.
If SCI Finance gives a notice of redemption in respect of LLC Preferred
Securities, then, by 12:00 noon, New York time, on the redemption date, SCI
Finance will irrevocably deposit with the Paying and Conversion Agent or the
Depository Trust Company ("DTC"), as the case may be, funds sufficient to pay
the Redemption Price and will give the Paying and Conversion Agent or DTC, as
the case may be, irrevocable instructions and authority to pay the Redemption
Price to the holders thereof. If notice of redemption shall have been given and
funds deposited as required, then upon the date of such deposit, all rights of
holders of LLC Preferred Securities so called for redemption will cease, except
the right of the holders of such shares to receive the Redemption Price, but
without interest, and such shares will cease to be outstanding. In the event
that any date on which any payment in respect of the redemption of LLC Preferred
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. In the event that payment of the Redemption
Price in respect of LLC Preferred Securities is improperly withheld or refused
and not paid either by SCI Finance or by SCI pursuant to the Guarantee (as
defined below), dividends on such shares will continue to accrue, at the then-
applicable rate, from the original redemption date to the date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
Subject to the foregoing, SCI or its subsidiaries may at any time and from time
to time purchase outstanding LLC Preferred Securities by tender, in the open
market or by private agreement.
TAX EVENT REDEMPTION
If a Tax Event (as defined below) shall occur and be continuing, the LLC
Preferred Securities will be subject to redemption, at the option of SCI
Finance, in whole but not in part, upon not less than 30 nor more than 60 days'
notice in writing by the Company to the holders of such LLC Preferred
Securities, such notice to be given within 90 days following the occurrence of
such Tax Event at a redemption price or prices set forth in the accompanying
Prospectus Supplement.
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"Tax Event" means, with respect to any LLC Preferred Securities, that SCI shall
have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters to the effect that, on or after the date of the
accompanying Prospectus Supplement relating to such LLC Preferred Securities, as
a result of (a) any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) any amendment
to, or change in, an interpretation or application of any such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any official interpretation
or pronouncement that provides for a position with respect to such laws or
regulations that differs from the generally accepted position or (d) any action
taken by any governmental agency or regulatory authority, which amendment or
change is enacted, promulgated, issued or effective or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after the date of such accompanying Prospectus Supplement, there is more than
an insubstantial risk that (i) SCI Finance is subject to federal income tax with
respect to interest accrued or received on the Loans or (ii) SCI Finance is
subject to liability for more than a de minimis amount of taxes, duties or other
governmental charges.
LIQUIDATION DISTRIBUTION
In the event of any voluntary or involuntary liquidation, dissolution or winding
up of SCI Finance, the holders of LLC Preferred Securities at the time
outstanding will be entitled to receive out of the assets of SCI Finance legally
available for distribution to shareholders, before any distribution of assets is
made to holders of the LLC Common Shares or any other class of interests in SCI
Finance ranking junior to the LLC Preferred Securities as regards participation
in assets of SCI Finance, but together with the holders of every other series of
LLC Preferred Shares outstanding, if any, ranking pari passu with the LLC
Preferred Securities as regards participation in the assets of SCI Finance ("SCI
Finance Liquidation Parity Shares"), an amount equal, in the case of the holders
of the LLC Preferred Securities, to the aggregate of the liquidation preference
per LLC Preferred Security set forth in the accompanying Prospectus Supplement
and all accumulated and unpaid dividends (whether or not declared) to the date
of payment (the "Liquidation Distribution"). If, upon any such liquidation, the
Liquidation Distribution can be paid only in part because SCI Finance has
insufficient assets available to pay in full the aggregate Liquidation
Distribution and the aggregate maximum liquidation distributions on SCI Finance
Liquidation Parity Shares, then the amounts payable by SCI Finance on the LLC
Preferred Securities and on such SCI Finance Liquidation Parity Shares shall be
paid on a pro rata basis, so that
(i)(x) the aggregate amount paid in respect of the Liquidation Distribution
bears the same ratio to (y) the aggregate amount paid as liquidation
distributions (including accrued and unpaid dividends) on SCI Finance
Liquidation Parity Shares as
(ii)(x) the aggregate Liquidation Distribution bears to (y) the aggregate
liquidation preference (including accrued and unpaid dividends) on SCI Finance
Liquidation Parity Shares.
Pursuant to the LLC Regulations, SCI Finance will be considered to have
commenced voluntary wind-up and dissolution automatically (i) when the period
fixed for the duration of SCI Finance expires, (ii) if the holders of the LLC
Common Shares pass a resolution requiring SCI Finance to be wound up and
dissolved, (iii) upon the bankruptcy, resignation, withdrawal, expulsion,
termination, cessation or dissolution of SCI or the Manager (if other than SCI),
(iv) upon the happening of any event that would cause a holder of LLC Common
Shares to cease to be a holder thereof or (v) if SCI transfers any LLC Common
Shares or if all of the LLC Common Shares are redeemed, repurchased or cancelled
by SCI Finance.
VOTING RIGHTS
Except as provided below and under "-- Description of the
Guarantee -- Amendments and Assignments" and "-- Description of the
Loans -- Miscellaneous," the holders of the LLC Preferred Securities will have
no voting rights.
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If (i) SCI Finance fails to pay dividends in full on the LLC Preferred
Securities (whether or not there are funds legally available therefor) for more
than 60 consecutive monthly dividend periods, (ii) an Event of Default (as
defined in the Loan Agreement relating to the Loans) occurs and is continuing on
the Loans or (iii) SCI is in default under any of its payment or other
obligations under the Payment, Guarantee and Conversion Agreement entered into
by the Company for the benefit of each holder of LLC Securities (the
"Guarantee"), then the holders of outstanding LLC Preferred Securities, together
with the holders of any other series of LLC Preferred Shares having the right to
vote for the appointment of a trustee in such event, acting as a single class,
will be entitled, by resolution passed by the holders of a majority in
liquidation preference (plus all accrued and unpaid dividends per share) of such
shares present in person or represented by proxy at a meeting of such holders
convened for such purpose (or by written consent), to appoint and authorize a
trustee to enforce SCI Finance's rights as a creditor under the Loans against
SCI Limited and SCI (including the acceleration of principal and accrued
interest on the Loans), enforce the obligations undertaken by SCI under the
Guarantee and the Liability Assumption Agreement (as defined below) and declare
and pay dividends on the LLC Preferred Securities. For purposes of determining
whether SCI Finance has failed to pay dividends in full for more than 60
consecutive monthly dividend periods, dividends shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full cumulative
dividends have been or contemporaneously are declared and paid with respect to
all monthly dividend periods terminating on or prior to the date of payment of
such full cumulative dividends. Not later than 45 days after such entitlement
arises, the Manager will convene a meeting for the above purposes. If the
Manager fails to convene such meeting within such 45-day period, the holders of
10% in liquidation preference (plus all accrued and unpaid dividends per share)
of the outstanding LLC Preferred Securities and such other LLC Preferred Shares
will be entitled to convene such meeting. The provisions of the LLC Regulations
regarding the convening and conduct of meetings will apply with respect to any
such meeting. Any trustee so appointed shall vacate office immediately with
respect to the LLC Preferred Securities, if SCI Finance (or SCI pursuant to the
Guarantee) shall have paid in full all accrued and unpaid dividends on the LLC
Preferred Securities or such default or breach by SCI shall have been cured.
If any resolution is presented to the members of SCI Finance providing for, or
the Manager otherwise proposes to effect (it being understood that the automatic
dissolution and liquidation events described in clauses (iii), (iv) and (v)
under "-- Liquidation Distribution" above will not be deemed to be a proposal by
the Manager, and are not subject to the approval procedures described in this
paragraph), (x) any amendment of the LLC Articles, the LLC Regulations, the
Declaration or other action that adversely varies or abrogates the rights,
preferences or privileges of the LLC Preferred Securities (including, without
limitation, the authorization or issuance of any interests in SCI Finance
ranking, as to participation in the profits or assets of SCI Finance, senior to
the LLC Preferred Securities, or the issuance of any debt by SCI Finance), (y)
the liquidation, dissolution or winding up of SCI Finance or (z) the
modification of the provisions of the LLC Articles and the LLC Regulations which
absolutely prohibit transfers of LLC Common Shares, then the holders of
outstanding LLC Preferred Shares of all series (and, in the case of a resolution
described in clause (x) above which would equally adversely affect the rights,
preferences or privileges of any SCI Finance Dividend Parity Shares or any SCI
Finance Liquidation Parity Shares, such SCI Finance Dividend Parity Shares or
such SCI Finance Liquidation Parity Shares, as the case may be, or, in the case
of any resolution described in clause (y) or (z) above, all SCI Finance
Liquidation Parity Shares) will be entitled to vote together as a class on such
resolution or action of the Manager (but not on any other resolution or action),
and such resolution or action shall not be effective except with the approval of
the holders of 66 2/3% in liquidation preference (plus all accrued and unpaid
dividends) of such outstanding shares; provided, however, that no such approval
or ratification shall be required if the liquidation, dissolution and winding up
of SCI Finance is proposed or initiated upon the initiation of proceedings, or
after proceedings have been initiated, for the liquidation, dissolution or
winding up of SCI or the Manager (if other than SCI).
No vote or consent of the holders of the LLC Preferred Securities will be
required for SCI Finance to redeem and cancel LLC Preferred Securities in
accordance with the LLC Regulations and the Declaration.
The rights attached to the LLC Preferred Securities will be deemed not to be
varied by the creation or issue of, and no vote will be required for the
creation of, any further series of LLC Preferred Shares or any other interests
in SCI Finance ranking as regards participation in the profits or assets of SCI
Finance pari passu with or junior to the LLC Preferred Securities.
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Any required approval of holders of LLC Preferred Securities may be given at a
meeting of such holders convened for such purpose, at a general meeting of
shareholders of SCI Finance or pursuant to written consent. SCI Finance will
cause a notice of any meeting at which holders of the LLC Preferred Securities
are entitled to vote, or of any matter upon which action by written consent of
such holders is to be taken, to be mailed to each holder of record of the LLC
Preferred Securities. Each such notice will include a statement setting forth
(i) the date of such meeting or the date by which such action is to be taken,
(ii) a description of any resolution proposed for adoption at such meeting on
which such holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies or written
consents.
Notwithstanding that holders of LLC Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the LLC Preferred
Securities and such other LLC Preferred Shares entitled to vote or consent with
such LLC Preferred Securities as a single class outstanding at such time that
are owned by SCI or any entity owned 50% or more by SCI, either directly or
indirectly, shall not be entitled to vote or consent and shall, for the purposes
of such vote or consent, be treated as if they were not outstanding.
CONVERSION RIGHTS
Except as otherwise provided in the Prospectus Supplement, the holders of the
LLC Preferred Securities will have the conversion rights as set forth below:
Each LLC Preferred Security will be convertible at any time at the option of the
holder thereof into such number of whole shares of SCI Common Stock as is equal
to the per share liquidation preference of the LLC Preferred Securities
surrendered for conversion divided by the initial conversion price per share of
SCI Common Stock set forth in the accompanying Prospectus Supplement, subject to
adjustment as described below. LLC Preferred Securities called for redemption
will not be convertible after the close of business on the second Business Day
preceding the date fixed for redemption, unless SCI Finance defaults in payment
of the applicable Redemption Price or SCI defaults in its obligation to deliver
SCI Common Stock in exchange for shares of LLC Preferred Securities previously
surrendered for conversion. No fractional shares of SCI Common Stock will be
issued as a result of conversion, but in lieu thereof, in the sole discretion of
SCI, either (i) such fractional interest will be rounded upon the next whole
share or (ii) an appropriate amount will be paid in cash by SCI.
The initial conversion price is subject to adjustment (under formulae set forth
in the Declaration) in certain events, including: (i) the issuance of SCI Common
Stock as a dividend or distribution on SCI Common Stock; (ii) certain
subdivisions and combinations of the SCI Common Stock; (iii) the issuance to all
holders of SCI Common Stock of certain rights or warrants to purchase SCI Common
Stock; (iv) the distribution to all holders of SCI Common Stock of (A) shares of
capital stock of SCI (other than SCI Common Stock), (B) evidences of
indebtedness of SCI and/or (C) other assets (including securities, but excluding
any rights or warrants referred to in clause (iii) above, any dividends or
distributions in connection with the liquidation, dissolution or winding-up of
SCI, any dividends payable solely in cash that may from time to time be fixed by
the Board of Directors of SCI and any dividends or distributions referred to in
clause (i) above); (v) distributions consisting of cash, excluding (a) any cash
dividends on the SCI Common Stock to the extent that the aggregate cash
dividends per share of SCI Common Stock in any consecutive 12-month period do
not exceed the greater of (x) the amount per share of SCI Common Stock of the
cash dividends paid on the SCI Common Stock in the immediately preceding
12-month period, to the extent that such dividends for the immediately preceding
12-month period did not require an adjustment of the conversion price pursuant
to this clause (v) (as adjusted to reflect subdivisions or combinations of the
SCI Common Stock), and (y) 15% of the average of the daily Closing Price (as
defined in the Declaration) of the SCI Common Stock for the ten consecutive
Trading Days (as defined in the Declaration) immediately prior to the date of
declaration of such dividend, and (b) any dividend or distribution in connection
with the liquidation, dissolution or winding up of SCI or a redemption of any
rights issued under a rights agreement (provided, however that no adjustment
shall be made pursuant to this clause (v) if such distribution would otherwise
constitute a Fundamental Change (as defined below) and be reflected in a
resulting adjustment described below); and (vi) payment in respect of a tender
or exchange offer by SCI or any subsidiary of SCI for SCI Common Stock to the
extent that the cash and value of any other consideration included in such
payment per share of SCI Common Stock exceeds (by more than 10%, with any
smaller excess being disregarded in computing the adjustment provided hereby)
the first
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reported sale price per share of SCI Common Stock on the Trading Day next
succeeding the Expiration Time (as defined in the Declaration) for such tender
or exchange offer. If any adjustment is required to be made as set forth in
clause (v) above as a result of a distribution which is a dividend described in
subclause (a) of clause (v) above, such adjustment would be based upon the
amount by which such distribution exceeds the amount of the dividend permitted
to be excluded pursuant to such subclause (a) of clause (v). If an adjustment is
required to be made as set forth in clause (v) above as a result of a
distribution which is not such a dividend, such adjustment would be based upon
the full amount of such distribution. If an adjustment is required to be made as
set forth in clause (vi) above, such adjustment would be calculated based upon
the amount by which the aggregate consideration paid for SCI Common Stock
acquired in the tender or exchange offer exceeds the value of such shares based
on the first reported sale price of the SCI Common Stock on the Trading Day next
succeeding the Expiration Time. In lieu of making such a conversion price
adjustment in the case of certain dividends or distributions, SCI may provide
that upon the conversion of LLC Preferred Securities the holder converting such
LLC Preferred Securities will receive, in addition to the shares of SCI Common
Stock of which such holder is entitled, the cash, securities or other property
which such holder would have received if such holder had, immediately prior to
the record date for such dividend or distribution, converted its LLC Preferred
Securities into SCI Common Stock.
SCI Finance from time to time may, to the extent permitted by law and with the
consent of the Manager, reduce the conversion price by any amount for any period
of at least 20 Business Days, in which case SCI Finance shall give at least 15
days' notice of such reduction to the holders of the LLC Preferred Securities.
SCI Finance may, at its option and with the consent of the Manager, make such
reduction in the conversion price, in addition to those set forth above, as SCI
Finance deems advisable to avoid or diminish any income tax to holders of SCI
Common Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for tax purposes or for any
other reasons.
In the event that SCI shall be a party to any transaction or series of
transactions constituting a Fundamental Change, including, without limitation,
(i) any recapitalization or reclassification of the SCI Common Stock (other than
a change in par value or as a result of a subdivision or combination of the SCI
Common Stock); (ii) any consolidation or merger of SCI with or into another
corporation as a result of which holders of SCI Common Stock shall be entitled
to receive securities or other property or assets (including cash) with respect
to or in exchange for the SCI Common Stock (other than a merger which does not
result in a reclassification, conversion, exchange or cancellation of
outstanding shares of SCI Common Stock); (iii) any sale or transfer of all or
substantially all of the assets of SCI; or (iv) any compulsory share exchange,
pursuant to any of which holders of SCI Common Stock shall be entitled to
receive other securities, cash or other property, then appropriate provision
shall be made so that the holder of each LLC Preferred Security then outstanding
shall have the right thereafter to convert such security only into (x) if any
such transaction constitutes a Non-Stock Fundamental Change (as defined below),
the kind and amount of the securities, cash or other property that would have
been receivable upon such recapitalization, reclassification, consolidation,
merger, sale, transfer or share exchange by a holder of the number of shares of
SCI Common Stock issuable upon conversion of such LLC Preferred Security
immediately prior to such recapitalization, reclassification, consolidation,
merger, sale, transfer or share exchange, after giving effect to any adjustment
in the conversion price in accordance with clause (i) of the following
paragraph, and (y) if any such transaction constitutes a Common Stock
Fundamental Change (as defined below), common stock of the kind received by
holders of SCI Common Stock as a result of such Common Stock Fundamental Change
in an amount determined in accordance with clause (ii) of the following
paragraph. The company formed by such consolidation or resulting from such
merger or which acquires such assets or which acquires the SCI Common Stock, as
the case may be, shall make provisions in its certificate or articles of
incorporation or other constituent document to establish such right. Such
certificate or articles of incorporation or other constituent document shall
provide for adjustments which, for events subsequent to the effective date of
such certificate or articles of incorporation or other constituent document,
shall be as nearly equivalent as practical to the relevant adjustments provided
for in the preceding paragraphs and in this paragraph.
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Notwithstanding any other provision in the preceding paragraphs, if any
Fundamental Change (as defined below) occurs, the conversion price in effect
will be adjusted immediately after that Fundamental Change as follows:
(i) in the case of a Non-Stock Fundamental Change, the conversion price per
share of SCI Common Stock immediately following such Non-Stock Fundamental
Change will be the lower of (A) the conversion price in effect immediately prior
to such Non-Stock Fundamental Change, but after giving effect to any other prior
adjustments effected pursuant to the preceding paragraphs, and (B) the result
obtained by multiplying the greater of the Applicable Price (as defined below)
or the then applicable Reference Market Price (as defined below) by a fraction
of which the numerator will be the liquidation preference of the LLC Preference
Securities as set forth in the applicable Prospectus Supplement and the
denominator of which will be the then current Redemption Price per LLC Preferred
Security (or, if such Redemption Price is to be determined prior to the date on
which the LLC Preferred Securities may first be called for redemption, the
prices set forth in the Prospectus Settlement); and
(ii) in the case of a Common Stock Fundamental Change, the conversion price per
share of SCI Common Stock immediately following the Common Stock Fundamental
Change will be the conversion price in effect immediately prior to the Common
Stock Fundamental Change, but after giving effect to any other prior adjustments
effected pursuant to the preceding paragraphs, multiplied by a fraction, the
numerator of which is the Purchaser Stock Price (as defined below) and the
denominator of which is the Applicable Price; provided, however, that in the
event of a Common Stock Fundamental Change in which (A) 100% of the value of the
consideration received by a holder of SCI Common Stock is common stock of the
successor, acquiror or other third party (and cash, if any, paid with respect to
any fractional interests in that common stock resulting from the Common Stock
Fundamental Change) and (B) all of the SCI Common Stock shall have been
exchanged for, converted into, or acquired for, common stock of the successor,
acquiror or other third party, the conversion price per share of SCI Common
Stock immediately following the Common Stock Fundamental Change shall be the
conversion price in effect immediately prior to the Common Stock Fundamental
Change multiplied by a fraction, the numerator of which is one (1) and the
denominator of which is the number of shares of common stock of the successor,
acquiror, or other third party received by a holder of one share of SCI Common
Stock as a result of the Common Stock Fundamental Change.
Depending upon whether the Fundamental Change is a Non-Stock Fundamental Change
or Common Stock Fundamental Change, a holder may receive significantly different
consideration upon conversion. In the event of a Non-Stock Fundamental Change,
the holder has the right to convert LLC Preferred Securities into the kind and
amount of shares of stock and other securities or property or assets (including
cash), except as otherwise provided above, as is determined by the number of
shares of SCI Common Stock receivable upon conversion at the conversion price as
adjusted in accordance with clause (i) of the preceding paragraph. However, in
the event of a Common Stock Fundamental Change in which less than 100% of the
value of the consideration received by a holder of SCI Common Stock is common
stock of the successor, acquiror or other third party, a holder of a LLC
Preferred Security who converts such share following the Common Stock
Fundamental Change will receive consideration in the form of such common stock
only, whereas a holder who converted such share prior to the Common Stock
Fundamental Change will have received consideration in the form of such common
stock as well as any other securities or assets (which may include cash)
issuable upon conversion of such LLC Preferred Security immediately prior to
such Common Stock Fundamental Change.
The term "Applicable Price" means (i) in the event of a Non-Stock Fundamental
Change in which the holders of SCI Common Stock receive only cash, the amount of
cash receivable by a holder of one share of SCI Common Stock and (ii) in the
event of any other Non-Stock Fundamental Change or any Common Stock Fundamental
Change, the average of the reported last sale price for one share of the SCI
Common Stock (determined as provided in the Declaration) during the ten Trading
Days immediately prior to the record date for the determination of the holders
of SCI Common Stock entitled to receive cash, securities, property or other
assets in connection with such Non-Stock Fundamental Change or Common Stock
Fundamental Change or, if there is no such record date, prior to the date on
which the holders of the SCI Common Stock will have the right to receive such
cash, securities, property or other assets.
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The term "Common Stock Fundamental Change" means any Fundamental Change in which
more than 50% of the value (as determined in good faith by SCI's Board of
Directors) of the consideration received by holders of SCI Common Stock pursuant
to such transaction consists of common stock that, for the ten consecutive
Trading Days immediately prior to such Fundamental Change, has been admitted for
listing or admitted for listing subject to notice of issuance on a national
securities exchange or quoted on the Nasdaq National Market; provided, however,
that a Fundamental Change will not be a Common Stock Fundamental Change unless
either (i) SCI continues to exist after the occurrence of such Fundamental
Change and the outstanding LLC Preferred Securities continue to exist as
outstanding LLC Preferred Securities, or (ii) the outstanding LLC Preferred
Securities continue to exist as LLC Preferred Securities and are convertible
into common stock of the successor to SCI.
The term "Fundamental Change" means the occurrence of any transaction or event
or series of transactions or events pursuant to which all or substantially all
of the SCI Common Stock is exchanged for, converted into, acquired for or
constitutes solely the right to receive cash, securities, property or other
assets (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise); provided, however, in the case of a plan involving more than one
such transaction or event, for purposes of adjustment of the conversion price,
such Fundamental Change will be deemed to have occurred when substantially all
of the SCI Common Stock received in such transaction has been exchanged for,
converted into, or acquired for or constitutes solely the right to receive cash,
securities, property or other assets but the adjustment shall be based upon the
consideration that the holders of SCI Common Stock received in the transaction
or event as a result of which more than 50% of the SCI Common Stock shall have
been exchanged for, converted into, or acquired for, or shall constitute solely
the right to receive such cash, securities, properties or other assets; and
provided further, that such term does not include (i) any transaction or event
in which SCI and/or any of its subsidiaries are the issuers of all the cash,
securities, property or other assets exchanged, acquired or otherwise issued in
the transaction or event, or (ii) any transaction or event in which the holders
of SCI Common Stock receive securities of an issuer other than SCI if,
immediately following such transaction or event, holders of SCI Common Stock
hold a majority of the securities having the power to vote normally in the
election of directors of such other issuer outstanding immediately following
such transaction or other event.
The term "Non-Stock Fundamental Change" means any Fundamental Change other than
a Common Stock Fundamental Change.
The term "Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change, the average of the reported last sale prices for one share
of the common stock received by holders of SCI Common Stock in such Common Stock
Fundamental Change during the ten Trading Days immediately prior to the record
date for the determination of the holders of SCI Common Stock entitled to
receive such common stock or, if there is no such record date, prior to the date
upon which the holders of SCI Common Stock shall have the right to receive the
common stock.
The term "Reference Market Price" will initially mean the price set forth in the
accompanying Prospectus Supplement (which unless otherwise specified in the
accompanying Prospectus Supplement will be 66 2/3% of the last reported sale
price for SCI Common Stock on the New York Stock Exchange on the date of such
Prospectus Supplement) and, in the event of any adjustment to the conversion
price other than as a result of a Fundamental Change, the Reference Market Price
will also be adjusted so that the ratio of the Reference Market Price to the
conversion price after giving effect to any adjustment will always be the same
as the ratio of the initial Reference Market Price to the initial conversion
price of the LLC Preferred Securities.
No adjustment in the conversion price will be required unless the adjustment
would require a change of at least 1% in the conversion price then in effect;
provided, however, that any adjustment that would otherwise be required to be
made shall be carried forward and taken into account in any subsequent
adjustment.
The holders of LLC Preferred Securities at the close of the business on a
dividend payment record date will be entitled to receive the dividend payment on
those shares on the corresponding dividend payment date notwithstanding the
subsequent conversion thereof or SCI Finance's default in payment of the
dividend due on that dividend payment date. A holder of LLC Preferred Securities
on a dividend payment record date who (or
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whose transferee) tenders any shares for conversion on a dividend payment date
will receive the dividend payable by SCI Finance on LLC Preferred Securities on
that date.
BOOK-ENTRY ISSUANCE; THE DEPOSITORY TRUST COMPANY
DTC will act only as securities depository for the LLC Preferred Securities. The
LLC Preferred Securities will be issued as fully-registered in the name of Cede
& Co. (DTC's partnership nominee). One or more fully-registered global LLC
Preferred Security certificates will be issued, representing in the aggregate
the total number of LLC Preferred Securities, and will be deposited with DTC.
DTC may act as securities depository for any of the other Securities; if it does
so, a description of the applicable book-entry procedures will be set forth in
the applicable Prospectus Supplement.
DTC is a limited-purpose trust company organized under the New York Banking Law,
a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations ("Direct Participants").
DTC is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks, and trust companies that clear
through or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The Rules applicable to DTC
and its Participants are on file with the Commission.
Purchases of LLC Preferred Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the LLC Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
each LLC Preferred Security ("Beneficial Owner") is in turn to be recorded on
the Direct and Indirect Participants' records. Beneficial Owners will not
receive written confirmations from DTC of their purchase, but Beneficial Owners
are expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from the Direct
or Indirect Participant through which the Beneficial Owner purchased LLC
Preferred Securities. Transfers of ownership interests in the LLC Preferred
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in LLC Preferred Securities,
except in the event that use of the book-entry system for the LLC Preferred
Securities is discontinued. The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such laws may impair the ability to transfer beneficial interests in a
global LLC Preferred Security certificate.
DTC has no knowledge of the actual Beneficial Owners of the LLC Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such LLC Preferred Securities are credited, which may or may
not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices will be sent to Cede & Co. If less than all of the LLC
Preferred Securities are being redeemed, DTC's practice is to determine by lot
the amount of the interest of each Direct Participant in such series to be
redeemed.
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Although voting with respect to the LLC Preferred Securities is limited, in
those cases where a vote is required, neither DTC nor Cede & Co. will consent or
vote with respect to LLC Preferred Securities. Under its usual procedures, DTC
mails an Omnibus Proxy to SCI Finance as soon as possible after the record date.
The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts the LLC Preferred Securities are credited
on the record date (identified in a listing attached to the Omnibus Proxy).
Dividend payments on the LLC Preferred Securities will be made to DTC. DTC's
practice is to credit Direct Participants' accounts on the relevant payment date
in accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC, SCI Finance or SCI, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
dividends to DTC is the responsibility of SCI Finance, disbursement of such
payments to Direct Participants will be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owner will be the responsibility
of Direct and Indirect Participants.
DTC has advised SCI and SCI Finance that it will take any action permitted to be
taken by a holder of LLC Preferred Securities (including, without limitation,
the presentation of a LLC Preferred Security certificate for conversion) only at
the direction of one or more Participants to whose account with DTC interest in
such shares represented by a global certificate are credited and only in respect
of such number of LLC Preferred Securities represented by a global certificate
as to which such Participant or Participants has or have given such direction.
DTC may discontinue providing its services as securities depository with respect
to the LLC Preferred Securities at any time by giving reasonable notice to SCI
Finance. Under such circumstances, in the event that a successor securities
depository is not obtained, LLC Preferred Securities certificates are required
to be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system has
been obtained from sources that SCI Finance believes to be reliable, but neither
SCI Finance, SCI nor any underwriter or agent takes responsibility for the
accuracy thereof.
MISCELLANEOUS
The Transfer Agent, Registrant and Paying and Conversion Agent for the LLC
Preferred Securities will be Society National Bank.
Registration of transfers of LLC Preferred Securities will be effected without
charge by the Transfer Agent, but upon payment (with the giving of such
indemnity as the Transfer Agent may require) in respect of any tax or other
governmental charges which may be imposed in relation to it.
The Transfer Agent will not be required to register or cause to be registered
the transfer of LLC Preferred Securities after such shares have been called for
redemption.
SCI Finance is not subject to any mandatory redemption or sinking fund
provisions with respect to the LLC Preferred Securities. Holders of LLC
Preferred Securities have no preemptive rights.
SCI and SCI Finance will enter into an agreement (the "Liability Assumption
Agreement") pursuant to which SCI, in its capacity as Manager and otherwise,
agrees to guarantee the payment of any liabilities incurred by SCI Finance
(other than obligations to holders of LLC Preferred Securities). The Liability
Assumption Agreement expressly provides that such agreement is for the benefit
of, and is enforceable by, third parties to whom SCI Finance owes such
obligations.
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee which will
be executed and delivered by SCI for the benefit of the holders from time to
time of the LLC Preferred Securities.
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General
SCI will irrevocably and unconditionally agree, to the extent set forth herein,
to pay in full, to the holders of LLC Preferred Shares of any series which may
be issued by SCI Finance, including the LLC Preferred Securities, the Guarantee
Payments (as defined below) (except to the extent paid by SCI Finance), as and
when due, regardless of any defense, right of set-off or counterclaim which SCI
Finance may have or assert. The following payments constitute the "Guarantee
Payments" for the LLC Preferred Shares: (i) any accumulated and unpaid dividends
which have been theretofore declared on the LLC Preferred Shares of any series
out of monies legally available therefor, (ii) the redemption price (including
all accumulated and unpaid dividends) to the date of payment payable with
respect to LLC Preferred Shares of any series called for redemption by SCI
Finance out of monies legally available therefor, and (iii) upon a liquidation
of SCI Finance, the lesser of (a) the aggregate liquidation preference per LLC
Preferred Share and all accumulated and unpaid dividends (whether or not
declared) to the date of payment and (b) the amount of remaining assets of SCI
Finance legally available to holders of LLC Preferred Shares. The Guarantee also
requires SCI to deliver upon conversion of any LLC Preferred Shares all shares
of SCI Common Stock or other property into which such LLC Preferred Shares are
convertible. SCI's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amount by SCI to the holders of LLC Preferred
Shares of any series or by causing SCI Finance to pay such amounts to such
holders.
Certain Covenants of SCI
In the Guarantee, SCI will covenant that, so long as any LLC Preferred Shares of
any series remain outstanding, SCI shall not declare or pay any dividend on, and
SCI shall not, and SCI shall not permit any of its majority-owned subsidiaries
to, redeem, purchase, acquire or make a liquidation payment with respect to, any
of SCI's capital stock (other than the redemption by the Company of Series C
Junior Participating Preferred Stock Purchase Rights in accordance with the
Rights Agreement relating thereto and any reacquisition by the Company of any of
its stock issued in any acquisition as a result of a purchase price adjustment
or settlement of breach of warranties in connection with such acquisition) or
make any guarantee payments with respect to the foregoing (other than payments
under the Guarantee), if at such time (i) there shall have occurred any event
that constitutes an Event of Default under the Loan Agreement, (ii) SCI shall be
in default with respect to its payment or other obligations under the Guarantee
or the Manager shall be in default under its obligations under the Liability
Assumption Agreement or (iii) there shall exist any nonpayment of interest under
the Loans, including during any valid extension of the interest payment periods.
In the Guarantee, SCI will also covenant that, so long as any LLC Preferred
Shares of any series remaining outstanding, it will (i) maintain direct 100%
ownership of the LLC Common Shares and any other interests in SCI Finance (other
than the LLC Preferred Shares); (ii) cause more than 20% of the total value
(initially measured by shareholders' equity determined under generally accepted
accounting principles) of SCI Finance and, subject to the preferential rights of
the holders of LLC Preferred Securities as to dividends and liquidation
distributions, more than 20% of all interests in the capital, income, gain,
loss, deduction and credit of SCI Finance to be represented by LLC Common
Shares; (iii) not voluntarily dissolve, wind-up or liquidate SCI Finance; (iv)
remain the Manager of SCI Finance and timely perform all of its duties as
Manager of SCI Finance (including the duty to declare and pay dividends on the
LLC Preferred Shares to the extent set forth in the LLC Articles) and (v) use
reasonable efforts to cause SCI Finance to remain a limited liability company
under the laws of the State of Texas (provided however that SCI Finance may
reorganize under the laws of another jurisdiction provided that SCI Finance has
received an opinion from nationally recognized legal counsel that such
reorganization will not have an adverse effect, including, without limitation,
an adverse tax effect, on the holders of the LLC Preferred Securities) and use
reasonable efforts to cause SCI Finance to continue to be treated as a
partnership for United States Federal income tax purposes.
Amendments and Assignments
Except with respect to any changes which do not adversely affect the rights of
holders of LLC Preferred Shares (in which case no vote will be required), the
Guarantee may be changed only with the prior approval of the holders of not less
than 66 2/3% in liquidation preference (plus all accrued and unpaid dividends
per share) of
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each series of LLC Preferred Shares then outstanding. The manner of obtaining
any such approval of holders of LLC Preferred Shares will be as set forth under
"Description of the LLC Preferred Securities -- Voting Rights." All guarantees
and agreements contained in the Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of SCI and shall inure to the benefit of
all LLC Preferred Shares then outstanding.
Termination of the Guarantee
The Guarantee will terminate and be of no further force and effect as to a
series of LLC Preferred Shares upon full payment of the redemption price
(including all accrued and unpaid dividends), or the retirement or cancellation
of all of such series of LLC Preferred Shares, or delivery of all shares of SCI
Common Stock or other property required to be delivered upon conversion, with
respect to all outstanding LLC Preferred Shares of that series, or shall
terminate completely upon full payment of the amounts payable upon liquidation
of SCI Finance including the delivery of all shares of SCI Common Stock or other
property required to be delivered upon conversion of any LLC Preferred Shares.
The Guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of LLC Preferred Shares of such series must
restore payment of any sums, SCI Common Stock or other property paid under the
LLC Preferred Shares of such series or the Guarantee.
Status of the Guarantee
The Guarantee will constitute an unsecured obligation of SCI and will rank (i)
junior in right of payment to all other liabilities of SCI and will be
subordinated in right of payment in the same manner and to the same extent as
SCI's guarantee of obligations under the Loan Agreement is subordinated to
Senior Indebtedness, (ii) senior to the preferred stock of any series issued at
or after the date of the Guarantee by SCI and (iii) pari passu with any
guarantee entered into at or after the date of the Guarantee by SCI in respect
of any preferred or preference stock of any affiliate of SCI. See
"-- Description of the Loans -- Subordination." The Guarantee will constitute a
guarantee of payment and not of collection. A holder of LLC Preferred Shares may
enforce the Guarantee directly against SCI, and SCI will waive any right or
remedy to require that any action be brought against SCI Finance or any person
or entity before proceeding against SCI. The Guarantee will not be discharged
except by payment of the Guarantee Payments in full (to the extent not paid by
SCI Finance) and by complete performance of all obligations under the Guarantee.
Governing Law
The Guarantee will be governed by and construed in accordance with the laws of
the State of New York.
DESCRIPTION OF THE LOANS
Set forth below is a summary of information concerning the Loans from SCI
Finance to SCI Limited of 99% of the proceeds from the issuance of (i) the LLC
Preferred Securities and (ii) the LLC Common Shares and related capital
contributions ("Common Share Payments").
General
Pursuant to the Loan Agreement, SCI Finance has agreed to make the Loans to SCI
Limited in an aggregate principal amount equal to 99% of the sum of the
aggregate liquidation preference of the LLC Preferred Securities issued and sold
by SCI Finance and the aggregate Common Share Payments.
The entire principal amount of the Loans will become due and payable (together
with any accrued and unpaid interest thereon) on the earlier of the date set
forth in the accompanying Prospectus Supplement or the date upon which SCI, SCI
Limited or SCI Finance shall be dissolved, wound-up or liquidated.
The Loans and SCI Limited's obligations under the Loan Agreement (i) will be
senior obligations of SCI Limited and will be secured by fifty percent of the
outstanding capital stock of Service Corporation International plc, the
principal assets of which are the capital stock of GSG and PG, and (ii) will be
unconditionally guaranteed by SCI on an unsecured subordinated basis.
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Mandatory Payment
If SCI Finance redeems LLC Preferred Securities in accordance with the terms
thereof, the Loans will become due and payable in a principal amount equal to
the aggregate liquidation preference of the LLC Preferred Securities so
redeemed, together with any and all accrued but unpaid interest thereon and any
premium in excess of such principal amount. Any payment pursuant to this
provision shall be made in immediately available funds prior to 12:00 noon, New
York time, on the date fixed for such redemption or at such other time on such
earlier date as SCI Finance, SCI Limited and SCI shall agree.
Optional Prepayment
SCI Limited will have the right to prepay the Loans, in whole or in part
(together with (i) a premium computed based on the same percentage as the
percentage difference between the then applicable Redemption Price on the LLC
Preferred Securities and the stated liquidation preference of the LLC Preferred
Securities and (ii) any accrued but unpaid interest), as set forth in the
accompanying Prospectus Supplement.
Interest
The Loans will bear interest at an annual rate as set forth in the accompanying
Prospectus Supplement from the date they are made until maturity. Such interest
shall be payable on the last day of each calendar month of each year, commencing
as set forth in the accompanying Prospectus Supplement. In the event that any
date on which interest is payable on the Loans is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date, subject to certain rights of extension described below.
Extended Interest Payment Period
SCI Limited shall have the right at any time or from time to time during the
term of the Loans, so long as SCI Limited is not in default in the payment of
interest on the Loans, to extend interest payments under the Loans for up to 60
monthly interest payment periods; and at the end of such extended period SCI
Limited shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Loans to the extent permitted by
applicable law); provided, however, that, during any such extended interest
payment period, or at any time during which there is an Event of Default under
the Loans, SCI shall not declare or pay any dividend on, and SCI shall not, and
shall not permit any of its majority-owned subsidiaries to, redeem, purchase,
acquire or make a liquidation payment with respect to, any of shares of common
or preferred stock of SCI (other than the redemption by the Company of Series C
Junior Participating Preferred Stock Purchase Rights in accordance with the
Rights Agreement relating thereto and any reacquisition by the Company of any of
its stock issued in any acquisition as a result of a purchase price adjustment
or settlement of breach of warranties in connection with such acquisition) or
make any guarantee payments with respect to the foregoing (other than payments
under the Guarantee). Prior to the termination of any such extended interest
payment period, SCI Limited may further extend the interest payment period,
provided, that such extended interest payment period together with all such
further extensions thereof may not exceed 60 monthly interest payments in the
aggregate over the term of the Loans. SCI Limited shall give SCI Finance notice
of its selection of an extended interest payment period at least one Business
Day prior to the earlier of (i) the date SCI Finance declares, or would be
scheduled to declare, the related dividend or (ii) the date SCI Finance is
required to give notice of the record or payment date of such related dividend
to any national securities exchange on which the LLC Preferred Securities are
listed or other applicable self-regulatory organization or to holders of the LLC
Preferred Securities, but in any event not less than two Business Days prior to
such record date. SCI shall cause SCI Finance to give such notice of SCI
Limited's selection of such extended interest payment period to the holders of
the LLC Preferred Securities concurrently therewith.
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Additional Interest
If at any time SCI Finance is or will be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
such case, SCI Limited also will pay as additional interest such amounts as
shall be required so that the net amounts received and retained by SCI Finance
after paying any such taxes, duties, assessments or governmental charges will
not be less than the amounts SCI Finance would have received had no such taxes,
duties, assessments or governmental charges been imposed.
Method and Date of Payment
Each payment by SCI Limited of principal of, premium, if any, and interest on
the Loans shall be made to SCI Finance in lawful money of the United States, at
such place and to such accounts as may be designated by SCI Finance.
Subordination
The Loan Agreement provides that SCI's guarantee of the Loans is subordinate and
junior in right of payment to all Senior Indebtedness as provided in the Loan
Agreement. In this section, the term "Senior Indebtedness" means the principal
of, and premium, if any, and interest on (i) all indebtedness of SCI, other than
ordinary trade credit and other accounts payable arising in the ordinary course
of business, whether outstanding on the date of the Loan Agreement or thereafter
created, incurred or assumed, which is for money borrowed, or evidenced by a
note or similar instrument given in connection with the acquisition of any
business, properties or assets, including securities, (ii) any indebtedness of
others of the kinds described in the preceding clause (i) for which SCI is
responsible or liable as guarantor and (iii) amendments, renewals, extensions
and refundings of any such indebtedness, unless in any instrument or instruments
evidencing or securing such indebtedness or pursuant to which the same is
outstanding, or in any such amendment, renewal, extension or refunding, it is
expressly provided that such indebtedness is not superior in right of payment to
SCI's guarantee of the Loans. The Senior Indebtedness shall continue to be
Senior Indebtedness and entitled to the benefits of the subordination provisions
of the Loan Agreement irrespective of any amendment, modification or waiver of
any term of the Senior Indebtedness or extension or renewal of the Senior
Indebtedness.
The rights of SCI Limited and its creditors, including SCI Finance as to the
Loans, and SCI and its creditors, including SCI Finance pursuant to SCI's
guarantee of the Loans and the holders under the Guarantee, to participate in
the assets of any subsidiary of SCI Limited or SCI upon any liquidation or
reorganization of such subsidiary or otherwise will be subject to the prior
claims of creditors of such subsidiary, except to the extent that SCI Limited or
SCI may itself be a creditor with recognized claims against the subsidiary. The
ability of SCI Limited or SCI to meet its obligations may be dependent upon the
payment to it of dividends, interest and other charges by its subsidiaries. The
ability of SCI Limited's subsidiaries and SCI's subsidiaries to pay dividends or
make other payments to SCI Limited or SCI, as the case may be, is not currently
subject to any contractual or legal restriction (except for limitations imposed
by applicable state corporation laws) which could materially affect SCI
Limited's and SCI's ability to meet their obligations under the Loan Agreement
and the Guarantee. Through their ownership of their subsidiaries, SCI Limited
and SCI currently control (subject to applicable state corporation laws) such
subsidiaries' payment of dividends or other distributions; there can be no
assurance, however, that SCI Limited and SCI will continue such ownership and
control of their subsidiaries.
In the event that (i) SCI shall default in the payment of any principal of,
premium, if any, or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or
declaration or otherwise or (ii) an event of default occurs with respect to any
Senior Indebtedness permitting the holders thereof to accelerate the maturity
thereof and written notice of such event of default is given to SCI by the
holders of such Senior Indebtedness, then unless and until such default in
payment or event of default shall have been cured or waived or shall have ceased
to exist, no direct or indirect payment (in cash, property, securities, by
set-off or otherwise) may be made or agreed to be made by SCI on account of
SCI's guarantee of the Loans or interest thereon or by SCI in respect of any
repayment, redemption, retirement, purchase or other acquisition of the Loans.
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In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to SCI or its property or for the benefit of its creditors, (ii) any proceeding
for the liquidation, dissolution or other winding up of SCI, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by SCI for the benefit of creditors or (iv) any other
marshaling of the assets of SCI, all Senior Indebtedness (including, without
limitation, interest accruing thereon after the commencement of any such
proceeding, assignment or marshaling of assets) shall first be paid in full
before any payment or distribution, whether in cash, securities or other
property, may be made by SCI on account of its guarantee obligations under the
Loan Agreement and the Loans. In any such event, any payment or distribution,
whether in cash, securities or other property (other than securities of SCI or
any other corporation provided for by a plan of reorganization or a
readjustment, the payment of which is subordinate, at least to the extent
provided in the subordination provisions relating to SCI's guarantee obligations
under the Loan Agreement and the Loans with respect to the indebtedness
evidenced by the Loans, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), which would otherwise (but for the
subordination provision) be payable or deliverable in respect of SCI's guarantee
obligations under the Loan Agreement and the Loans shall be paid or delivered
directly to the holders of Senior Indebtedness (or their representative or
trustee) in accordance with the priorities then existing among such holders
until all Senior Indebtedness shall have been paid in full. No present or future
holder of any Senior Indebtedness may be prejudiced in the right to enforce
subordination of SCI's guarantee obligations under the Loan Agreement and the
Loans by any act or failure to act on the part of SCI.
Senior Indebtedness shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, SCI Finance shall be subrogated to all the
rights of any holders of Senior Indebtedness to receive any further payments or
distributions applicable to the Senior Indebtedness until the Loans shall have
been paid in full, and such payments or distributions of cash, securities or
other property received by SCI Finance, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of Senior Indebtedness,
shall, as between SCI and its creditors other than the holders of Senior
Indebtedness on the one hand, and SCI Finance, on the other, be deemed to be a
payment by SCI on account of Senior Indebtedness, and not on account of SCI's
guarantee obligations under the Loan Agreement and the Loans.
Covenants
SCI will covenant that SCI will not declare or pay any dividend on, and SCI will
not, and will not permit any of its majority-owned subsidiaries to, redeem,
purchase, acquire or make a liquidation payment with respect to, any of SCI's
capital stock (other than the redemption by the Company of Series C Junior
Participating Preferred Stock Purchase Rights in accordance with the Rights
Agreement relating thereto and any reacquisition by the Company of any of its
stock issued in any acquisition as a result of a purchase price adjustment or
settlement of breach of warranties in connection with such acquisition), or make
any guarantee payments with respect to the foregoing (other than payments under
the Guarantee), if at such time (i) there shall have occurred any event that
constitutes an Event of Default under the Loan Agreement, (ii) SCI shall be in
default with respect to its payment or other obligations under the Guarantee or
SCI or the Manager shall be in default under its obligations under the Liability
Assumption Agreement or (iii) there shall exist any nonpayment of interest under
the Loans, including during any valid extension of the interest payment periods.
SCI will also covenant (i) to maintain direct 100% ownership of the LLC Common
Shares and any other interests of SCI Finance other than the LLC Preferred
Shares, (ii) to cause more than 20% of the total value (initially measured by
shareholders' equity determined in accordance with generally accepted accounting
principles) of SCI Finance and, subject to the preferential rights of the
holders of LLC Preferred Shares as to dividends and liquidation distributions,
more than 20% of all interests in the capital, income, gain, loss, deduction and
credit of SCI Finance to be represented by LLC Common Shares, (iii) not to
dissolve, wind-up or liquidate SCI Finance voluntarily, (iv) to remain the
Manager of SCI Finance and to timely perform all of its duties as Manager
(including the duty to declare and pay dividends on the LLC Preferred Shares as
described in "-- Dividends") and (v) to use its reasonable efforts to cause SCI
Finance to remain a limited liability company under the laws
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of the State of Texas (provided however that SCI Finance may reorganize under
the laws of another jurisdiction provided that SCI Finance has received a legal
opinion from nationally recognized legal counsel that such reorganization will
not have an adverse effect, including, without limitation, an adverse tax
effect, on the holders of the LLC Preferred Securities) and use reasonable
efforts to cause SCI Finance to continue to be treated as a partnership for
United States Federal income tax purposes. In addition, SCI has agreed to
maintain and reserve sufficient authorized but unissued Common Stock sufficient
to satisfy all conversion rights under the LLC Preferred Securities and to have
available for issuance such other property as may be subject to delivery
pursuant to such conversion rights.
SCI Finance may not waive compliance or waive any default in compliance by SCI
Limited of any covenant or other term in the Loan Agreement or by SCI of its
guarantee of the Loans without the approval of the same percentage of the
holders of LLC Preferred Securities, obtained in the same manner, as would be
required for an amendment of the Loan Agreement to the same effect.
Events of Default
If one or more of the following events (each an "Event of Default") shall occur
and be continuing:
(a) default in the payment of any interest on the Loans when due for 10 Business
Days; provided, however, that a valid extension of the interest payment period
by SCI Limited shall not constitute a default in the payment of interest for
this purpose (see "-- Description of the Loans-- Interest"); or
(b) default in the payment of principal of or premium of any, on the Loans when
due; or
(c) failure of SCI to comply with the conversion provisions of the LLC Preferred
Securities; or
(d) the dissolution, winding-up or liquidation of SCI Finance; or
(e) the bankruptcy, insolvency or liquidation of SCI or SCI Limited; or
(f) breach by SCI Limited or SCI of any of its covenants under the Loan
Agreement continued for 30 days after notice to SCI Limited and SCI from the
holders of not less than 25 percent in liquidation preference of the LLC
Preferred Securities then outstanding;
then, SCI Finance will have the right to declare the principal of and the
interest on the Loans (including any interest subject to an extension election)
and all other amounts payable under the Loan Agreement to be forthwith due and
payable and to enforce its other rights as a creditor with respect to the Loans.
Under the terms of the LLC Preferred Securities, the holders of outstanding LLC
Preferred Securities will have the rights referred to under "-- Description of
the LLC Preferred Securities -- Voting Rights," including the right to appoint a
trustee, which trustee will be authorized to exercise SCI Finance's right to
accelerate the principal amount of the Loans and to enforce SCI Finance's other
creditor rights under the Loans and the Loan Agreement, and SCI Limited and SCI
agree to cooperate with such trustee.
Miscellaneous
SCI Limited will have the right at all times to assign any of its rights or
obligations under the Loan Agreement to a direct or indirect wholly-owned
subsidiary of SCI; provided, however, that, in the event of any such assignment,
SCI Limited will remain jointly and severally liable for all such obligations;
and provided further, that SCI Limited shall receive an opinion of legal counsel
that the effect of any such assignment does not cause SCI Finance to be
considered an "investment company" under the Investment Company Act of 1940, as
amended. SCI Finance may not assign any of its rights under the Loan Agreement
without the prior written consent of SCI Limited and SCI. Subject to the
foregoing, the Loan Agreement will be binding upon and inure to the benefit of
SCI Limited, SCI and SCI Finance and their respective successors and assigns.
The Loan Agreement provides that it may not otherwise be assigned by SCI
Limited, SCI Finance or SCI.
The Loan Agreement will provide that neither SCI Limited nor SCI may permit
another entity to merge with or into SCI Limited or SCI, as the case may be,
unless (i) at such time no Event of Default has occurred and is continuing, or
would occur as a result of such merger, and (ii) either (a) SCI Limited or SCI,
as the case may
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be, is the survivor of such merger or (b) the survivor is a corporation
organized under the laws of the United States or any state thereof and expressly
assumes all of the obligations of SCI Limited or SCI, as the case may be, under
the Loan Agreement and the Loans and SCI Limited receives an opinion of counsel
from nationally recognized legal counsel that the merger will not result in the
recognition of taxable gain or loss by the holders of the LLC Preferred
Securities.
The Loan Agreement will be governed by and construed in accordance with the laws
of the State of New York.
The Loan Agreement may be amended by mutual consent of the parties in the manner
the parties shall agree; provided, however, that, so long as any of the LLC
Preferred Securities remain outstanding, no such amendment shall be made that
adversely affects the holders of LLC Preferred Securities, no termination of the
Loan Agreement shall occur, and no Event of Default or compliance with any
covenant under the Loan Agreement may be waived by SCI Finance, without the
prior consent of the holders of 66 2/3% in liquidation preference of the
outstanding LLC Preferred Securities, in writing or at a duly constituted
meeting of such holders.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
REGARDING THE LLC PREFERRED SECURITIES
GENERAL
In the opinion of Miller & Chevalier, Chartered, special tax counsel to SCI and
SCI Finance, the following discussion accurately describes, subject to the
qualifications stated herein, the material federal income tax considerations
relevant to the purchase, ownership and disposition of the LLC Preferred
Securities. This discussion, which may be modified or supplemented in a
Prospectus Supplement, is a summary that does not purport to deal with all
aspects of federal income taxation that may be relevant to holders of the LLC
Preferred Securities, nor to certain types of holders subject to special
treatment under the federal income tax laws (for example, banks, life insurance
companies, dealers, tax-exempt organizations, persons whose functional currency
is not the U.S. dollar, or foreign persons and foreign entities). Unless
otherwise stated, this discussion is directed at initial purchasers who acquire
the LLC Preferred Securities at original issue and hold the LLC Preferred
Securities as capital assets.
This discussion is based on the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury regulations, judicial decisions and Internal Revenue Service
("IRS") rulings and notices currently in effect, all of which are subject to
change, which change may possibly be applied in a retroactive manner that could
adversely affect a holder of the LLC Preferred Securities. While the discussion
is based on the opinion of Miller & Chevalier, Chartered, an opinion of counsel
is not binding on the IRS or the courts. Neither SCI nor SCI Finance has sought,
or intends to seek, a ruling from the IRS that the positions stated in the
discussion will be accepted by the IRS. Moreover, there are no cases or rulings
on similar transactions, and there can be no assurance that the IRS will agree
with the conclusions expressed below.
PROSPECTIVE PURCHASERS OF LLC PREFERRED SECURITIES ARE ADVISED TO CONSULT THEIR
OWN TAX ADVISORS AS TO THE FEDERAL INCOME, ESTATE AND GIFT TAX CONSEQUENCES OF
PURCHASING, HOLDING AND DISPOSING OF LLC PREFERRED SECURITIES, AS WELL AS THE
TAX CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, FOREIGN COUNTRY OR OTHER
JURISDICTION.
TAX CLASSIFICATION
While the following matters are not free from doubt, Miller & Chevalier,
Chartered is of the opinion that (i) SCI Finance will be classified as a
partnership for federal income tax purposes and not as an association (or as a
publicly traded partnership) taxable as a corporation, and (ii) the Loans will
be classified as indebtedness for such purposes. This advice is based upon the
terms of the Loans, the LLC Articles, the LLC Regulations and
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related documents and transactions as described in this Prospectus (and assumes
ongoing compliance with such documents).
Prospective investors and their advisors should be aware, however, that the
proper characterization of the arrangement involving SCI Finance, the Loans and
the LLC Preferred Securities is not entirely clear, and the IRS has recently
announced that it will scrutinize and may challenge transactions with some
features that are similar to this arrangement. If, contrary to the opinion of
tax counsel, the IRS successfully argued that SCI Finance should be taxable as a
corporation, SCI Finance would be subject to federal income tax at corporate
rates and distributions to holders of LLC Preferred Securities likely would be
taxable as dividend income. Similarly, if, contrary to the opinion of tax
counsel, the IRS successfully asserted that the Loans were properly classified
as stock or other equity, then payments on the Loans would not be deductible by
SCI Limited as interest, but instead likely would be treated as distributions to
holders taxable as dividends.
Prospective investors should also be aware that the IRS recently issued a
proposed Treasury regulation under which the IRS can disregard or recast the
form of a partnership transaction if the partnership is formed or availed of in
connection with a transaction (or series of related transactions) "with a
principal purpose of substantially reducing the present value of the partners'
aggregate federal tax liability" in a manner inconsistent with the intent of the
partnership provisions of the Code. The regulation is proposed to be effective
for all transactions occurring on or after May 12, 1994. In the view of Miller &
Chevalier, Chartered, SCI Finance should not be considered to be formed or
availed of with the purpose proscribed by the proposed regulation because the
transactions involving SCI Finance are not of the type intended to fall within
the scope of the proposed regulation. There can be no assurance, however, that
the IRS will agree with this view. It also is impossible to predict what changes
might be made in the proposed regulation before it is adopted in final form.
Unless otherwise noted, the remainder of this summary assumes, in accordance
with the opinion of Miller & Chevalier, Chartered, that SCI Finance is properly
classified as a partnership and the Loans are properly classified as
indebtedness for federal income tax purposes.
INCOME FROM LLC PREFERRED SECURITIES
As partners in a partnership, each holder of LLC Preferred Securities will be
required to include in gross income its distributive share of the net income of
SCI Finance, which net income generally will be equal to the amount of interest
received or accrued on the Loans. See "Original Issue Discount" below. Any
amount so included in a holder's gross income will increase its tax basis in the
LLC Preferred Securities, and the amount of distributions of cash or other
property by SCI Finance to the holder will reduce such holder's tax basis in the
LLC Preferred Securities. No portion of the amounts received on the LLC
Preferred Securities will be eligible for the dividends received deduction.
SCI Finance does not presently intend to make an election under Section 754 of
the Code. As a result, a subsequent purchaser of LLC Preferred Securities will
not be permitted to adjust the tax basis in its allocable share of SCI Finance's
assets so as to reflect any difference between its purchase price for the LLC
Preferred Securities and the underlying tax basis of SCI Finance in its assets.
As a result, a holder of LLC Preferred Securities may be required to report a
larger or smaller amount of income from holding LLC Preferred Securities than
would otherwise be appropriate based upon the holder's purchase price for the
LLC Preferred Securities.
ORIGINAL ISSUE DISCOUNT
Under the terms of the Loans, SCI Limited will have the right to extend interest
payments under the Loans for up to 60 monthly interest payment periods. If the
payment period is extended, SCI Finance will continue to accrue income, equal to
the amount of the interest payment due at the end of the extended payment
period, over the length of the extended payment period. As a result, holders of
record during an extended interest payment period will include interest in gross
income in advance of the receipt of cash, and any such holders who dispose of
LLC Preferred Securities prior to the record date for the payment of dividends
following such extended interest payment period will include such holder's
allocable share of such interest in gross income but will not receive any cash
from SCI Finance related thereto. The tax basis of an LLC Preferred Security
will be increased by the
46
<PAGE> 86
amount of any interest that is included in income without a receipt of cash and
will be decreased when and if such cash is subsequently received from SCI
Finance.
A holder should not be required to allocate a portion of the amount paid for an
LLC Preferred Security to any right to convert such LLC Preferred Security into
SCI Common Stock and, therefore, should not be required to include any amount in
income by reason of original issue discount on the LLC Preferred Security. The
IRS might take a contrary view, however, and require holders to allocate a
portion of the price paid for a convertible LLC Preferred Security to the right
to convert into SCI Common Stock. If the IRS were successful in requiring such
an allocation, a holder could be required to include an incremental amount of
original issue discount (in addition to stated interest) in income over the life
of such LLC Preferred Security. SCI intends to take the position that no
allocation that would result in additional original issue discount (in excess of
stated interest) is required.
USE OF CONVENTION
SCI Finance may adopt a convention for allocating all of the net income accrued
by SCI Finance in any calendar month, such as by allocating the net income to
the holders of record of the LLC Preferred Securities and the Common Shares on
the dividend record date. It is unclear whether this convention will be
respected for federal income tax purposes. If it is not respected, the
distributive share of SCI Finance's net income allocable to LLC Preferred
Securities in respect of a month in which such shares are sold may be allocated
between the seller and the purchaser on some other basis. Any amount so
allocated to the holder of record of the LLC Preferred Securities, whether as
seller or purchaser, would be includible in the holder's income and would
increase the holder's basis in the LLC Preferred Securities.
DISPOSITION OF LLC PREFERRED SECURITIES
Gain or loss will be recognized on a sale of LLC Preferred Securities, including
a complete redemption for cash, equal to the difference between the amount
realized and the holder's tax basis for the LLC Preferred Securities sold. Gain
or loss on the sale or exchange of LLC Preferred Securities held for more than
one year generally will be taxable as long-term capital gain or loss. The
adjusted tax basis of the LLC Preferred Securities sold by a holder will equal
the amount paid by such holder for the LLC Preferred Securities, plus the share
of partnership income allocated to such holder and reduced by any cash or other
property distributed to such holder by SCI Finance. A holder acquiring LLC
Preferred Securities at different prices may be required to maintain a single
aggregate adjusted tax basis in such LLC Preferred Securities, and, upon sale or
other disposition of some of the LLC Preferred Securities, allocate a pro rata
portion of such aggregate tax basis to the LLC Preferred Securities sold (rather
than maintaining a separate tax basis in each LLC Preferred Security for
purposes of computing gain or loss on a sale of that LLC Preferred Security).
If a holder of LLC Preferred Securities is required to recognize an aggregate
amount of income over the life of the LLC Preferred Securities that exceeds the
aggregate cash distributions with respect thereto, such excess generally will
result in a capital loss upon the retirement of the LLC Preferred Securities.
To the extent SCI Limited is required to pay a prepayment premium to SCI Finance
in connection with a prepayment of the Loans, SCI Finance will pay a
corresponding redemption premium to holders of LLC Preferred Securities whose
LLC Preferred Securities are redeemed. SCI Finance will recognize capital gain
on a prepayment of the Loans to the extent of the prepayment premium. SCI
Finance's gain will be allocated to the holders whose LLC Preferred Securities
are subsequently redeemed by SCI Finance, and the allocated gain should increase
such holders' adjusted tax basis in these LLC Preferred Securities. A holder who
has a basis increase due to such allocation will not have additional taxable
gain attributable to the redemption premium upon SCI Finance's subsequent
redemption of the holder's LLC Preferred Securities.
CONVERSION OF LLC PREFERRED SECURITIES
A holder who converts convertible LLC Preferred Securities into SCI Common Stock
will recognize gain or loss in an amount equal to the difference between the tax
basis of the LLC Preferred Securities and the fair market value of the SCI
Common Stock received plus the amount of cash received in lieu of fractional
shares. Such gain
47
<PAGE> 87
or loss will be long-term capital gain or loss if the LLC Preferred Securities
have been held for more than one year. The holder's tax basis in the SCI Common
Stock received in the conversion will equal its fair market value.
ADJUSTMENT OF CONVERSION PRICE
Treasury regulations under Section 305 of the Code would treat holders of LLC
Preferred Securities as having received a constructive distribution from SCI in
the event the conversion ratio of convertible LLC Preferred Securities were
adjusted if (i) as a result, the proportionate interest of the holders of such
LLC Preferred Securities in the assets or earnings and profits of SCI were
increased and (ii) the adjustment was not made pursuant to a bona fide,
reasonable antidilution formula. An adjustment in the conversion ratio would not
be considered made pursuant to such a formula if the adjustment was made to
compensate for certain taxable distributions with respect to the stock into
which such LLC Preferred Securities are convertible. Thus, under certain
circumstances, a reduction in the conversion price for the LLC Preferred
Securities is likely to be taxable to the holders thereof as dividend to the
extent of the earnings and profits of SCI.
INFORMATION RETURNS AND AUDIT PROCEDURES
The Manager will furnish each holder with a Schedule K-1 each year setting forth
such holder's allocable share of income for the prior calendar year. The Manager
is required, under the LLC Regulations, to furnish such Schedule K-1 as soon as
practicable following the end of the taxable year, but in any event prior to
March 31st of each succeeding year (assuming, as anticipated, that SCI Finance's
taxable year is a calendar year).
Any person who holds LLC Preferred Securities as nominee for another person is
required to furnish to SCI Finance (a) the name, address and taxpayer
identification number of the beneficial owner and the nominee; (b) information
as to whether the beneficial owner is (i) a person that is not a United States
person, (ii) a foreign government, an international organization or any
wholly-owned agency or instrumentality of either of the foregoing or (iii) a
tax-exempt entity; (c) the amount and description of LLC Preferred Securities
held, acquired or transferred for the beneficial owner; and (d) certain
information including the dates of acquisitions and transfers, means of such
acquisitions and transfers, and acquisition costs for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are United
States persons and certain information on LLC Preferred Securities they acquire,
hold or transfer for their own accounts. A penalty of $50 per failure (up to a
maximum of $100,000 per calendar year) is imposed by the Code for failure to
report such information to SCI Finance. The nominee is required to supply the
beneficial owners of the LLC Preferred Securities with the information furnished
to SCI Finance.
SCI, as the tax matters partner, will be responsible for representing the
holders in any dispute with the IRS. The Code provides for administrative
examination of a partnership as if the partnership were a separate and distinct
taxpayer. Generally, the statute of limitations for partnership items does not
expire before three years from the later of the filing or the last date for
filing of the partnership information return. Any adverse determination
following an audit of the return of SCI Finance by the appropriate taxing
authorities could result in an adjustment of the tax returns of the holders,
and, under certain circumstances, a holder may be precluded from separately
litigating a proposed adjustment to the items of the partnership. An adjustment
could also result in an audit of a holder's tax return and adjustments of items
not related to the income and losses of SCI Finance.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate U.S. holders from the sale of LLC Preferred Securities within the
United States, and "backup withholding" at a rate of 31% will apply to such
payments if the United States holder fails to provide an accurate taxpayer
identification number.
Payments of the proceeds from the sale by a United States Alien Holder (as
defined below) of LLC Preferred Securities made to or through a foreign office
of a broker will not be subject to information reporting or backup withholding,
except that, if the broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person 50% or more of
whose gross income is effectively connected with a United States trade or
business for a specified three-year period, information reporting may apply to
such payments.
48
<PAGE> 88
Payments of the proceeds from the sale of LLC Preferred Securities to or through
the United States office of a broker is subject to information reporting and
backup withholding unless the holder or beneficial owner certifies as to its
non-United States status or otherwise establishes an exemption for information
reporting and backup withholding.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any holder
who or which is (i) a nonresident alien individual or (ii) a foreign
corporation, foreign partnership, foreign estate or foreign trust, in any such
case not subject to United States federal income tax on a net income basis in
respect of an LLC Preferred Security.
Under present United States federal income tax law:
(i) payments with respect to interest from SCI Limited made to SCI Finance or
any of its paying agents to any holder of an LLC Preferred Security who or which
is a United States Alien Holder will not be subject to United States federal
withholding tax; provided that (a) the beneficial owner of the LLC Preferred
Security does not actually or constructively own 10% or more of the total
combined voting power of all classes of stock of SCI Limited entitled to vote,
(b) the beneficial owner of the LLC Preferred Security is not a controlled
foreign corporation that is related to SCI Limited through stock ownership, and
(c) either (A) the beneficial owner of the LLC Preferred Security certifies to
SCI Finance or its agent, under penalties of perjury, that it is not a United
States Holder and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "financial
institution") and holds the LLC Preferred Security certifies to SCI Finance or
its agent under penalties of perjury that such statement has been received from
the beneficial owner by it or by a financial institution between it and the
beneficial owner and furnishes the payor with a copy thereof; and
(ii) a United States Alien Holder of an LLC Preferred Security will not be
subject to United States withholding tax on any gain realized on the sale or
exchange of a LLC Preferred Security.
PLAN OF DISTRIBUTION
The Company and/or SCI Finance may sell Securities to or through underwriters,
and also may sell Securities directly to other purchasers or through agents. The
distribution of the Securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive compensation
from the Company and/or SCI Finance or from purchasers of Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and/or SCI Finance and any profit on the
resale of Securities by them may be deemed to be underwriting discounts and
commissions, under the Act. Any such underwriter or agent will be identified,
and any such compensation received from the Company and/or SCI Finance will be
described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company and/or SCI Finance,
underwriters and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company and/or SCI Finance against certain
liabilities, including liabilities under the Act.
If so indicated in the Prospectus Supplement, the Company and/or SCI Finance
will authorize underwriters or other persons acting as the Company's and/or SCI
Finance's agents to solicit offers by certain institutions to purchase
Securities from the Company and/or SCI Finance pursuant to contracts providing
for payments and delivery on a future date. Institutions with which such
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
49
<PAGE> 89
others, but in all cases such institutions must be approved by the Company
and/or SCI Finance. The obligations of any purchaser under any such contract
will be subject to the condition that the purchase of the offered Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
LEGAL MATTERS
The validity of the Guarantee offered hereby will be passed upon for the Company
by Wachtell, Lipton, Rosen & Katz, New York, New York, special counsel for the
Company. The validity of the Securities (other than the Guarantee) offered
hereby will be passed upon for the Company and SCI Finance, respectively, by
Fulbright & Jaworski L.L.P., Houston, Texas, special Texas counsel for the
Company. Certain tax matters with respect to the LLC Preferred Securities will
be passed upon for the Company and SCI Finance by Miller & Chevalier, Chartered,
Washington, D.C., special tax counsel for the Company. Certain legal matters in
connection with the Securities will be passed upon for any underwriters by
Cahill Gordon & Reindel (a partnership including a professional corporation),
New York, New York.
EXPERTS
The consolidated financial statements of Service Corporation International at
December 31, 1993, and for the year then ended appearing in Service Corporation
International's Annual Report (Form 10-K) for the year ended December 31, 1993,
have been audited by Coopers & Lybrand L.L.P., independent auditors, and at
December 31, 1992, and for each of the two years in the period ended December
31, 1992, by Ernst & Young LLP, independent auditors, as set forth in their
respective reports thereon incorporated herein by reference in reliance upon
such reports given upon the authority of such firms as experts in accounting and
auditing.
50
<PAGE> 90
[SERVICE CORPORATION INTERNATIONAL LOGO]
<PAGE> 91
Filed Pursuant to Rule 424(b)(5)
Registration Nos. 033-56069; 033-56069-01
***************************************************************************
* *
* Information contained in this preliminary prospectus supplement is *
* subject to completion or amendment. A registration statement relating *
* to these securities has been filed with the Securities and Exchange *
* Commission. These securities may not be sold nor may offers to buy be *
* accepted prior to the time that a final prospectus supplement is *
* delivered. This preliminary prospectus supplement and the *
* accompanying prospectus shall not constitute an offer to sell or the *
* solicitation of an offer to buy nor shall there be any sale of these *
* securities in any State in which such offer, solicitation or sale *
* would be unlawful prior to registration or qualification under the *
* securities laws of any such State. *
* *
***************************************************************************
<TABLE>
<S> <C>
PROSPECTUS SUPPLEMENT SUBJECT TO COMPLETION
(To Prospectus dated November 1, 1994) NOVEMBER 3, 1994
</TABLE>
7,700,000 Shares
[SERVICE CORPORATION INTERNATIONAL LOGO]
SERVICE CORPORATION INTERNATIONAL
Common Stock
(par value $1 per share)
Of the 7,700,000 shares of Common Stock, $1 par value (the "Common Stock" or the
"SCI Common Stock"), of Service Corporation International, a Texas corporation
(the "Company"), offered hereby, 2,310,000 shares initially are being offered
outside the United States and Canada (the "International Offering") by the
International Managers (the "International Managers") and 5,390,000 shares
initially are being offered in the United States and Canada (the "United States
Offering" and, together with the International Offering, the "Offering" or the
"Common Stock Offering") by the U.S. Underwriters (the "U.S. Underwriters" and,
together with the International Managers, the "Underwriters"). The offering
price and underwriting discount for the International Offering and the United
States Offering are identical. See "Underwriting."
The Common Stock is listed on the New York Stock Exchange ("NYSE") under the
symbol "SRV." On November 2, 1994, the reported last sale price of the Common
Stock on the NYSE was $26.625 per share.
Concurrently with the Offering, SCI Finance LLC, a subsidiary of the Company, is
offering an aggregate of up to 3,450,000 $ Term Convertible Shares, Series
A ("TECONS"*), pursuant to a separate prospectus supplement. The TECONS will be
convertible into Common Stock initially at a conversion rate of shares of
Common Stock for each TECONS.
SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
<S> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------
Per Share $ $ $
- --------------------------------------------------------------------------------------------------------
Total(3) $ $ $
- --------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
See "Underwriting."
(2) Before deducting expenses payable by the Company estimated at $436,000.
(3) The Company has granted the U.S. Underwriters an option, exercisable within
30 days after the date of this Prospectus Supplement, to purchase up to an
additional 1,155,000 shares of Common Stock on the same terms as set forth
above, solely to cover over-allotments, if any. If such over-allotment option is
exercised in full, the total Price to Public, Underwriting Discount and Proceeds
to Company will be $ , $ and $ , respectively. See
"Underwriting."
The shares of Common Stock offered by this Prospectus Supplement are being
offered by the International Managers, subject to prior sale, when, as and if
delivered to and accepted by the International Managers, and subject to approval
of certain legal matters by Cahill Gordon & Reindel, counsel for the
Underwriters, and certain other conditions. It is expected that delivery of the
certificates representing the shares of Common Stock will be made against
payment therefor on or about December , 1994 at the offices of J.P. Morgan
Securities Inc., 60 Wall Street, New York, New York 10260.
- ---------------
* An application has been filed by J.P. Morgan Securities Inc. with the United
States Patent and Trademark Office for the registration of the TECONS service
mark.
J.P. MORGAN SECURITIES LTD.
MERRILL LYNCH INTERNATIONAL LIMITED
CAZENOVE & CO.
, 1994
<PAGE> 92
Artwork showing Major North American Markets Served indicated by Bullets on
Map of United States, Alaska and Hawaii.
Artwork showing Major International Markets Served indicated by Bullets on
Maps of United Kingdom and Australia.
S-2
<PAGE> 93
IN CONNECTION WITH THIS OFFERING, THE U.S. UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE COMMON STOCK,
THE TECONS AND THE COMPANY'S CONVERTIBLE DEBENTURES AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON
THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No person is authorized to give any information or to make any representations
not contained or incorporated by reference in this Prospectus Supplement or the
accompanying Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or any Underwriter. Neither this Prospectus Supplement nor the accompanying
Prospectus constitutes an offer to sell or a solicitation of an offer to buy any
securities in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
Page
<S> <C>
Prospectus Summary.................... S-4
The Company........................... S-6
Recent Developments................... S-11
Use of Proceeds....................... S-12
Price Range of Common Stock and
Dividends........................... S-13
Capitalization........................ S-14
Selected Financial Information........ S-15
Unaudited Pro Forma Combined Financial
Information......................... S-16
Management's Discussion and Analysis
of Results of Operations and
Financial Condition................. S-26
Certain Federal Income Tax
Consequences to Non-United States
Holders............................. S-35
Underwriting.......................... S-37
PROSPECTUS
Available Information................. 3
Incorporation of Certain Documents by
Reference........................... 4
The Company........................... 5
SCI Finance........................... 5
Certain Investment Considerations..... 6
Use of Proceeds....................... 6
Description of Debt Securities........ 7
Description of Preferred Stock........ 22
Description of Common Stock
Warrants............................ 25
Description of the LLC Preferred
Securities.......................... 28
Certain Federal Income Tax
Considerations Regarding the LLC
Preferred Securities................ 45
Plan of Distribution.................. 49
Legal Matters......................... 50
Experts............................... 50
</TABLE>
S-3
<PAGE> 94
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information included and incorporated by
reference in this Prospectus Supplement and the accompanying Prospectus. All
information in this Prospectus Supplement assumes that the Underwriters'
over-allotment option will not be exercised. See "Underwriting." References to
the Company or SCI herein should be read as referring to Service Corporation
International and its subsidiaries, except where the context indicates
otherwise.
THE COMPANY
Service Corporation International (the "Company" or "SCI") is the largest
provider of death care services and products in the world. Giving effect to the
recent acquisitions of Great Southern Group plc ("Great Southern" or "GSG") and
Plantsbrook Group plc ("Plantsbrook" or "PG"), as of September 30, 1994, SCI
owned and operated 1,431 funeral homes, 213 cemeteries (including 92 funeral
home and cemetery combinations) and 99 crematoria located in 40 U.S. states, the
District of Columbia, Australia, Canada and the United Kingdom. See "The
Company -- International Expansion and Recent Acquisitions."
SCI provides all professional services relating to funerals, burials and
cremations, including the use of funeral homes and motor vehicles, the
performance of cemetery interment services and the management and maintenance of
cemetery grounds. It sells caskets, burial vaults and garments, cemetery
interment rights, including mausoleum spaces and lawn crypts, stone and bronze
memorials, cremation receptacles and related merchandise. Additionally, SCI
operates 52 flower shops in connection with its funeral and cemetery operations.
SCI sells its services and products to client families both at and prior to the
time of need. In addition, SCI's finance subsidiary, Provident Services, Inc.
("Provident"), provides financing to independent funeral home and cemetery
operators.
SCI's strategy is to:
- Continue to expand through the acquisition and construction, both
domestically and internationally, of funeral homes, cemeteries and
funeral home/cemetery combinations in areas with demographics that SCI
believes to be favorable
- Increase the operating margins of its existing and acquired facilities by
having such facilities share resources pursuant to SCI's cluster strategy
(see "The Company -- Funeral Service Operations -- Cluster Strategy")
- Increase revenue per location through the merchandising of a broad line
of death care products and services
- Increase future volume and revenues through the sale of prearranged
funeral services
SCI's acquisition strategy focuses on acquiring premier funeral homes and
cemeteries in metropolitan areas with demographics that SCI believes to be
favorable and in which the cluster strategy can be applied. SCI typically
retains former owners and key managers of acquired businesses in an effort to
assure that service quality is maintained and that the business's reputation,
heritage and local relationships remain intact. Acquired funeral homes and
cemeteries retain their original trade names in substantially all cases.
During the nine months ended September 30, 1994, SCI acquired 637 funeral homes,
22 cemeteries and 22 crematoria worldwide for a total of approximately $703
million in cash, stock and other securities.
S-4
<PAGE> 95
THE OFFERING
<TABLE>
<S> <C>
Common Stock Offered:
United States Offering..................... 5,390,000 shares
International Offering..................... 2,310,000 shares
Total Offering..................... 7,700,000 shares
Common Stock Outstanding after
the Offering(1)............................ 93,871,965 shares
USE OF PROCEEDS.............................. The net proceeds of the Common Stock Offering
will be used to repay indebtedness as set
forth under "Use of Proceeds."
NYSE TRADING SYMBOL.......................... "SRV"
CONCURRENT OFFERINGS......................... Concurrently with the Common Stock Offering,
SCI Finance LLC, a subsidiary of the Company
("SCI Finance"), is offering (the "TECONS
Offering") an aggregate of 3,000,000 $
Term Convertible Shares, Series A (the
"TECONS") pursuant to a separate prospectus
supplement (excluding 450,000 TECONS subject
to an underwriters' over-allotment option).
The TECONS will be convertible into Common
Stock initially at a conversion rate of
shares of Common Stock for each TECONS. In
addition, the Company intends to consummate
an offering (the "Senior Notes Offering") of
$200 million aggregate principal amount of
Notes due 2004 pursuant to a separate
prospectus supplement concurrently with the
closing of the Common Stock Offering and the
TECONS Offering. The closing of the Common
Stock Offering is not contingent on the
closing of the TECONS Offering or the Senior
Notes Offering.
</TABLE>
- ---------------
(1) Based on shares outstanding as of September 30, 1994. Excludes an aggregate
of 14,769,486 shares of Common Stock issuable upon exercise of stock options
and conversion of convertible securities outstanding as of such date and
shares of Common Stock issuable upon conversion of up to 3,450,000
TECONS (assuming exercise in full of the underwriters' over-allotment
option) that may be sold in the TECONS Offering.
S-5
<PAGE> 96
THE COMPANY
SCI is the largest provider of death care services and products in the world.
Giving effect to the recent acquisitions of Great Southern and Plantsbrook, as
of September 30, 1994, SCI owned and operated 1,431 funeral homes, 213
cemeteries (including 92 funeral home and cemetery combinations) and 99
crematoria located in 40 U.S. states, the District of Columbia, Australia,
Canada and the United Kingdom. See "-- International Expansion and Recent
Acquisitions."
SCI provides all professional services relating to funerals, burials and
cremations, including the use of funeral homes and motor vehicles, the
performance of cemetery interment services and the management and maintenance of
cemetery grounds. It sells caskets, burial vaults and garments, cemetery
interment rights, including mausoleum spaces and lawn crypts, stone and bronze
memorials, cremation receptacles and related merchandise. Additionally, SCI
operates 52 flower shops in connection with its funeral and cemetery operations.
SCI sells its services and products to client families both at and prior to the
time of need. In addition, SCI's finance subsidiary, Provident, provides
financing to independent funeral home and cemetery operators.
SCI's strategy is to:
- Continue to expand through the acquisition and construction, both
domestically and internationally, of funeral homes, cemeteries and
funeral home/cemetery combinations in areas with demographics that SCI
believes to be favorable
- Increase the operating margins of its existing and acquired facilities by
having such facilities share resources pursuant to SCI's cluster strategy
- Increase revenue per location through the merchandising of a broad line
of death care products and services
- Increase future volume and revenues through the sale of prearranged
funeral services
SCI's acquisition strategy focuses on acquiring premier funeral homes and
cemeteries in metropolitan areas with demographics that SCI believes to be
favorable and in which the cluster strategy can be applied. SCI typically
retains former owners and key managers of acquired businesses in an effort to
assure that service quality is maintained and that the business's reputation,
heritage and local relationships remain intact. Acquired funeral homes and
cemeteries retain their original trade names in substantially all cases.
During the nine months ended September 30, 1994, SCI acquired 637 funeral homes,
22 cemeteries and 22 crematoria worldwide for a total of approximately $703
million in cash, stock and other securities.
FUNERAL SERVICE OPERATIONS
The funeral service operations consist of SCI's funeral homes, cemeteries and
related businesses. The operation is organized into six domestic regions and
three foreign regions (Australia, Canada and the United Kingdom), each of which
is under the direction of a regional president with substantial industry
experience. Canadian operations are carried out by a public company which is
approximately 70% owned by SCI. Local funeral home and cemetery managers, under
the direction of the regional presidents, receive support and resources from
SCI's headquarters in Houston, Texas and have substantial autonomy with respect
to the manner in which services are conducted.
Death Care Industry
The funeral industry is characterized by a large number of locally-owned,
independent operations. SCI believes that there are in excess of 22,000, 500,
1,200 and 4,000 funeral homes operating in the United States, Australia, Canada
and the United Kingdom, respectively. In order to compete successfully, SCI's
funeral homes must maintain competitive prices, attractive, well-maintained and
conveniently located facilities, a good reputation and high professional
standards. Heritage and tradition can provide an established funeral home or
cemetery with the opportunity for repeat business from client families.
Furthermore, an established firm can generate future volume and revenues by
successfully marketing prearranged, pre-funded funeral services.
S-6
<PAGE> 97
The cemetery industry is also characterized by a large number of locally-owned
independent operations. SCI's cemetery properties compete with other cemeteries
in the same general area. In order to compete successfully, SCI's cemeteries
must maintain competitive prices, attractive and well-maintained properties, a
good reputation, an effective sales force and high professional standards.
The Company and the two other largest North American death care companies
control in the aggregate approximately seven percent of the funeral homes and
approximately four percent of the commercial cemeteries in North America. Based
upon industry estimates, these three companies represented less than 15% of
total 1993 death care industry revenues.
Cluster Strategy
The majority of SCI's funeral homes and cemeteries are managed in groups called
clusters. Clusters are established primarily in metropolitan areas to take
advantage of operational efficiencies, including the sharing of service
personnel, vehicles, preparation services, clerical staff and certain building
facility costs. The cluster strategy recognizes that, as SCI adds operations to
a geographic area in which SCI already operates, it will achieve additional
operating efficiencies through cost-sharing. SCI has successfully implemented
the cluster strategy in its North American and Australian operations and intends
to implement the strategy in the United Kingdom. As of September 30, 1994, SCI
operated approximately 160 clusters in North America and Australia, which range
in size from two operations to 53 operations.
Pre-need Services
SCI is actively engaged in the marketing of prearranged funeral services. The
funds collected from prearranged funeral contracts are generally held in trust
or are used to purchase life insurance or annuity contracts. The principal
amount of a prearranged funeral contract will be received in cash by an SCI
funeral home and recorded as revenue by SCI at the time the funeral is
performed. Earnings on trust funds and increasing benefits under
insurance-funded contracts increase the amount of cash to be received and the
revenue to be recognized at the time the service is performed and historically
have allowed the Company to more than cover increases in the costs of providing
funeral services. At September 30, 1994, SCI's unfulfilled prearranged funeral
contracts amounted to approximately $1.4 billion. SCI's historical cancellation
rate for all prearranged funeral contracts approximates ten percent, for which a
reserve has been established.
Cemetery sales are often made pursuant to installment contracts providing for
monthly payments. The principal amount of these installment contracts is
recognized as revenue by SCI at the time of sale, net of an approximate eight
percent cancellation reserve that is based on historical results. A portion of
the proceeds from cemetery sales is generally required by law to be paid into
perpetual care trust funds. Earnings on perpetual care trust funds are used to
defray the maintenance cost of cemeteries. In addition, a portion of the
proceeds from the pre-need sale of cemetery merchandise may be required by law
to be paid into trust.
Financial Services
In 1988, SCI formed Provident to provide capital financing to independent
funeral home and cemetery operators. The majority of Provident's loans are made
to clients seeking to finance funeral home or cemetery acquisitions.
Provident had $243 million in loans outstanding at September 30, 1994. To date,
the amount and number of problem loans have been insignificant. Provident
obtains its funds primarily from SCI bank and commercial paper borrowings.
Provident is in competition with banks and other lending institutions, many of
which have substantially greater resources than Provident. However, Provident
believes that its knowledge of the death care industry provides it with the
ability to make more accurate assessments of funeral home and cemetery industry
loans, thereby providing Provident with a competitive advantage in making such
loans.
S-7
<PAGE> 98
Regulation
In April 1984, the U.S. Federal Trade Commission (the "FTC") comprehensive trade
regulation rule for the funeral industry became fully effective. The rule
contains minimum guidelines for funeral industry practices, requires extensive
price and other affirmative disclosures and imposes mandatory itemization of
funeral goods and services. A pre-existing consent order between SCI and the FTC
applicable to certain funeral practices of SCI was amended in 1984 to make the
substantive provisions of the consent order consistent with the funeral trade
regulation rule. From time to time in connection with acquisitions, SCI has
entered into consent orders with the FTC which have required SCI to dispose of
certain operations in order to proceed with the acquisitions and/or have limited
SCI's ability to make acquisitions in specified areas. The trade regulation rule
and the various consent orders have not had a material adverse effect on SCI's
operations.
ACQUISITION STRATEGY
Over the past several years, SCI has made a significant number of acquisitions.
SCI anticipates that it will continue to aggressively pursue acquisition
opportunities, as acquisitions form a critical part of SCI's growth strategy.
SCI will continue to seek acquisitions in geographic areas in which it presently
operates to expand established clusters, as well as acquisitions in new
geographic areas, including those outside North America, to develop new clusters
and to increase volume and revenue. To date SCI has been able to increase the
profitability of its acquired properties by absorbing a significant portion of
their costs, such as transportation and embalming, into SCI's clusters, and by
applying SCI's merchandising programs to the new operations. In addition,
acquisitions increase SCI's ability to benefit from the centralization of
systems, insurance and other financial services. SCI also believes that because
of its size it has been able to negotiate favorable supply arrangements with
volume discounts on supplies, including caskets, and that the terms of such
supply arrangements have enabled it to increase the profitability of its
acquired properties. There can be no assurance that SCI will continue to
successfully absorb future acquisitions, domestic or international, or realize
such cost savings.
SCI typically retains former owners and key managers of acquired businesses in
an effort to assure that service quality is maintained and that the business's
reputation, heritage and local relationships remain intact. Acquired funeral
homes and cemeteries retain their original trade names in substantially all
cases.
In evaluating specific properties for acquisition, SCI considers a number of
factors including demographics, location, reputation, heritage, physical size,
volume of business, profitability, available inventory, name recognition,
aesthetics, potential for development or expansion, competitive position,
pricing structure and quality of operating management. SCI follows a disciplined
approach based on specific financial criteria for determining acquisition prices
and intends to continue an active acquisition program in the future. There can
be no assurance that acquisition prospects will continue to be available in
attractive locations at prices acceptable to SCI.
INTERNATIONAL EXPANSION AND RECENT ACQUISITIONS
Based on its experience in applying its cluster strategy in the North American
market, SCI has targeted several foreign countries that it believes offer
similar opportunities. Effective July 1, 1993, SCI acquired Pine Grove Funeral
Group ("Pine Grove"), Australia's largest funeral and cremation services
provider, for approximately U.S.$70 million. This was SCI's first acquisition
outside of North America. Pine Grove's operations at year-end 1993 consisted of
60 funeral homes and eight cemetery/crematorium facilities located in
Australia's five major population centers of Adelaide, Brisbane, Melbourne,
Perth and Sydney. During its six months of operation in 1993 as an SCI company,
Pine Grove reported revenues of approximately U.S.$17 million. In March 1994,
SCI continued its Australian expansion by acquiring LePine Holdings Proprietary
Limited ("LePine"), a firm with over 100 years of funeral service history. The
LePine acquisition added 20 additional funeral homes in Melbourne with 1993
revenues of approximately U.S.$12 million.
In June 1994, SCI announced an unsolicited offer to acquire 100% of the
outstanding shares of Great Southern, which is among the leading funeral and
cremation services companies in the United Kingdom. Great Southern owns and
operates 157 funeral homes, 13 crematoria and two cemeteries in the United
Kingdom, primarily
S-8
<PAGE> 99
south of London. As of September 30, 1994, SCI owned, or had commitments to
acquire, in excess of 98% of Great Southern's voting shares. It is anticipated
that SCI will acquire the balance of the equity interests in Great Southern in
the coming months. The total purchase price for Great Southern is approximately
U.S.$192.8 million, including the assumption of approximately U.S.$14.8 million
of Great Southern debt. Great Southern reported revenues of approximately
U.S.$48.9 million for the year ended December 31, 1993. See "Unaudited Pro Forma
Combined Financial Information."
In September 1994, SCI announced its offer to acquire 100% of the outstanding
shares of Plantsbrook, which is the largest public funeral company in the United
Kingdom. Plantsbrook owns and operates 380 funeral homes in the United Kingdom,
primarily north of London. As of September 30, 1994, SCI owned, or had
commitments to acquire, in excess of 95% of Plantsbrook's voting shares. It is
anticipated that SCI will acquire the balance of the equity interests in
Plantsbrook in the coming months. The total purchase price for Plantsbrook is
approximately U.S.$312.7 million, including the assumption of approximately
U.S.$13.9 of Plantsbrook debt. Plantsbrook reported revenues of approximately
U.S.$77.7 million for the year ended December 31, 1993. See "Unaudited Pro Forma
Combined Financial Information." Great Southern and Plantsbrook together
accounted for approximately 15% of the total funerals performed in the United
Kingdom during 1993.
In the context of its international expansion, SCI believes that it can
favorably manage its worldwide effective tax rate by taking advantage of lower
tax rates and other foreign jurisdictional tax structuring opportunities. SCI
has implemented and intends to continue to explore the implementation of various
strategies to take advantage of such opportunities. There can be no assurance
that the implementation of such strategies will actually result in a reduction
of SCI's worldwide effective tax rate.
INDUSTRY TRENDS
Stability
Death rates have been fairly predictable, thereby lending stability to the death
care industry. For example, since 1980, the number of deaths in the United
States has increased at a compound rate of approximately one percent per year.
According to a 1993 report prepared by the U.S. Department of Commerce, Bureau
of the Census, the number of deaths in the United States is expected to increase
by approximately one percent per year between 1993 and 2000 and by 0.9% per year
from 2000 to 2020. Because the industry is relatively stable, non-cyclical and
fairly predictable, business failures are uncommon. As a result, ownership of
funeral home and cemetery businesses has traditionally passed from generation to
generation within a family. The death rate tends to be somewhat higher in the
winter months and funeral and cemetery operations generally experience a higher
volume of business during these months.
Consolidation
In recent years, the pace of acquisition activity in the death care industry has
increased. From the standpoint of individual owners, this appears to result
principally from family succession issues, a desire for liquidity and increasing
tax and estate planning complexities. From the standpoint of the large death
care providers, interest in acquisitions is driven by the benefits anticipated
to be derived from potential operating efficiencies, improved managerial control
and more effective strategic and financial planning. In recent years, several
large death care companies have expanded their operations significantly through
acquisitions. The increased interest in acquisitions of funeral homes and
cemeteries provides a source of potential liquidity that has not been readily
available to individual owners in the past.
Clustered Operations
During the last several years, larger death care companies have increasingly
begun to cluster their funeral home and cemetery operations. Clusters refer to
funeral homes and/or cemeteries that are grouped together in a geographic area.
Clusters provide cost savings to funeral homes and cemeteries through the
sharing of personnel, vehicles and other resources. In addition, the inclusion
of funeral homes and cemeteries in the same cluster provides opportunities for a
company to cross-sell the full range of death care services without
corresponding increases in incremental overhead expenses.
S-9
<PAGE> 100
Combined Operations
Combined operations, referring to funeral home and cemetery operations conducted
on a single site, have become increasingly popular as they provide cost savings
through shared resources and cross-selling opportunities. The ability to offer
the full range of products and services at one location tends to increase the
sales volume and revenues of both the funeral home and cemetery.
Pre-need Marketing
An increasing number of death care products and services are being sold prior to
the time of death (i.e., on a "pre-need" basis). SCI believes that consumers are
becoming more aware of the benefits of advanced planning, such as the financial
assurance and peace of mind achieved by establishing in advance a fixed price
and type of service, and the elimination of the emotional strain on family
members of making death care plans at the time of need.
Cremation
In recent years there has been steady, gradual growth in the number of families
in the United States that have chosen cremation as an alternative to traditional
methods of disposal. According to industry studies, cremations accounted for
approximately 20% of all dispositions of human remains in the United States in
1993. SCI's domestic operations perform substantially more cremations than the
national average. In 1993, just under 29% of all families served by SCI's North
American funeral homes selected the cremation alternative. SCI has a significant
number of operating locations in Florida and all along the west coast of North
America where the cremation alternative continues to gain acceptance. Based on
industry studies, the Company believes that cremations account for approximately
60% to 70% of all dispositions of human remains in Australia and in the United
Kingdom.
S-10
<PAGE> 101
RECENT DEVELOPMENTS
OPERATING RESULTS
On October 20, 1994, the Company announced its results for the three months
ended September 30, 1994. For such period, the Company reported net income of
$28.6 million, or $.33 per share on a primary basis, on revenues of $277.8
million and operating income of $66.3 million. For the comparable period in
1993, net income was $19.8 million, or $.23 per share on a primary basis,
revenues were $211.4 million and operating income was $47.5 million. For the
nine months ended September 30, 1994, the Company reported net income of $96.2
million, or $1.12 per share on a primary basis, on revenues of $801.9 million
and operating income of $207.7 million. For the comparable period in 1993,
before the cumulative effect of a January 1, 1993 accounting change, net income
was $73.4 million, or $.89 per share on a primary basis, revenues were $652.9
million and operating income was $162.0 million. Results for the three months
and nine months ended September 30, 1993 include a $3.2 million, or $.04 per
share, charge to reflect the retroactive impact of the Omnibus Budget
Reconciliation Act of 1993. Results for the three months and nine months ended
September 30, 1994 include approximately one month of results of Great Southern
and Plantsbrook.
INTERNATIONAL DEVELOPMENTS
The Company is considering the desirability and feasibility of an acquisition of
Pompes Funebres Generales S.A. ("PFG"), which operates approximately 150 funeral
homes or similar facilities and 750 other retail outlets in France and is the
largest operator of funeral homes in France. Although the Company has had, and
intends to continue, exploratory discussions with Lyonnaise des Eaux-Dumez S.A.
("Lyonnaise"), which controls approximately 66% of the stock of PFG, in regard
to various potential transactions, Lyonnaise has advised the Company that it has
no intention of selling its interest in PFG. The balance of the stock of PFG is
publicly traded, and the current total market capitalization of PFG is
approximately U.S. $185 million. For the year ended December 31, 1993, PFG
reported revenues of approximately U.S. $565 million and net income of
approximately U.S. $20 million. Subsequent to December 31, 1993, PFG sold its
46% interest in Plantsbrook to the Company. The results for PFG disclosed above
include all of the revenues of Plantsbrook during such period, and PFG's 46%
interest in Plantsbrook's net income. For the year ended December 31, 1993,
Plantsbrook reported revenues of approximately U.S. $77.7 million and net income
of approximately U.S. $12.3 million. The operating margins of the funeral
business in France historically have been substantially lower than the operating
margins in the funeral business in North America and in the United Kingdom. The
Company has retained an affiliate of J.P. Morgan Securities Inc. to assist it in
its evaluation of PFG. Particularly in light of the statement by Lyonnaise that
it has no intention of selling its interest in PFG, there can be no assurance
that any transaction involving the Company and PFG will ultimately occur or as
to the terms of any such transaction.
In October 1994, the Company announced that it had acquired approximately 8.5%
of the Class A Voting Shares and approximately 19.9% of the Class B Non-Voting
Shares of Arbor Memorial Services Inc. ("Arbor"). Arbor owns 44 cemeteries and
21 crematoria in Canada. The Company, which acquired its position in Arbor as a
strategic investment, is continuing to consider means to build its relationship
with Arbor and may continue to increase its investment in Arbor. Subsequent to
the announcement by the Company of its position in Arbor, the Company was
advised by the Arbor stockholder who owns a majority of the Class A Voting
Shares that he is not interested at this time in a transaction involving a sale
of control of Arbor. For the year ended October 31, 1993, Arbor reported
revenues of approximately U.S. $78.1 million and net income of approximately
U.S. $4.5 million.
The financial data contained herein with respect to PFG, Plantsbrook and Arbor
is derived from such companies' publicly available information. Such data was
not prepared in conformity with United States generally accepted accounting
principles, and the Company makes no representation with respect to the accuracy
of such data or the comparability of such data to financial data of the Company
or other U.S. companies in the death care industry.
S-11
<PAGE> 102
USE OF PROCEEDS
The net proceeds from the sale of the Common Stock offered hereby are estimated
to be $ million ($ million if the Underwriters' over-allotment option is
exercised in full). The Company will contribute $40 million of such proceeds to
SCI Finance ($46 million if the underwriters' over-allotment option in respect
of the TECONS is exercised in full). SCI Finance expects to obtain $150 million
from the TECONS Offering ($172.5 million if the underwriters' over-allotment
option in respect of the TECONS is exercised in full). Substantially all of the
aggregate proceeds so obtained by SCI Finance from the TECONS Offering and such
capital contribution from the Company will be loaned by SCI Finance to SCI
International Limited, a wholly-owned subsidiary of SCI ("SCI Limited"), which
will use such proceeds to repay a portion of the amounts outstanding under the
UK Facilities (as defined below). In connection with the acquisitions of Great
Southern and Plantsbrook, a subsidiary of SCI Limited obtained a L185 million
loan facility from Morgan Guaranty Trust Company of New York (the "Morgan
Facility") and a L100 million line of credit from Chemical Bank (the "Chemical
Facility" and, together with the Morgan Facility, the "UK Facilities"). SCI has
guaranteed the UK Facilities. As of September 30, 1994, and giving effect to the
exchange rate as of such date of approximately $1.58 to L1, approximately $210
million was outstanding under the Morgan Facility at a weighted average annual
interest rate of 5.61% with maturities ranging from five to 45 days, and
approximately $103 million was outstanding under the Chemical Facility at a
weighted average annual interest rate of 5.67% with maturities ranging from 17
to 28 days. It is anticipated that after giving effect to the application of the
proceeds of the Common Stock Offering and the TECONS Offering, an aggregate of
approximately $200 million will be outstanding under the UK Facilities, which
the Company intends to refinance with the proceeds from a note offering (the "UK
Note Offering") proposed to be made in the United Kingdom in early 1995. To the
extent that the proceeds of the UK Note Offering, together with the amount
loaned by SCI Finance to SCI Limited, are insufficient to repay in full the
amounts outstanding under the UK Facilities, the Company intends to use a
portion of the proceeds from the Common Stock Offering to effect such repayment.
The balance of the net proceeds from the sale of the Common Stock offered
hereby, together with the proceeds from the Senior Notes Offering, will be used
to reduce amounts outstanding under the Company's existing revolving credit
facilities (the "Revolving Credit Facilities") or to retire commercial paper
backed by such facilities or both. As of September 30, 1994, approximately $220
million was outstanding under the Revolving Credit Facilities at a weighted
average annual interest rate of 5.08% with maturities ranging from seven to 31
days, and approximately $327 million of commercial paper was outstanding backed
by such facilities at a weighted average annual interest rate of 4.99% with
maturities ranging from three to 33 days. The Company's borrowings under the
Revolving Credit Facilities and the proceeds from the sale of its commercial
paper are used primarily to fund the Company's acquisition program and to
provide financing to Provident.
Morgan Guaranty Trust Company of New York, an affiliate of J.P. Morgan
Securities Inc., is the lender under the Morgan Facility. The maximum amount
available under the Morgan Facility is approximately $292 million. The Company
intends to repay the Morgan Facility in full with a combination of proceeds from
the Common Stock Offering, the TECONS Offering and the UK Note Offering. See
"Underwriting."
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<PAGE> 103
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The SCI Common Stock is traded on the NYSE under the symbol "SRV." The following
table sets forth, on a per share basis for the periods shown, the range of high
and low reported sale prices of the SCI Common Stock on the NYSE as well as per
share dividends paid in such periods. SCI has declared 86 consecutive quarterly
dividends on the SCI Common Stock since it began paying dividends in 1974.
<TABLE>
<CAPTION>
-------------------------------------
SALE PRICE
HIGH LOW DIVIDENDS
------ ------ ---------
<S> <C> <C> <C>
Fiscal Year Ended December 31, 1992:
First Quarter $18.38 $15.63 $ .09
Second Quarter 18.75 16.13 .10
Third Quarter 18.50 16.38 .10
Fourth Quarter 18.50 16.75 .10
Fiscal Year Ended December 31, 1993:
First Quarter $21.63 $17.88 $ .10
Second Quarter 22.13 18.50 .10
Third Quarter 25.25 20.75 .10
Fourth Quarter 26.38 23.50 .10
Fiscal Year Ending December 31, 1994:
First Quarter $28.00 $24.63 $.105
Second Quarter 25.38 22.50 .105
Third Quarter 26.63 24.88 .105
Fourth Quarter (through November 2, 1994) 26.88 24.13 .105
</TABLE>
On November 2, 1994, the reported last sale price of the SCI Common Stock on the
NYSE was $26.625 per share.
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<PAGE> 104
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of the
Company at June 30, 1994 and on a pro forma basis giving effect to the
acquisitions of Great Southern and Plantsbrook and as adjusted for the Common
Stock Offering and the TECONS Offering (assuming in each case that the
underwriters' over-allotment option is not exercised), the Senior Notes Offering
and the application of the estimated net proceeds from such offerings.
<TABLE>
<CAPTION>
--------------------------
AT JUNE 30, 1994
PRO FORMA
AND
Thousands ACTUAL AS ADJUSTED
---------- -----------
<S> <C> <C>
CURRENT MATURITIES OF LONG-TERM DEBT $ 67,945 $ 68,715
========== ==========
LONG-TERM DEBT:
Indebtedness to banks under revolving credit agreements and
commercial paper $ 467,784 $ 206,670
Indebtedness under the UK Facilities -- 200,000
Notes offered in the Senior Notes Offering -- 200,000
Medium term notes 186,040 186,040
6.5% convertible subordinated debentures 172,500 172,500
7.875% debentures 150,000 150,000
Convertible debentures issued in connection with various
acquisitions 23,624 23,624
8% convertible debentures 16,074 16,074
Variable interest rate notes 10,624 10,624
Mortgage notes and other 91,294 104,397
---------- ----------
Total long-term debt 1,117,940 1,269,929
---------- ----------
CONVERTIBLE PREFERRED STOCK OF SUBSIDIARY -- 150,000
---------- ----------
STOCKHOLDERS' EQUITY:
Preferred stock, 1,000 shares authorized; no shares issued and
outstanding -- --
Common stock, 200,000 shares authorized; 86,028 shares issued
and outstanding; 93,728 shares issued and outstanding pro
forma and as adjusted 86,028 93,728
Capital in excess of par value 524,399 710,207
Retained earnings 334,376 334,376
Foreign translation adjustment (4,883) (4,883)
---------- ----------
Total stockholders' equity 939,920 1,133,428
---------- ----------
Total capitalization $2,057,860 $2,553,357
========== ==========
</TABLE>
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<PAGE> 105
SELECTED FINANCIAL INFORMATION
The selected consolidated financial data presented below for each of the five
years in the period ended December 31, 1993 have been derived from the
consolidated financial statements of the Company, which statements, in respect
of the year ended December 31, 1993, have been audited by Coopers & Lybrand,
independent public accountants, and in respect of the four years ended December
31, 1992, have been audited by Ernst & Young, independent public accountants.
The data at and for the six months ended June 30, 1994 and June 30, 1993 have
been derived from the unaudited consolidated financial statements of the Company
for such periods and, in the opinion of management, include all adjustments
(consisting only of normal recurring adjustments) necessary to state fairly the
information included therein in accordance with generally accepted accounting
principles for interim financial information. The data should be read in
conjunction with the related notes and other financial information included and
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1993 and the Company's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 1994, incorporated by reference herein.
Results for the six months ended June 30, 1994 are not necessarily indicative of
results for any other interim period or for the year as a whole.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
AT OR FOR THE SIX MONTHS
Thousands, except per share ENDED JUNE 30, AT OR FOR THE YEARS ENDED DECEMBER 31,(1)
amounts and Other Data 1994 1993 1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues $ 524,120 $ 441,420 $ 899,178 $ 772,477 $ 643,248 $ 563,156 $ 518,809
Costs and expenses (357,837) (308,029) (635,858) (550,422) (464,740) (413,236) (386,032)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Gross profit 166,283 133,391 263,320 222,055 178,508 149,920 132,777
General and administrative
expenses (24,871) (18,887) (43,706) (38,693) (35,448) (28,037) (28,423)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from operations 141,412 114,504 219,614 183,362 143,060 121,883 104,354
Interest expense (32,456) (28,888) (59,631) (53,902) (42,429) (36,095) (32,514)
Other income 4,686 2,665 13,509 9,876 8,241 13,644 12,778
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from continuing
operations before income taxes
and preferred dividend
requirements 113,642 88,281 173,492 139,336 108,872 99,432 84,618
Provision for income taxes (46,002) (34,700) (70,400) (52,800) (35,500) (35,900) (31,000)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from continuing
operations before cumulative
effect of change in accounting
principles and preferred
dividend requirements 67,640 53,581 103,092 86,536 73,372 63,532 53,618
Cumulative effect of change in
accounting principles (net of
income tax) -- (2,031) (2,031) -- -- -- --
Preferred dividend requirements -- -- -- -- -- (3,314) (6,897)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from continuing
operations available to common
stockholders $ 67,640 $ 51,550 $ 101,061 $ 86,536 $ 73,372 $ 60,218 $ 46,721
========== ========== ========== ========== ========== ========== ==========
Per share:
Primary
Income from continuing
operations before
cumulative effect of
change in accounting
principles $ .79 $ .66 $1.24 $1.13 $1.03 $ .85 $ .65
Cumulative effect of change
in accounting principles
(net of income tax) -- (.03) (.03) -- -- -- --
----- ----- ----- ----- ----- ----- -----
Income from continuing
operations available to
common stockholders $ .79 $ .63 $1.21 $1.13 $1.03 $ .85 $ .65
===== ===== ===== ===== ===== ===== =====
Fully diluted
Income from continuing
operations before
cumulative effect of
change in accounting
principles $ .74 $ .62 $1.19 $1.07 $1.00 $ .84 $ .65
Cumulative effect of change
in accounting principles
(net of income tax) -- (.02) (.02) -- -- -- --
----- ----- ----- ----- ----- ----- -----
Income from continuing
operations available to
common stockholders $ .74 $ .60 $1.17 $1.07 $1.00 $ .84 $ .65
===== ===== ===== ===== ===== ===== =====
Dividends $ .21 $ .20 $ .40 $ .39 $ .37 $ .37 $ .36
===== ===== ===== ===== ===== ===== =====
BALANCE SHEET DATA:
Working capital $ 135,103 $ 176,768 $ 171,901 $ 155,319 $ 156,383 $ 113,391 $ 120,682
Prearranged funeral contracts 1,298,558 1,157,377 1,244,866 -- -- -- --
Total assets 4,023,735 3,327,189 3,683,304 2,611,123 2,123,452 1,653,689 1,601,468
Long-term debt, excluding
current portion 1,117,940 927,544 1,062,222 980,029 786,685 577,378 485,669
Deferred prearranged funeral
contract revenues 1,375,843 1,191,105 1,263,407 -- -- -- --
Stockholders' equity 939,920 827,645 884,513 683,097 615,776 434,323 557,777
Total capitalization 2,057,860 1,755,189 1,946,735 1,663,126 1,402,461 1,011,701 1,043,446
OTHER DATA (END OF PERIOD):
Funeral homes 873 696 792 674 655 512 551
Cemeteries 204 176 192 176 163 145 126
</TABLE>
- ---------------
(1) The year ended December 31, 1993 reflects the changes in accounting
principles adopted January 1, 1993. The four years ended December 31, 1992
reflect results as historically reported.
S-15
<PAGE> 106
UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
In June 1994, the Company announced an unsolicited offer to acquire 100% of the
outstanding shares of GSG. As of September 30, 1994, the Company owned, or had
commitments to acquire, in excess of 98% of GSG's voting shares. The Company
anticipates that the total purchase price will approximate $192,777,000,
including the assumption of approximately $14,751,000 of existing debt. GSG is a
funeral provider in the United Kingdom ("UK") and owns 157 funeral homes, 13
crematoria and two cemeteries.
In September 1994, the Company announced its offer to acquire 100% of the
outstanding shares of PG. As of September 30, 1994, the Company owned, or had
commitments to acquire, in excess of 95% of PG's voting shares. The Company
anticipates that the total purchase price will approximate $312,690,000,
including the assumption of approximately $13,873,000 of existing debt. PG is a
funeral provider in the UK and owns 380 funeral homes.
In addition to the acquisitions of GSG and PG, during 1993 and the six months
ended June 30, 1994, the Company continued to acquire funeral and cemetery
operations in the United States, Australia and Canada. Excluding GSG and PG,
during such period the Company acquired 195 funeral homes and 33 cemeteries (the
"Other Acquired Companies") in 78 separate transactions for an aggregate
purchase price of approximately $395,000,000 in the form of combinations of
cash, SCI Common Stock, issued and assumed debt, convertible debentures and
retired loans receivable held by Provident.
The following unaudited pro forma combined balance sheet as of June 30, 1994 has
been prepared assuming the acquisitions by the Company of GSG and PG took place
on June 30, 1994 and the unaudited pro forma combined statements of income for
the year ended December 31, 1993 and the six months ended June 30, 1994 have
been prepared assuming the acquisitions by the Company of GSG, PG and the Other
Acquired Companies took place at the beginning of the respective periods. Such
acquisitions are being accounted for under the purchase method of accounting.
The historical revenues and expenses of the Other Acquired Companies represent
amounts recorded by those businesses for the period that they were not owned by
the Company during the year ended December 31, 1993 and the six months ended
June 30, 1994, respectively. The unaudited pro forma combined financial
information may not be indicative of results that would have actually resulted
if these transactions had occurred on the dates indicated or which may be
obtained in the future.
The acquisitions of GSG and PG are being financed on an interim basis
principally with borrowings under the UK Facilities, under which the Company may
borrow up to $438,900,000 (based on the exchange rate of one UK pound sterling
equivalent to $1.54 on June 30, 1994) with interest at a rate equal to UK pound
sterling LIBOR plus 20 basis points. The unaudited pro forma combined financial
information presented herein assumes the completion of the Common Stock
Offering, the TECONS Offering and the Senior Notes Offering on June 30, 1994
with respect to the unaudited pro forma combined balance sheet and at the
beginning of the respective periods with respect to the unaudited pro forma
combined statements of income. The proceeds from the TECONS Offering and a
portion of the net proceeds from the Common Stock Offering are assumed to be
used to repay $238,900,000 of indebtedness under the UK Facilities, and it is
further assumed that $200 million remains outstanding under the UK Facilities as
of the date of the unaudited pro forma combined balance sheet and at the
beginning of the respective periods with respect to the unaudited pro forma
combined statements of income. The remaining net proceeds from the Common Stock
Offering and all of the net proceeds from the Senior Notes Offering are assumed
to be used to repay amounts outstanding under the Revolving Credit Facilities or
to retire commercial paper or both (including $37,680,000 which was assumed to
have been borrowed to finance a portion of the purchase price of GSG and PG).
The historical financial statements of GSG and PG as of June 30, 1994, and for
the year and six months ended December 31, 1993 and June 30, 1994, respectively,
were prepared in UK pound sterling in accordance with the UK Companies Act of
1985 ("UK GAAP"). This information has been adjusted to present the historical
financial statements in accordance with United States generally accepted
accounting principles ("US GAAP") and translated into U.S. dollars at the
exchange rate in effect at the balance sheet date or the average exchange rate
for the respective statement of income periods presented. The Company has not
completed all appraisals and evaluations necessary to finalize GSG's and PG's
purchase price allocation, and accordingly, actual adjustments that reflect
appraisals and other evaluations of the purchased assets and assumed liabilities
may differ from the pro forma adjustments.
S-16
<PAGE> 107
SERVICE CORPORATION INTERNATIONAL
UNAUDITED PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1994
<TABLE>
<CAPTION>
--------------------------------------------------------
HISTORICAL PRO FORMA
THE COMBINED
Thousands COMPANY GSG AND PG ADJUSTMENTS TOTAL
---------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 38,638 $ 3,882 $ -- $ 42,520
Receivables, net of allowances 240,774 17,245 -- 258,019
Inventories 52,233 2,736 -- 54,969
Other 13,860 -- -- 13,860
---------- -------- --------- ----------
Total current assets 345,505 23,863 -- 369,368
Prearranged funeral contracts 1,298,558 -- 54,889(A) 1,353,447
Long-term receivables 538,014 -- -- 538,014
Cemetery property, at cost 473,244 6,735 232,301(B) 712,280
Property, plant and equipment, at cost (net) 666,092 87,749 4,066(C) 759,952
2,045(D)
Deferred charges and other assets 211,215 1,147 5,814(E) 218,176
Goodwill -- 137,038 (137,038)(F) --
Names and reputations (net) 491,107 -- 264,422(G) 755,529
---------- -------- --------- ----------
$4,023,735 $256,532 $ 426,499 $4,706,766
========== ======== ========= ==========
Liabilities & Stockholders' Equity
Current liabilities:
Accounts payable and accrued liabilities $ 121,520 $ 22,607 $ 15,015(H) $ 159,142
Income taxes 20,937 14,407 -- 35,344
Current maturities of long-term debt 67,945 9,332 (8,562)(I) 68,715
---------- -------- --------- ----------
Total current liabilities 210,402 46,346 6,453 263,201
Long-term debt 1,117,940 19,292 (6,189)(I) 1,269,929
200,000(J)
200,000(K)
37,680(L)
(298,794)(L)
Deferred income taxes 168,209 1,014 77,334(M) 246,557
Other liabilities 211,421 1,498 -- 212,919
Deferred prearranged funeral contract
revenues 1,375,843 -- 54,889(A) 1,430,732
Convertible preferred stock of subsidiary -- -- 150,000(N) 150,000
Stockholders' equity 939,920 188,382 (188,382)(O) 1,133,428
193,508(P)
---------- -------- --------- ----------
$4,023,735 $256,532 $ 426,499 $4,706,766
========== ======== ========= ==========
</TABLE>
S-17
<PAGE> 108
SERVICE CORPORATION INTERNATIONAL
NOTES TO THE UNAUDITED PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1994
Thousands, except per share amount
One UK pound sterling equivalent to $1.54, which represents the exchange rate on
June 30, 1994
(A) To record the amount of prearranged funeral contracts outstanding and the
related deferred prearranged funeral contract revenues in accordance with
the Company's accounting policies for GSG ($38,719) and PG ($16,170). These
prearranged funeral contracts were not afforded balance sheet recognition
by GSG or PG.
(B) To increase GSG's cemeteries and cremation scatter gardens to estimated
fair value.
(C) To record various assets acquired from J. D. Field & Sons Limited (the
former majority shareholder of GSG) included as part of the acquisition of
GSG, consisting primarily of real estate associated with certain funeral
operations of GSG.
(D) To increase funeral home land and buildings to estimated fair value for
GSG.
(E) To record the estimated costs and expenses to be incurred in connection
with the TECONS Offering and the Senior Notes Offering. A portion of the
net proceeds of the Common Stock Offering ($4,078) is being used to pay the
expenses of the TECONS Offering.
(F) To eliminate the previously recorded GSG and PG goodwill.
(G) To allocate the excess of the purchase price over the estimated fair value
of PG net assets acquired to names and reputations. The estimated fair
value of the GSG net assets acquired fully absorbed the GSG purchase price.
(H) To accrue costs anticipated to be incurred in connection with the
acquisitions of GSG ($7,315) and PG ($7,700).
(I) To record the repayment of GSG existing debt.
(J) To record the amount assumed to remain outstanding under the UK Facilities
($200,000) after the assumed repayment of a portion of the UK Facilities
($238,900) from the proceeds from the TECONS Offering ($150,000) and a
portion of the net proceeds from the Common Stock Offering ($88,900).
(K) To record the Notes being issued in the Senior Notes Offering.
(L) To reflect borrowings under the Revolving Credit Facilities and/or through
the issuance of commercial paper to finance a portion of the purchase price
of GSG and PG ($37,680) and the use of $100,530 of the net proceeds of the
Common Stock Offering and all of the $198,264 net proceeds of the Senior
Notes Offering to the repayment of amounts outstanding under the Revolving
Credit Facilities and/or to retire commercial paper.
(M) To provide for additional deferred income taxes for GSG resulting from
differences in the carrying values of net assets for financial statement
and tax purposes.
(N) To record the aggregate liquidation preference of the securities being
offered in the TECONS Offering.
(O) To eliminate the historical stockholders' equity of GSG ($37,505) and PG
($150,877).
(P) To reflect the net proceeds from the issuance of 7,700 shares in the Common
Stock Offering at an assumed public offering price of $26 per share.
S-18
<PAGE> 109
The following adjustments were made to the historical financials of GSG and PG
in order to restate historical financial statements to US GAAP:
<TABLE>
<CAPTION>
----------------------------------------------------------------------
AS REPORTED
HISTORIC AMOUNTS IN UNAUDITED
CONVERTED TO PRO FORMA
US DOLLARS IN ADJUSTMENTS TO COMBINED
UK GAAP US GAAP BALANCE SHEET
GSG PG GSG PG GSG PG
------- ------- ------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Property, plant and equipment $37,016 $60,616 $(8,351)(1) $ (1,532)(1) $28,665 $ 59,084
Goodwill -- -- 20,372(2) 116,666(2) 20,372 116,666
Deferred income taxes -- -- -- 1,014(3) -- 1,014
Stockholders' equity 25,484 36,757 12,021 114,120 37,505 150,877
</TABLE>
- ---------------
(1) To record the accumulated depreciation for GSG's and PG's buildings using a
50 year straight-line life. UK GAAP does not require the depreciation of
buildings.
(2) To reclass goodwill, net of accumulated amortization, which was previously
charged against equity as allowed by UK GAAP.
(3) To record certain deferred tax adjustments required by US GAAP.
S-19
<PAGE> 110
SERVICE CORPORATION INTERNATIONAL
UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1993
<TABLE>
<CAPTION>
---------------------------------------------------------------------------
HISTORICAL PRO FORMA
OTHER ACQUIRED
Thousands, except per share amounts THE COMPANY GSG AND PG COMPANIES ADJUSTMENTS COMBINED TOTAL
----------- ---------- -------------- ------------ --------------
<S> <C> <C> <C> <C> <C>
Revenues $ 899,178 $ 126,594 $110,214 $ 5,165(A) $1,141,151
Costs and expenses (635,858) (101,300) (95,534) (3,590)(A) (820,489)
11,842(B)
7,781(C)
(70)(D)
(6,611)(E)
3,598(F)
(437)(G)
(310)(H)
--------- --------- -------- -------- ----------
Gross profit 263,320 25,294 14,680 17,368 320,662
General and administrative expenses (43,706) -- -- -- (43,706)
--------- --------- -------- -------- ----------
Income from operations 219,614 25,294 14,680 17,368 276,956
Interest expense (59,631) (2,560) (3,541) (686)(A) (86,366)
(6,071)(B)
1,372(I)
(11,750)(J)
9,165(K)
(16,980)(L)
4,316(M)
Dividends on convertible preferred
stock of subsidiary -- -- -- (8,625)(N) (8,625)
Other income 13,509 313 -- -- 13,822
--------- --------- -------- -------- ----------
Income before income taxes 173,492 23,047 11,139 (11,891) 195,787
Provision for income taxes (70,400) (8,681) (4,167) 3,838(O) (79,410)
--------- --------- -------- -------- ----------
Income before cumulative effect
of change in accounting
principles $ 103,092 $ 14,366 $ 6,972 $ (8,053) $ 116,377
========= ========= ======== ======== ==========
Earnings per share:
Primary
Income before cumulative effect
of change in accounting
principles $1.24 $1.25
===== =====
Fully diluted
Income before cumulative effect
of change in accounting
principles $1.19 $1.20
===== =====
Primary weighted average number of
shares 83,372 1,680(P) 92,752
====== 7,700(Q) ======
Fully diluted weighted average number
of shares 93,878 2,299(P) 108,685
====== 7,700(Q) =======
4,808(R)
</TABLE>
S-20
<PAGE> 111
SERVICE CORPORATION INTERNATIONAL
NOTES TO THE UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1993
Thousands
One UK pound sterling equivalent to $1.493, which represents the average
exchange rate for the period
(A) To record the acquisition of 13 separate businesses acquired at various
dates by PG between January 1, 1993 and June 30, 1994 as if such
acquisitions had occurred on January 1, 1993. Internally generated funds
were used for the purchase of these businesses; however, for purposes of
the unaudited pro forma combined statement of income, imputed interest
expense, calculated on the purchase price, has been included at a rate of
6%, which approximates the Company's UK borrowing rate.
(B) To record an adjustment to costs and expenses for the Other Acquired
Companies based on results actually achieved by the Company for the periods
subsequent to acquisition in the amount of $14,432, offset in part by
additional costs and expenses of $2,590 resulting from the effect of
applying purchase accounting adjustments, primarily amortization and
depreciation.
Interest expense was added for debt, including convertible debentures,
issued in the purchase of the Other Acquired Companies at stated rates. In
addition, interest expense has been added for the cash portion of the
purchase price assumed to be borrowed by the Company at a weighted average
annual interest rate of 3.51%, which represented the weighted average
borrowing rate under the Revolving Credit Facilities and the Company's
commercial paper for the year ended December 31, 1993. At September 30,
1994, the borrowing rate under the Revolving Credit Facilities and
commercial paper was 5.03%.
(C) To eliminate corporate expenses, consisting primarily of duplicate
personnel expenses, related to the acquisitions of GSG and PG.
(D) To record the depreciation expense (based on a 50 year useful life and
straight-line depreciation) on GSG's funeral home buildings resulting from
the estimated change in fair value over historical cost. See Note (D) to
the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(E) To record the amortization of names and reputations (based on a 40 year
straight-line amortization) created from the acquisition of PG by the
Company. See Note (G) to the Notes to the Unaudited Pro Forma Combined
Balance Sheet.
(F) To eliminate the historical GSG and PG goodwill amortization expense.
(G) To record the cost of GSG's cemetery and cremation memorialization
interment rights sold.
(H) To record the estimated amortization expense expected to result from the
costs and expenses associated with the TECONS Offering and the Senior Notes
Offering. See Note (E) to the Notes to the Unaudited Pro Forma Combined
Balance Sheet.
(I) To eliminate the interest expense on GSG debt to be repaid by the Company.
(J) To record the estimated interest expense on the net amount borrowed under
the UK Facilities in connection with the acquisitions of GSG and PG as if
such amount had been borrowed on January 1, 1993. The estimated interest
expense reflects a rate equal to the average UK pound sterling LIBOR rate
(5.86%) plus 20 basis points for the year ended December 31, 1993. At
September 30, 1994, the UK pound sterling LIBOR rate was 5.88%. See Note
(J) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(K) To record the estimated reduction in interest expense resulting from the
expected repayment of $261,114 of indebtedness under the Revolving Credit
Facilities and/or the Company's commercial paper. The reduction was
calculated using a weighted average annual interest rate of 3.51%, which
represents the Company's weighted average borrowing rate under the
Revolving Credit Facilities and the Company's commercial paper for the year
ended December 31, 1993. See Note (L) to the Notes to the Unaudited Pro
Forma Combined Balance Sheet.
S-21
<PAGE> 112
(L) To record the estimated interest expense on the Notes being issued in the
Senior Notes Offering at an assumed annual interest rate of 8.49%. See Note
(K) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(M) To record the estimated reduction in net interest expense achieved from a
planned cross currency hedging transaction as if such transaction had been
entered into on January 1, 1993. This transaction will effectively convert
$272,500 of U.S. fixed rate indebtedness into floating rate UK pound
sterling indebtedness, raising SCI's total UK pound sterling exposure to
$472,500, which is comparable to the size of the acquisitions of GSG and
PG. Such transaction is assumed to allow the Company to receive fixed rate
interest on the $272,500 at a weighted average rate of 8.38% and pay UK
pound sterling LIBOR plus 41 basis points on $200,000 and pay UK pound
sterling LIBOR on $72,500.
(N) To record the estimated dividends on the securities being issued in the
TECONS Offering at an assumed annual dividend rate of 5.75%. See Note (N)
to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(O) To record the tax effect of the pro forma adjustments, including a $947 tax
benefit from the amortization of deferred taxes resulting from indexed
increases in the tax basis of UK assets.
(P) To give effect to the additional time period during which the SCI Common
Stock (in the case of the primary and fully diluted weighted average number
of shares) and convertible debt (in the case of the fully diluted weighted
average number of shares) issued during the period between January 1, 1993
and June 30, 1994 in respect to the acquisition of the Other Acquired
Companies would have been outstanding if all of such acquisitions had
occurred as of January 1, 1993.
(Q) To reflect the issuance of 7,700 shares in the Common Stock Offering. See
Note (P) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(R) To record the impact on the fully diluted weighted average number of shares
of SCI Common Stock of the securities being issued in the TECONS Offering.
The following adjustments were made to the historical financials of GSG and PG
in order to restate historical financial statements to US GAAP:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------
HISTORIC AMOUNTS AS REPORTED IN
CONVERTED TO US UNAUDITED
DOLLARS ADJUSTMENTS TO PRO FORMA COMBINED
IN UK GAAP US GAAP STATEMENT OF INCOME
GSG PG GSG PG GSG PG
-------- -------- ----- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Revenues $ 48,885 $ 77,709 $ -- $ -- $ 48,885 $ 77,709
Costs and expenses (38,234) (58,893) (272)(1) (303)(1) (39,078) (62,222)
(572)(2) (3,026)(2)
Interest expense and other (1,372) (875) -- -- (1,372) (875)
Provision for income taxes (3,228) (5,645) 90(1) 102(1) (3,138) (5,543)
-------- -------- ----- ------- -------- --------
Net income $ 6,051 $ 12,296 $(754) $(3,227) $ 5,297 $ 9,069
======== ======== ===== ======= ======== ========
</TABLE>
- ---------------
(1) To depreciate buildings straight-line over 50 years for GSG and PG. UK GAAP
does not require the depreciation of buildings.
(2) To amortize PG's historical goodwill balance straight-line over 40 years. UK
GAAP does not require the amortization of goodwill.
S-22
<PAGE> 113
SERVICE CORPORATION INTERNATIONAL
UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
SIX MONTHS ENDED JUNE 30, 1994
<TABLE>
<CAPTION>
-------------------------------------------------------------------
HISTORICAL PRO FORMA
OTHER
THE ACQUIRED COMBINED
Thousands, except per share amounts COMPANY GSG AND PG COMPANIES ADJUSTMENTS TOTAL
--------- ---------- --------- ----------- ---------
<S> <C> <C> <C> <C> <C>
Revenues $ 524,120 $ 66,925 $ 15,271 $ 1,146(A) $ 607,462
Costs and expenses (357,837) (52,737) (13,583) (770)(A) (422,047)
1,907(B)
2,818(C)
(35)(D)
(3,305)(E)
1,868(F)
(218)(G)
(155)(H)
--------- -------- -------- ------- ---------
Gross profit 166,283 14,188 1,688 3,256 185,415
General and administrative expenses (24,871) -- -- -- (24,871)
--------- -------- -------- ------- ---------
Income from operations 141,412 14,188 1,688 3,256 160,544
Interest expense (32,456) (1,023) (466) (329)(A) (41,337)
(1,228)(B)
581(I)
(5,215)(J)
5,131(K)
(8,490)(L)
2,158(M)
Dividends on convertible preferred
stock of subsidiary -- -- -- (4,313)(N) (4,313)
Other income 4,686 197 -- -- 4,883
--------- -------- -------- ------- ---------
Income before income taxes 113,642 13,362 1,222 (8,449) 119,777
Provision for income taxes (46,002) (4,878) (474) 2,928(O) (48,426)
--------- -------- -------- ------- ---------
Net income $ 67,640 $ 8,484 $ 748 $(5,521) $ 71,351
========= ======== ======== ======= =========
Earnings per share:
Primary $0.79 $0.76
===== =====
Fully diluted $0.74 $0.72
===== =====
Primary weighted average number of
shares 86,033 366(P) 94,099
====== 7,700(Q) ======
Fully diluted weighted average number
of shares 96,166 455(P) 109,129
====== 7,700(Q) =======
4,808(R)
</TABLE>
S-23
<PAGE> 114
SERVICE CORPORATION INTERNATIONAL
NOTES TO THE UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
SIX MONTHS ENDED JUNE 30, 1994
Thousands
One UK pound sterling equivalent to $1.5125, which represents the average
exchange rate for the period
(A) To record the acquisition of five separate businesses acquired at various
dates by PG between January 1, 1994 and June 30, 1994 as if such
acquisitions had occurred on January 1, 1994. Internally generated funds
were used for the purchase of these businesses; however, for purposes of
the unaudited pro forma combined statement of income, imputed interest
expense, calculated on the purchase price, has been included at a rate of
6%, which approximates the Company's UK borrowing rate.
(B) To record an adjustment to costs and expenses for the Other Acquired
Companies based on results actually achieved by the Company for the periods
subsequent to acquisition in the amount of $2,408, offset in part by
additional costs and expenses of $501 resulting from the effect of applying
purchase accounting adjustments, primarily amortization and depreciation.
Interest expense was added for debt, including convertible debentures,
issued in the purchase of the Other Acquired Companies at stated rates. In
addition, interest expense has been included for the cash portion of the
purchase price assumed to be borrowed by the Company at a weighted average
annual interest rate of 3.93%, which represented the weighted average
borrowing rate under the Revolving Credit Facilities and the Company's
commercial paper for the six months ended June 30, 1994. At September 30,
1994, the borrowing rate under the Revolving Credit Facilities and
commercial paper was 5.03%.
(C) To eliminate corporate expenses, consisting primarily of duplicate
personnel expenses, related to the acquisitions of GSG and PG.
(D) To record the depreciation expense (based on a 50 year useful life and
straight-line depreciation) on GSG's funeral home buildings resulting from
the estimated change in fair value over historical cost. See Note (D) to
the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(E) To record the amortization of names and reputations (based on a 40 year
straight-line amortization) created from the acquisition of PG by the
Company. See Note (G) to the Notes to the Unaudited Pro Forma Combined
Balance Sheet.
(F) To eliminate the historical GSG and PG goodwill amortization expense.
(G) To record the cost of GSG's cemetery and cremation memorialization
interment rights sold.
(H) To record the estimated amortization expense expected to result from the
costs and expenses associated with the TECONS Offering and the Senior Notes
Offering. See Note (E) to the Notes to the Unaudited Pro Forma Balance
Sheet.
(I) To eliminate the interest expense on GSG debt to be repaid by the Company.
(J) To record the estimated interest expense on the net amount borrowed under
the UK Facilities in connection with the acquisitions of GSG and PG as if
such amount had been borrowed on January 1, 1994. The estimated interest
expense reflects a rate equal to the average UK pound sterling LIBOR rate
(5.11%) plus 20 basis points for the six months ended June 30, 1994. At
September 30, 1994, the UK pound sterling LIBOR rate was 5.88%. See Note
(J) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(K) To record the estimated reduction in interest expense resulting from the
expected repayment of $261,114 of indebtedness under the Revolving Credit
Facilities and/or the Company's commercial paper. The reduction was
calculated using a weighted average annual interest rate of 3.93%, which
represents the Company's weighted average borrowing rate under the
Revolving Credit Facilities and the Company's commercial paper for the six
months ended June 30, 1994. See Note (L) to the Notes to the Unaudited Pro
Forma Combined Balance Sheet.
S-24
<PAGE> 115
(L) To record the estimated interest expense on the Notes being issued in the
Senior Notes Offering at an assumed annual interest rate of 8.49%. See Note
(K) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(M) To record the estimated reduction in net interest expense achieved from a
planned cross currency hedging transaction as if such transaction had been
entered into on January 1, 1994. This transaction will effectively convert
$272,500 of U.S. fixed rate indebtedness into floating rate UK pound
sterling indebtedness, raising SCI's total UK pound sterling exposure to
$472,500, which is comparable to the size of the acquisitions of GSG and
PG. Such transaction is assumed to allow the Company to receive fixed rate
interest on the $272,500 at a weighted average rate of 8.38% and pay UK
pound sterling LIBOR plus 41 basis points on $200,000 and pay UK pound
sterling LIBOR on $72,500.
(N) To record the estimated dividends on the securities being issued in the
TECONS Offering at an assumed annual dividend rate of 5.75%. See Note (N)
to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(O) To record the tax effect of the pro forma adjustments, including a $474 tax
benefit from the amortization of deferred taxes resulting from indexed
increases in the tax basis of UK assets.
(P) To give effect to the additional time period during which the SCI Common
Stock (in the case of the primary and fully diluted weighted average number
of shares) and convertible debt (in the case of the fully diluted weighted
average number of shares) issued during the period between January 1, 1994
and June 30, 1994 in respect to the acquisition of the Other Acquired
Companies would have been outstanding if all of such acquisitions had
occurred as of January 1, 1994.
(Q) To reflect the issuance of 7,700 shares in the Common Stock Offering. See
Note (P) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(R) To record the impact on the fully diluted weighted average number of shares
of SCI Common Stock of the securities being issued in the TECONS Offering.
The following adjustments were made to the historical financials of GSG and PG
in order to restate historical financial statements to US GAAP:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------
HISTORIC AMOUNTS
CONVERTED TO AS REPORTED IN UNAUDITED
US DOLLARS ADJUSTMENTS TO PRO FORMA COMBINED
IN UK GAAP US GAAP STATEMENT OF INCOME
GSG PG GSG PG GSG PG
-------- -------- ----- ------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
Revenues $ 25,986 $ 40,939 $ -- $ -- $ 25,986 $ 40,939
Costs and
expenses (19,625) (30,952) (138)(1) (154)(1) (20,053) (32,684)
(290)(2) (1,578)(2)
Interest expense
and other (581) (245) -- -- (581) (245)
Provision for
income taxes (1,906) (3,068) 45(1) 51(1) (1,861) (3,017)
-------- -------- ----- ------- -------- --------
Net income $ 3,874 $ 6,674 $(383) $(1,681) $ 3,491 $ 4,993
======== ======== ===== ======= ======== ========
</TABLE>
- ---------------
(1) To depreciate buildings straight-line over 50 years for GSG and PG. UK GAAP
does not require the depreciation of buildings.
(2) To amortize PG's historical goodwill balance straight-line over 40 years. UK
GAAP does not require the amortization of goodwill.
S-25
<PAGE> 116
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
OVERVIEW
The majority of the Company's funeral homes and cemeteries are managed in groups
called clusters. Clusters are primarily designated in metropolitan areas to take
advantage of operational efficiencies, including the sharing of operating
expenses such as service personnel, vehicles, preparation services, clerical
staff and certain building facility costs. At June 30, 1994, the Company has
approximately 166 clusters which ranged in size from two operations to 53
operations. There may be more than one cluster in a given metropolitan area,
depending upon the level and degree of shared costs.
The cluster management approach recognizes that, as the Company adds operations
to a geographic area that contains an existing Company presence, additional
operating efficiencies through cost sharing will be achieved and the Company
will also be in a better position to serve the population that resides within
the area served by the cluster. Funeral service and cemetery operations
primarily depend upon a long-term development of customer relationships and
loyalty. Over time, these client families may relocate within a cluster area
which may justify the relocation or addition of Company locations. The Company
attempts to satisfy this need for convenient locations by either acquiring
existing independent locations within the Company's cluster areas or
constructing satellite funeral homes (sometimes on Company-owned cemeteries)
while still maintaining the sharing of certain expenses within that cluster of
operations.
RESULTS OF OPERATIONS
Six Months Ended June 30, 1994 Compared to Six Months Ended June 30, 1993
Segment information for the Company's three lines of business are as follows:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------
SIX MONTHS ENDED JUNE 30, PERCENTAGE
Thousands 1994 1993 INCREASE INCREASE
-------- -------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Funeral $350,008 $297,800 $52,208 17.5%
Cemetery 164,776 136,304 28,472 20.9
Financial services 9,336 7,316 2,020 27.6
-------- -------- -------
524,120 441,420 82,700 18.7
-------- -------- -------
Costs and expenses:
Funeral 240,612 206,665 33,947 16.4
Cemetery 112,073 97,122 14,951 15.4
Financial services 5,152 4,242 910 21.5
-------- -------- -------
357,837 308,029 49,808 16.2
-------- -------- -------
Gross profit and
margin percentage:
Funeral 109,396 31.3% 91,135 30.6% 18,261 20.0
Cemetery 52,703 32.0 39,182 28.7 13,521 34.5
Financial services 4,184 44.8 3,074 42.0 1,110 36.1
-------- -------- -------
$166,283 31.7% $133,391 30.2% $32,892 24.7%
======== ======== =======
</TABLE>
S-26
<PAGE> 117
Funeral revenues were generated as follows:
<TABLE>
<CAPTION>
--------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $311,770 $279,927 $31,843 11.4%
New clusters* 23,565 1,347 22,218
-------- -------- -------
Total clusters 335,335 281,274 54,061 19.2%
Non-cluster and disposed operations 14,673 16,526 (1,853)
-------- -------- -------
Total funeral revenues $350,008 $297,800 $52,208 17.5%
======== ======== =======
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
The $31,843,000 increase in revenues at existing clusters was the result of
5,052 or 6.1% more funeral services performed and a $168 or 4.9% higher average
sales price. Included in this increase was $21,372,000 in revenues from
locations acquired since the beginning of 1993. It is anticipated that the
Company's revenue growth will primarily be generated from acquired operations
(added to existing clusters and the creation of new clusters) as well as higher
average sales prices.
During the six months ended June 30, 1994, the Company sold $108,749,000 of
prearranged funeral services compared to $70,142,000 for the same period in
1993. The revenues from prearranged funeral services are deferred and will be
recognized in funeral revenues in the periods that the funeral services are
performed. The current emphasis on sales of prearranged funerals is expected to
continue.
Funeral costs were incurred as follows:
<TABLE>
<CAPTION>
--------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $198,393 $180,646 $17,747 9.8%
New clusters* 16,683 868 15,815
-------- -------- -------
Total clusters 215,076 181,514 33,562 18.5%
Non-cluster and disposed operations 11,390 12,334 (944)
Administrative overhead 14,146 12,817 1,329
-------- -------- -------
Total funeral costs $240,612 $206,665 $33,947 16.4%
======== ======== =======
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
Total funeral gross profit margin increased to 31.3% compared to 30.6% recorded
last year. This gross profit margin improvement was achieved despite the large
number of acquisitions, added to both existing and new clusters, which have
occurred since the beginning of 1993. Typically, acquisitions will temporarily
exhibit slightly lower gross profit margins than the Company's existing
locations. Acquisitions since the beginning of 1993 accounted for $15,750,000 of
the existing cluster cost increase. The improved gross profit margin for
existing clusters reflects the increased revenues discussed above, without a
corresponding percentage increase in costs at other funeral homes included in
existing clusters. Administrative overhead costs related to funeral operations
decreased to 4.0% of revenues in 1994 compared to 4.3% of revenues in 1993.
S-27
<PAGE> 118
Cemetery revenues were generated as follows:
<TABLE>
<CAPTION>
------------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $152,634 $130,671 $21,963 16.8%
New clusters* 6,599 -- 6,599
-------- -------- -------
Total clusters 159,233 130,671 28,562 21.9%
Non-cluster and disposed operations 5,543 5,633 (90)
-------- -------- -------
Total cemetery revenues $164,776 $136,304 $28,472 20.9%
======== ======== =======
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
Revenues for the existing clusters increased primarily due to increased pre-need
and at need sales of merchandise and services. Included in the existing cluster
increase was $9,367,000 in increased revenues from cemeteries acquired since the
beginning of 1993.
Cemetery costs were incurred as follows:
<TABLE>
<CAPTION>
-------------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
-------- ------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $ 97,135 $85,560 $11,575 13.5%
New clusters* 3,182 -- 3,182
-------- ------- -------
Total clusters 100,317 85,560 14,757 17.2%
Non-cluster and disposed operations 3,535 4,092 (557)
Administrative overhead 8,221 7,470 751
-------- ------- -------
Total cemetery costs $112,073 $97,122 $14,951 15.4%
======== ======= =======
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
Costs at existing clusters increased $11,575,000 due primarily to an increase of
$6,626,000 from cemeteries acquired since the beginning of 1993. Costs from
other existing cluster cemeteries increased $4,949,000 due to the costs
associated with the increased revenues discussed above. The cemetery gross
margin of 32.0% this year compared to 28.7% last year reflects the strong
revenue growth as well as continued cost control, particularly in selling
expenses. Administrative overhead costs have decreased to 5.0% of revenues this
year compared to 5.5% last year.
Financial service revenues and costs have increased as a result of increased
loans outstanding. Improved interest rate spreads have increased the gross
margin percentage to 44.8% this year from 42.0% last year. The average
outstanding loan portfolio during the current year was $246,408,000 with an
average interest rate spread of 3.45% compared to $204,462,000 and 3.21%,
respectively, last year.
General and administrative expenses increased by $5,984,000 or 31.7%. Of the
increase, $3,503,000 is attributable to personnel expenses primarily in the form
of restricted stock costs. Professional fees have increased $2,455,000 in the
current year primarily from legal costs associated with the ongoing informal
Securities and Exchange Commission investigation of the Company. As a percentage
of revenues, general and administrative expenses were 4.7% this year compared to
4.3% last year.
Interest expense, which excludes the amount incurred through financial service
operations, increased $3,568,000 or 12.4% during the current year primarily due
to the issuance of $150,000,000 of 7.875% debentures in
S-28
<PAGE> 119
February 1993 and increased borrowings under the Company's lines of credit and
commercial paper primarily used to fund the Company's acquisition program.
The $2,021,000 increase in other income results primarily from the sale of
excess real estate and additional equity income on corporate investments in
1994.
The provision for income taxes has increased to 40.5% from 39.3% last year
primarily due to the August 1993 increase in the federal corporate tax rate.
Year to Year Comparisons -- Change in Accounting Principles
Effective January 1, 1993, the Company changed its method of accounting for
prearranged funeral service contracts and cemetery sales. For a more detailed
discussion of these changes, see Note 2 to the consolidated financial statements
in Item 8 of the Form 10-K for the year ended December 31, 1993 (the "Form
10-K"). The cumulative effect of these changes resulted in an after tax charge
of $2,031,000 or $.03 per share on January 1, 1993. Generally these changes will
result in reduced funeral revenues and funeral operating income, at least in the
near future, due to the deferral of previously recognized prearranged funeral
service trust fund income until performance of the specific funeral.
Additionally, these changes will generally result in higher cemetery revenues
and cemetery operating income because all cemetery sales and costs are recorded
in current income. See Item 3, Legal Proceedings, in the Form 10-K for
information regarding an informal investigation by the Securities and Exchange
Commission and the Company's Form 8-K dated October 18, 1994.
For purposes of management's discussion and analysis of results of operations
and financial condition, all comparisons to 1992 and 1991 reflect the pro forma
effects of applying the new accounting principles as if the changes had occurred
on December 31, 1990. The following table presents the pro forma results for the
years ended 1992 and 1991:
<TABLE>
<CAPTION>
-------------------------------------
YEARS ENDED DECEMBER 31,
UNAUDITED
AS REPORTED PRO FORMA
Thousands 1993 1992 1991
----------- --------- ---------
<S> <C> <C> <C>
Revenues:
Funeral $ 603,099 $ 532,914 $ 430,565
Cemetery 280,421 217,100 194,434
Financial services 15,658 10,741 14,823
--------- --------- ---------
899,178 760,755 639,822
Costs and expenses:
Funeral (426,008) (379,223) (307,090)
Cemetery (200,682) (164,188) (149,822)
Financial services (9,168) (6,632) (10,666)
--------- --------- ---------
(635,858) (550,043) (467,578)
--------- --------- ---------
Gross profit 263,320 210,712 172,244
General and administrative expenses (43,706) (38,693) (35,448)
Interest expense (59,631) (53,902) (42,429)
Other income 13,509 9,876 8,241
--------- --------- ---------
Income before income taxes 173,492 127,993 102,608
Income taxes (70,400) (48,500) (33,200)
--------- --------- ---------
Income before cumulative effect of change in accounting
principles $ 103,092 $ 79,493 $ 69,408
========= ========= =========
</TABLE>
S-29
<PAGE> 120
Year Ended December 31, 1993 Compared to Year Ended December 31, 1992
In 1993, total funeral revenues increased $70,185,000 or 13.2% over 1992.
Funeral revenues were as follows:
<TABLE>
<CAPTION>
--------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
-------- -------- ---------- ----------
(THOUSANDS)
<S> <C> <C> <C> <C>
Existing clusters $548,771 497,092 $51,679 10.4%
New clusters** 28,376 2,259 26,117
-------- ------- -------
Total clusters 577,147 499,351 77,796 15.6%
Non-cluster and disposed operations 25,952 33,563 (7,611)
-------- ------- -------
Total funeral revenues $603,099 532,914 $70,185 13.2%
======== ======= =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
The $51,679,000 increase in revenues at existing clusters was the result of
10,193 or 6.9% more funeral services performed and a $111 or 3.3% higher average
sales price. Included in this increase were $29,281,000 in revenues from
locations acquired during the two year period. Overall, funeral services
performed are expected to grow slowly for the near future and it is expected
that the Company's revenue growth will primarily be generated from acquired
operations (added to existing clusters and the creation of new clusters) as well
as higher average sales prices.
During 1993, the Company sold $159,000,000 of prearranged funeral services
compared to $119,000,000 for 1992. These prearranged funeral services are
deferred and will be reflected in funeral revenues in the periods that the
funeral services are performed. An increased emphasis on sales of prearranged
funerals is expected to continue.
Total funeral costs increased $46,785,000 or 12.3% in 1993. Funeral costs were
as follows:
<TABLE>
<CAPTION>
---------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
-------- -------- ---------- ----------
(THOUSANDS)
<S> <C> <C> <C> <C>
Existing clusters $357,118 $324,893 $32,225 9.9%
New clusters** 21,571 1,755 19,816
-------- -------- -------
Total clusters 378,689 326,648 52,041 15.9%
Non-cluster and disposed operations 18,838 27,654 (8,816)
Administrative overhead 28,481 24,921 3,560
-------- -------- -------
Total funeral costs $426,008 $379,223 $46,785 12.3%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
Existing cluster funeral costs, expressed as a percentage of revenues, were
65.1%, which was slightly lower than the 65.4% recorded in 1992. This gross
profit margin improvement was achieved despite the large number of acquisitions
which occurred during the two year period. Typically, acquisitions will
temporarily exhibit slightly lower gross profit margins than the Company's
existing locations. These acquisitions accounted for $19,548,000 of the existing
cluster cost increase. The improved gross profit margin reflects increased
revenues, reduced personnel costs (the largest funeral expense item) and
facility costs at other funeral homes included in existing clusters. As a
percentage of revenues, administrative overhead costs related to funeral
operations remained at 4.7% in both years.
S-30
<PAGE> 121
Total cemetery revenues increased $63,321,000 or 29.2% over 1992. Cemetery
revenues were as follows:
<TABLE>
<CAPTION>
------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $254,343 $202,709 $51,634 25.5%
New clusters** 14,818 946 13,872
-------- -------- -------
Total clusters 269,161 203,655 65,506 32.2%
Non-cluster and disposed operations 11,260 13,445 (2,185)
-------- -------- -------
Total cemetery revenues $280,421 $217,100 $63,321 29.2%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
Revenues for the existing clusters increased due to increased at-need and
pre-need sales volumes, higher average at-need and pre-need contract prices and
additional earnings from cemetery perpetual care and merchandise and service
trust funds. Included in the existing cluster increase was $40,059,000 in
increased revenues from cemeteries acquired during the two year period.
Total cemetery costs increased $36,494,000 or 22.2% over the prior year.
Cemetery costs were as follows:
<TABLE>
<CAPTION>
------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
-------- -------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $167,635 $141,178 $26,457 18.7%
New clusters** 8,414 892 7,522
-------- -------- -------
Total clusters 176,049 142,070 33,979 23.9%
Non-cluster and disposed operations 8,038 10,437 (2,399)
Administrative overhead 16,595 11,681 4,914
-------- -------- -------
Total cemetery costs $200,682 $164,188 $36,494 22.2%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
The entire increase in existing cluster costs resulted from increased costs at
cemeteries acquired during the two year period. There was no increase in costs
at other cemeteries included in existing clusters despite the sales increase
discussed above. Cost containment in the areas of selling and maintenance
expenses contributed to the lack of increase. Cemetery costs, expressed as a
percentage of revenues, at existing clusters decreased to 65.9% this year from
69.6% in 1992. The Company believes that the gross margins realized in 1993 are
achievable in the future through continued aggressive sales as well as cost
containment programs. Administrative overhead costs have increased slightly,
when expressed as a percentage of revenues, to 5.9% currently from 5.4% in 1992.
Financial service revenues and costs have increased in 1993 as a result of
increased loans outstanding and improved interest rate spreads. The average
outstanding loan portfolio during 1993 was $215,726,000 with an average interest
rate spread of 3.3% compared to $143,773,000 and 2.6%, respectively, in 1992.
Financial services are provided through Provident which is a major source of
funding to independent funeral home and cemetery operators. Unlike a commercial
bank, Provident does not have access to low-cost deposit funds so its net
interest margin is lower because it borrows money at market rates. Additionally,
Provident does not incur as much administrative costs as does a commercial bank.
Through Provident's relationships with these borrowers, the Company derives the
benefit of developing a continuing relationship with these entities. The credit
risk for this type of leading is considered minimal to the Company.
S-31
<PAGE> 122
General and administrative expenses increased by $5,013,000 or 13.0%. The
increase is primarily attributable to compensation expense in connection with
performance-based vesting of restricted stock grants to Company management.
Vesting is based on a formula primarily tied to earnings per share growth.
Interest expense, which excludes the amount incurred through financial service
operations, increased $5,729,000 or 10.6% during 1993. In February 1993, the
Company issued $150,000,000 of 7.875% debentures due in 2013. The proceeds were
primarily used to repay existing credit agreement borrowings. Also in February
1993, the Company called the $100,000,000 6.5% convertible debentures originally
issued in 1986. Holders of the debentures converted $97,164,000 into Company
common stock at $17.33 per share (5,607,000 shares) with the remaining
$2,836,000 redeemed in cash. Additionally, interest expense was reduced by
decreased average interest rates on amounts borrowed under the Company's credit
agreements during 1993 compared to 1992.
Other income includes the recognition of gains from the sale of excess real
estate and existing businesses during both periods.
The provision for income taxes has increased to 40.6% from 37.9% during 1992
primarily due to the enactment of the Omnibus Budget Reconciliation Act of 1993
in August 1993 which increased corporate tax rates retroactively to January 1,
1993. As a result of the new law, the Company's 1993 tax expense increased
$2,431,000 from increased deferred income taxes and $1,700,000 from the higher
corporate tax rate on 1993 earnings ($.05 earnings per share).
Year Ended December 31, 1992 Compared to Year Ended December 31, 1991
In 1992, total funeral revenues increased $102,349,000 or 23.8% over 1991.
Funeral revenues were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, PERCENTAGE
Thousands 1992* 1991* INCREASE INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $456,617 $390,807 $65,810 16.8%
New clusters** 43,377 11,190 32,187
-------- -------- --------
Total clusters 499,994 401,997 97,997 24.4%
Non-cluster and disposed operations 32,920 28,568 4,352
-------- -------- --------
Total funeral revenues $532,914 $430,565 $102,349 23.8%
======== ======== ========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
The $65,810,000 increase in revenues at existing clusters, which included an
increase of $59,598,000 from acquired operations, was the result of 13,857 or
11.4% more funeral services performed and a $157 or 4.9% higher average sales
price.
Total funeral costs increased $72,133,000 or 23.5% in 1992. Funeral costs were
as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, PERCENTAGE
Thousands 1992* 1991* INCREASE INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $292,331 $254,186 $38,145 15.0%
New clusters** 34,972 9,063 25,909
-------- -------- -------
Total clusters 327,303 263,249 64,054 24.3%
Non-cluster and disposed operations 26,999 26,032 967
Administrative overhead 24,921 17,809 7,112
-------- -------- -------
Total funeral costs $379,223 $307,090 $72,133 23.5%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
S-32
<PAGE> 123
All of the increase in costs at existing clusters was the result of funeral
homes acquired during the two year period. For other funeral homes included in
existing clusters, personnel costs increased primarily as the result of higher
benefit costs. This was offset by decreased merchandise costs, reflecting more
effective purchasing arrangements with vendors and an additional year-end
discount from the revision of a merchandise purchasing contract with one vendor.
Discounts should continue through 1993 based on the provisions of the revised
contract as well as with agreements with other vendors. Facility costs also
declined when compared to 1991.
Total cemetery revenues increased $22,666,000 or 11.7% over 1991. Cemetery
revenues were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1992* 1991* (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $186,051 $171,273 $14,778 8.6%
New clusters** 13,823 5,308 8,515
-------- -------- -------
Total clusters 199,874 176,581 23,293 13.2%
Non-cluster and disposed operations 17,226 17,853 (627)
-------- -------- -------
Total cemetery revenues $217,100 $194,434 $22,666 11.7%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
Revenues at existing clusters, which include an increase of $11,937,000 from
acquired operations, increased a total of $14,778,000 or 8.6% due to increased
at-need sales, higher average at-need and pre-need contract prices partially
offset by a slight decline in the number of pre-need contracts sold.
Total cemetery costs increased $14,366,000 or 9.6% over 1991. Cemetery costs
were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1992* 1991* (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $127,626 $116,711 $10,915 9.4%
New clusters** 10,502 4,618 5,884
-------- -------- -------
Total clusters 138,128 121,329 16,799 13.8%
Non-cluster and disposed operations 14,379 13,315 1,064
Administrative overhead 11,681 15,178 (3,497)
-------- -------- -------
Total cemetery costs $164,188 $149,822 $14,366 9.6%
======== ======== =======
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
Costs at existing clusters, which include an increase of $9,667,000 from
acquired operations, increased a total of $10,915,000 or 9.4%. Merchandise and
repair and maintenance expenses increased at other cemeteries included in
existing clusters. Cemetery overhead costs declined in 1992 due to the closing
of the San Diego administrative office in late 1991. These costs were either
eliminated or transferred to general and administrative expense at the Houston
corporate offices.
Financial service revenues and costs decreased during 1992 as a result of a
decrease in the average outstanding loan portfolio and borrowed amounts for
Provident in 1992. Gross profit remained level for both years. For the year
1992, Provident's outstanding loan portfolio averaged $143,773,000 with an
average interest rate spread of 2.6% compared to $148,652,000 and 2.4%,
respectively, in 1991.
General and administrative expenses increased in 1992 by $3,245,000 or 9.2%.
Personnel costs, including the cost of restricted stock grants and other
employee benefit accruals, increased $2,141,000. The remainder of the
S-33
<PAGE> 124
increase resulted primarily from higher facility and administrative costs. A
portion of the additional costs resulted from the relocation of cemetery
administrative offices from San Diego to Houston.
Interest expense, which excludes the amount incurred through financial service
operations, increased $11,473,000 or 27.0% during 1992. In October 1991, the
Company issued $172,500,000 of 6.5% convertible debentures due in 2001. Also
contributing to the increase was the interest on debt assumed and not refinanced
from various 1991 acquisitions. Lower interest rates in 1992 helped to offset
increases in interest expense from increased average amounts borrowed under the
Company's credit agreements.
Other income increased during 1992 due primarily to the recognition of two gains
in 1992. One resulted from the collection of a note receivable that had
previously been written off, and the other from the sale of an equity
investment. Partially offsetting the increase was less income on corporate
investments. Both years include pretax gains associated with the disposition of
certain excess funeral and cemetery real property.
During the third quarter of 1991, certain Internal Revenue Service audits of the
Company were settled and resulted in the recognition of $4,800,000 or $.07 per
share of income tax benefits.
Financial Condition at June 30, 1994
The Company's acquisition of funeral homes and cemeteries and capital
expenditures, including major improvements to existing properties, continue to
require significant amounts of cash. Funds generated from earnings of existing
funeral and cemetery operations, together with unused lines of credit or other
available borrowings, are expected to be sufficient for the Company to continue
its current acquisition and operating policies. At August 5, 1994, the Company
had available approximately $298,000,000 of borrowing capacity under its various
credit lines.
In addition to the sources of cash from operations and credit lines, the Company
has 12,149,000 shares of common stock, $70,227,000 of guarantees of promissory
notes and $74,382,000 of convertible debentures registered with the Commission
to be used exclusively for future acquisitions.
Current maturities of long-term debt include $48,660,000 of medium-term notes
that mature in the first half of 1995. The Company's total debt to
capitalization ratio increased slightly to 55.8% from 55.1% at December 31,
1993.
Hedging Transactions (see Note 5 to Form 10-Q for the quarter ended June 30,
1994)
The Company has entered into hedging transactions to reduce its exposure to
adverse fluctuations in interest and foreign exchange rates. While the hedging
transactions are subject to risk of loss from change in interest rates and
exchange rates, these losses would generally be offset by gains on the exposures
being hedged. The Company has realized US $1,093,000 losses on contracts entered
into as hedge transactions since the beginning of 1993. These realized losses
were deferred and are being amortized into income over periods ranging from
eight months to five years.
At June 30, 1994, the Company had outstanding foreign currency and interest rate
swaps in the notional amounts of Australian dollar $142,715,000 and US
$75,000,000. As of June 30, 1994, net unrealized losses before taxes from these
hedging agreements were estimated to be US $3,800,000 (which is the estimated
cost to terminate these hedging agreements). In the opinion of management, such
losses were offset by the increased value of the exposures being hedged.
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<PAGE> 125
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
TO NON-UNITED STATES HOLDERS
The following is a general discussion of certain United States federal income
and estate tax consequences of the ownership and disposition of the Common Stock
by non-United States holders, but does not purport to be a complete analysis of
all the potential tax considerations relating thereto.
As used herein, "non-United States holder" means a corporation, individual or
partnership that is, as to the United States, a foreign corporation, a
non-resident alien individual or a foreign partnership, and it means any estate
or trust which is not subject to United States taxation on income from sources
without the United States that is not effectively connected with the conduct of
a trade or business within the United States.
This discussion is based upon the Code, Treasury Regulations, United States
Internal Revenue Service ("IRS") rulings and judicial decisions now in effect,
all of which are subject to change (possibly with retroactive effect) or
different interpretations. This discussion does not purport to deal with all
aspects of federal income and estate taxation that may be relevant to a
particular non-United States holder's decision to purchase the Common Stock.
ALL PROSPECTIVE NON-UNITED STATES PURCHASERS OF THE COMMON STOCK ARE ADVISED TO
CONSULT THEIR OWN TAX ADVISORS REGARDING THE UNITED STATES FEDERAL, STATE, LOCAL
AND NON-UNITED STATES TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE COMMON STOCK.
DIVIDENDS
Dividends paid to a non-United States holder of the Common Stock will be subject
to withholding of United States federal income tax at a 30% rate or such lower
rate as may be specified by an applicable income tax treaty. (Under currently
effective Treasury Regulations, dividends paid to an address in a foreign
country are presumed to be paid to a resident of such country in determining the
applicability of a treaty for such purposes. Proposed Treasury Regulations, if
finally adopted, would require a non-United States holder to file certain forms
to obtain the benefit of any applicable tax treaty providing for a lower rate of
withholding tax on dividends. Such forms would contain the holder's name and
address and an official statement by the competent authority in the foreign
country (as designated in the applicable tax treaty) attesting to the holder's
status as a resident thereof.) However, except as may be otherwise provided in
an applicable income tax treaty, a non-United States holder will be taxed at
ordinary federal income tax rates (on a net income basis) on dividends that are
effectively connected with the conduct of a trade or business of such non-United
States holder within the United States and will not be subject to the
withholding tax described above. If such non-United States holder is a foreign
corporation, it may also be subject to a United States branch profits tax at a
30% rate or such lower rate as may be specified by an applicable income tax
treaty.
A non-United States holder that is eligible for a reduced rate of United States
withholding tax pursuant to an income tax treaty may obtain a refund of any
excess amounts withheld by filing an appropriate claim for refund with the IRS.
DISPOSITION OF STOCK
Non-United States holders generally will not be subject to United States federal
income tax in respect of gain recognized on a disposition of the Common Stock
unless (i) the gain is effectively connected with a trade or business conducted
by the non-United States holder within the United States (in which case the
branch profits tax described under "Dividends" above may also apply if the
holder is a foreign corporation), (ii) in the case of a non-United States holder
who is a non-resident alien individual and holds the Common Stock as a capital
asset, such holder is present in the United States for 183 or more days in the
taxable year of the disposition and certain other conditions are met, (iii) the
non-United States holder is subject to tax pursuant to the provisions of the
United States federal tax law applicable to certain United States expatriates or
(iv) the Company is or has been a "United States real property holding
corporation" for federal income tax purposes and, in the event
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<PAGE> 126
that the Common Stock is considered "regularly traded," the non-United States
holder held directly or indirectly at any time during the five-year period
ending on the date of disposition more than five percent of the Common Stock.
Generally, this last rule for stock in United States real property holding
corporations takes precedence over relief provided by tax treaties.
FEDERAL ESTATE TAXES
Common Stock that is owned or treated as being owned at the time of death by a
non-United States holder who is a non-resident alien individual will be included
in such holder's gross estate for United States federal estate tax purposes,
unless an applicable estate tax treaty provides otherwise.
INFORMATION REPORTING REQUIREMENTS AND BACKUP WITHHOLDING
Generally, dividends paid to non-United States holders outside the United States
that are subject to the 30% or treaty-reduced rate of withholding tax will be
exempt from backup withholding tax. As a general matter, information reporting
and backup withholding will not apply to a payment by a foreign office of a
foreign broker of the proceeds of a sale of Common Stock effected outside the
United States. However, information reporting requirements (but not backup
withholding) will apply to a payment by a foreign office of a broker of the
proceeds of a sale of Common Stock effected outside the United States where that
broker (i) is a United States person, (ii) is a foreign person that derives 50%
or more of its gross income for certain periods from the conduct of a trade or
business in the United States or (iii) is a "controlled foreign corporation" as
defined in the Code (generally, a foreign corporation controlled by United
States shareholders), unless the broker has documentary evidence in its records
that the holder is a non-United States holder and certain conditions are met or
the holder otherwise establishes an exemption. Payment by a United States office
of a broker of the proceeds of a sale of Common Stock is subject to both backup
withholding (generally at a rate of 31%) and information reporting unless the
holder certifies to the payor in the manner required as to its non-United States
status under penalties of perjury or otherwise establishes an exemption.
A non-United States holder may obtain a refund of any amounts withheld under the
backup withholding rules by filing an appropriate claim for refund with the IRS.
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<PAGE> 127
UNDERWRITING
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated the date hereof (the "Underwriting Agreement"), the Underwriters
named below have severally agreed to purchase, and the Company has agreed to
sell to them, severally, the respective number of shares of Common Stock set
forth opposite their names below:
<TABLE>
<CAPTION>
---------
NUMBER OF
SHARES
---------
<S> <C>
U.S. UNDERWRITERS:
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
CS First Boston Corporation
Dean Witter Reynolds Inc.
---------
Subtotal 5,390,000
---------
INTERNATIONAL MANAGERS:
J.P. Morgan Securities Ltd.
Merrill Lynch International Limited
Cazenove & Co.
---------
Subtotal 2,310,000
---------
Total 7,700,000
=========
</TABLE>
The Underwriting Agreement provides that the obligations of the several
Underwriters to pay for and accept delivery of the shares of Common Stock
offered hereby are subject to the approval of certain legal matters by their
counsel and to certain other conditions. The Underwriters are committed to take
and pay for all of the shares of Common Stock offered hereby (other than those
covered by the over-allotment option described below) if any are taken. The
closing of the United States Offering is a condition to the closing of the
International Offering, and the closing of the International Offering is a
condition to the closing of the United States Offering.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, each U.S. Underwriter has represented and agreed that, with certain
exceptions set forth below, (a) it is not purchasing any shares of Common Stock
being sold by it (the "U.S. Shares") for the account of anyone other than a
United States or Canadian Person and (b) it has not offered or sold, and will
not offer or sell, directly or indirectly, any U.S. Shares or distribute any
prospectus relating to the U.S. Shares outside the United States or Canada or to
anyone other than a United States or Canadian Person. Pursuant to the Agreement
Between U.S. and International Underwriting Syndicates, each International
Manager has represented and agreed that, with certain exceptions set forth
below, (a) it is not purchasing any shares of Common Stock being sold by it (the
"International Shares") for the account of any United States or Canadian Person
and (b) it has not offered or sold, and will not offer or sell, directly or
indirectly, any International Shares or distribute any prospectus relating to
the International Shares within the United States or Canada or to any United
States or Canadian Person. The foregoing limitations do not apply to
stabilization transactions or to certain other transactions specified in the
Agreement Between U.S. and International Underwriting Syndicates. As used
herein, "United States or Canadian Person" means any national or resident of the
United States or Canada or any corporation, pension, profit-sharing or other
trust or other entity organized under the laws of the United States or Canada or
of any political subdivision thereof (other than a branch located outside the
United States and Canada of any United States or Canadian Person) and includes
any United States or Canadian branch of a person who is otherwise not a United
States or Canadian Person.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, sales may be made between the U.S. Underwriters and the
International Managers of any number of shares of Common Stock to be purchased
pursuant to the Underwriting Agreement as may be mutually agreed. The per share
price and Shares
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<PAGE> 128
or distribute any prospectus relating to the U.S. Shares outside the United
States or Canada or to anyone other than a United States or Canadian Person.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, each International Manager has represented and agreed that, with
certain exceptions set forth below, (a) it is not purchasing any shares of
Common Stock being sold by it (the "International Shares") for the account of
any United States or Canadian Person and (b) it has not offered or sold, and
will not offer or sell, directly or indirectly, any International Shares or
distribute any prospectus relating to the International Shares within the United
States or Canada or to any United States or Canadian Person. The foregoing
limitations do not apply to stabilization transactions or to certain other
transactions specified in the Agreement Between U.S. and International
Underwriting Syndicates. As used herein, "United States or Canadian Person"
means any national or resident of the United States or Canada or any
corporation, pension, profit-sharing or other trust or other entity organized
under the laws of the United States or Canada or of any political subdivision
thereof (other than a branch located outside the United States and Canada of any
United States or Canadian Person) and includes any United States or Canadian
branch of a person who is otherwise not a United States or Canadian Person.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, sales may be made between the U.S. Underwriters and the
International Managers of any number of shares of Common Stock to be purchased
pursuant to the Underwriting Agreement as may be mutually agreed. The per share
price and currency of settlement of any shares of Common Stock so sold shall be
the per share public offering price set forth on the cover page hereof, in
United States dollars, less an amount not greater than the per share amount of
the concession to dealers set forth below.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, each U.S. Underwriter has represented that it has not offered or
sold, and agreed not to offer or sell, any shares of Common Stock, directly or
indirectly, in Canada in contravention of the securities laws of Canada or any
province or territory thereof and has represented that any offer of shares of
Common Stock in Canada will be made only pursuant to an exemption from the
requirement to file a prospectus in the province or territory of Canada in which
such offer is made. Each U.S. Underwriter has further agreed to send to any
dealer who purchases from it any shares of Common Stock a notice stating in
substance that, by purchasing such shares of Common Stock, such dealer
represents and agrees that it has not offered or sold, and will not offer or
sell, directly or indirectly, any of such shares of Common Stock in Canada or
to, or for the benefit of, any resident of Canada in contravention of the
securities laws of Canada or any province or territory thereof and that any
offer of shares of Common Stock in Canada will be made only pursuant to an
exemption from the requirement to file a prospectus in the province of Canada in
which such offer is made, and that such dealer will deliver to any other dealer
to whom it sells any such shares of Common Stock a notice containing
substantially the same statement as is contained in this sentence.
Pursuant to the Agreement Between U.S. and International Underwriting
Syndicates, each International Manager has represented and agreed that (i) it
has not offered or sold and will not offer or sell in the United Kingdom, by
means of any document, any shares of Common Stock, other than to a person whose
ordinary business it is to buy or sell shares or debentures, whether as
principal or agent, or in circumstances which do not constitute an offer to the
public within the meaning of the Companies Act of 1985, (ii) it has complied and
will comply with all applicable provisions of the Financial Services Act 1986
with respect to anything done by it in relation to the shares of Common Stock
in, from or otherwise involving the United Kingdom, and (iii) it has only issued
or passed on and will only issue or pass on to any person in the United Kingdom
any document received by it in connection with the sale of the shares of Common
Stock if that person is of a kind described in Article 9(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1988 or is a
person to whom the document may otherwise lawfully be issued or passed on.
The Underwriters initially propose to offer the shares of Common Stock in part
directly to the public at the public offering price set forth on the cover page
of this Prospectus Supplement and in part to certain dealers at such price less
a concession not in excess of $ per share. The Underwriters may allow, and
such dealers may reallow, a concession not in excess of $ per share to
certain other dealers. After the initial public offering of the Common Stock
offered hereby, the public offering price and such concessions may be changed.
S-38
<PAGE> 129
Pursuant to the Underwriting Agreement, the Company has granted to the U.S.
Underwriters an option, exercisable for 30 days from the date of this Prospectus
Supplement, to purchase up to an additional 1,155,000 shares of Common Stock at
the public offering price set forth on the cover page hereof less the
underwriting discount. The U.S. Underwriters may exercise such option to
purchase solely for the purpose of covering over-allotments, if any, made in
connection with the sale of the shares of Common Stock offered hereby. To the
extent such option is exercised, each U.S. Underwriter will become obligated,
subject to certain conditions, to purchase approximately the same percentage of
such additional shares of Common Stock as the number set forth next to such U.S.
Underwriter's name in the preceding table bears to the total number of shares of
Common Stock offered hereby.
In the Underwriting Agreement, the Company has agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
federal securities laws, or to contribute to payments which the Underwriters may
be required to make in respect thereof.
J.P. Morgan Securities Inc. ("JPMS") and Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") are acting as the underwriters in connection with
the TECONS Offering, for which they will receive customary underwriting
compensation. In addition, JPMS, Merrill Lynch, CS First Boston Corporation
("First Boston") and Dean Witter Reynolds Inc. will act as the underwriters in
connection with the Senior Notes Offering, for which they will receive customary
underwriting compensation. As of October 5, 1994, JPMS and certain of its
affiliates beneficially owned (as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended) approximately 12.09% of the outstanding Common
Stock, such figure representing beneficial ownership in both a fiduciary
capacity on behalf of third parties and for their own accounts. As of such date,
JPMS and such affiliates owned the economic interest in less than 1.00% of the
outstanding Common Stock. JPMS and its affiliates, Merrill Lynch, First Boston
and Cazenove & Co. from time to time provide commercial banking and/or
investment banking services to the Company for which they receive customary fees
and expense reimbursement.
Upon application of the net proceeds of the Offering made hereby as described
under "Use of Proceeds," an affiliate of JPMS may receive in excess of 10% of
the net proceeds of the Offering. Pursuant to paragraph 8 of Article III,
Section 44 of the Rules of Fair Practice of the National Association of
Securities Dealers, Inc. (the "NASD"), such receipt by an affiliate of JPMS of
such proceeds requires that the Offering be made in compliance with certain of
the requirements of Schedule E ("Schedule E") to the Bylaws of the NASD. In this
regard, the Offering is being made pursuant to the provisions of such paragraph
8. Pursuant thereto, the Offering will comply with Section 3(c) of Schedule E.
The Company and each of its executive officers have agreed not to effect any
offer, sale or other disposition of any shares of Common Stock or any securities
convertible into or exchangeable for any shares of Common Stock (except, in the
case of the Company, for the shares of Common Stock offered hereby, the issuance
of shares of Common Stock upon conversion of the TECONS and upon conversion of
the Company's presently outstanding convertible securities and pursuant to the
Company's existing employee benefit plans as in effect on the date hereof and,
subject to certain limitations, in connection with acquisitions) for a period of
90 days after the date of this Prospectus Supplement, without the prior consent
of JPMS.
S-39
<PAGE> 130
***************************************************************************
* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
PROSPECTUS SUBJECT TO COMPLETION
NOVEMBER 1, 1994
$1,000,000,000
SERVICE CORPORATION INTERNATIONAL
Debt Securities, Common Stock, Preferred Stock and
Common Stock Warrants
SCI FINANCE LLC
LLC Preferred Securities
Service Corporation International (the "Company" or "SCI") may from time to time
offer (i) Debt Securities consisting of debentures, notes and/or other unsecured
evidences of indebtedness, (ii) Common Stock, par value $1.00 per share ("Common
Stock" or "SCI Common Stock"), along with Series C Junior Participating
Preferred Stock Purchase Rights, (iii) Preferred Stock, par value $1.00 per
share ("Preferred Stock"), and (iv) Common Stock Warrants. SCI Finance LLC ("SCI
Finance") may from time to time offer LLC Preferred Securities in one or more
series with the payment of dividends and the payments on liquidation or
redemption of the LLC Preferred Securities guaranteed on a subordinated basis by
SCI to the extent described herein or in the accompanying Prospectus Supplement.
See "Description of the LLC Preferred Securities -- Description of the
Guarantee" and "-- Description of the Loans" for a description of various
contractual backup undertakings of SCI with respect to the LLC Preferred
Securities. The Debt Securities, the Common Stock, along with Series C Junior
Participating Preferred Stock Purchase Rights, the Preferred Stock, the Common
Stock Warrants and the LLC Preferred Securities are collectively referred to as
the "Securities," and will have an aggregate initial offering price of up to
$1,000,000,000 (or the equivalent thereof if Debt Securities are denominated in
a currency other than U.S. dollars or in currency units). The Securities may be
offered as separate series, in amounts, at prices and on terms to be determined
at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the Securities
in respect of which this Prospectus is being delivered the terms of such
Securities, including, where applicable, (i) in the case of Debt Securities, the
specific title (including whether senior, senior subordinated or subordinated
and whether or not convertible), aggregate principal amount, denominations
(which may be in U.S. dollars, in any other currency or in composite
currencies), maturity (which may be fixed or extendible), interest rate, if any
(which may be fixed or variable), and time of payment of any interest, any terms
for redemption at the option of the Company or the holder, any terms for sinking
fund payments, any class or classes of stock into which the Debt Securities are
convertible and other conversion terms, if any, any covenants or events of
default that are in addition to or different from those described herein, any
listing on a securities exchange, the initial public offering price and any
other terms in connection with the offering and sale of such Debt Securities,
(ii) in the case of Common Stock, the initial public offering price, (iii) in
the case of Preferred Stock, the specific title, any dividend, liquidation and
other rights, any class or classes of stock into which the Preferred Stock is
convertible and other conversion terms, if any, any redemption provisions, any
sinking fund provisions, any covenants, any listing on a securities exchange,
the initial public offering price and any other terms in connection with the
offering and sale of such Preferred Stock, (iv) in the case of Common Stock
Warrants, the duration, exercise price, initial public offering price and any
other terms in connection with the offering and sale of such Common Stock
Warrants and (v) in the case of the LLC Preferred Securities, any dividend,
conversion and other rights, any listing on a securities exchange, the initial
public offering price and any other terms in connection with the offering and
sale of such LLC Preferred Securities.
The Company and SCI Finance may sell Securities to or through underwriters, and
also may sell Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased by
underwriters and the compensation, if any, of such underwriters or agents.
SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
, 1994
<PAGE> 131
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS, IF ANY, MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE
SECURITIES AND, IF THE SECURITIES ARE CONVERTIBLE, THE OUTSTANDING CLASS OR
CLASSES OF STOCK OF THE COMPANY INTO WHICH THEY ARE CONVERTIBLE, AT LEVELS ABOVE
THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED ON ANY SECURITIES EXCHANGE ON WHICH SUCH SECURITIES MAY BE LISTED, IN
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus or
the accompanying Prospectus Supplement and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Company or any underwriter, dealer or agent. Neither this Prospectus nor the
accompanying Prospectus Supplement constitutes an offer to sell or a
solicitation of an offer to buy Securities in any jurisdiction in which such
offer or solicitation is not authorized or in which the person making such offer
or solicitation is not qualified to do so or to any person to whom it is
unlawful to make such offer or solicitation.
In this Prospectus, references to "dollar" and "$" are to United States dollars,
and the terms "United States" and "U.S." mean the United States of America, its
states, its territories, its possessions and all areas subject to its
jurisdiction.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................ 3
Incorporation of Certain Documents by
Reference.......................... 4
The Company.......................... 5
SCI Finance.......................... 5
Certain Investment Considerations.... 6
Use of Proceeds...................... 6
Description of Debt Securities....... 7
Description of Preferred Stock....... 22
Description of Common Stock
Warrants........................... 25
Description of the LLC Preferred
Securities......................... 28
Certain Federal Income Tax
Considerations Regarding the LLC
Preferred Securities............... 45
Plan of Distribution................. 49
Legal Matters........................ 50
Experts.............................. 50
</TABLE>
2
<PAGE> 132
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at 450 Fifth Street N.W., Washington,
D.C. 20549; 500 West Madison Street, Chicago, Illinois 60661; and 7 World Trade
Center, New York, New York 10048. Copies of such material can also be obtained
from the public reference section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, such material can be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
Additional information regarding the Company, SCI Finance and the Securities is
contained in the Registration Statement of which this Prospectus is a part and
the exhibits relating thereto (the "Registration Statement") filed with the
Commission under the Securities Act of 1933, as amended (the "Act"). For further
information pertaining to the Company, SCI Finance and the Securities reference
is made to the Registration Statement, which may be inspected without charge at
the office of the Commission at 450 Fifth Street N.W., Washington, D.C. 20549,
and copies thereof may be obtained from the Commission at prescribed rates. This
Prospectus and the accompanying Prospectus Supplement do not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission.
Statements made in this Prospectus and the accompanying Prospectus Supplement as
to the contents of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made to
the exhibit for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such reference.
No separate financial statements of SCI Finance have been included or
incorporated by reference herein. SCI Finance and SCI do not consider that such
financial statements would be material to holders of the LLC Preferred
Securities, because SCI Finance is a newly-organized special purpose entity, has
no operating history and no independent operations and is not engaged in any
activity other than the issuance of its preferred interests (the "LLC Preferred
Shares"), such as the LLC Preferred Securities, and its common interests (the
"LLC Common Shares"), and the lending of 99% of the proceeds thereof to SCI
International Limited, a wholly-owned subsidiary of SCI ("SCI Limited"), and
because SCI will guarantee SCI Finance's obligations under the terms of the LLC
Preferred Securities to the extent set forth herein. See "SCI Finance." SCI
Finance is a limited liability company organized under the laws of the State of
Texas and will be managed by SCI, as manager (sometimes referred to herein as
the "Manager"). SCI owns all of the LLC Common Shares, which are
nontransferable.
3
<PAGE> 133
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by SCI with the Commission are
incorporated herein by reference:
1. SCI's Annual Report on Form 10-K for the fiscal year ended December 31, 1993,
as amended on Form 10-K/A, dated April 5, 1994;
2. SCI's Quarterly Reports on Form 10-Q for the quarterly periods ended March
31, 1994 and June 30, 1994;
3. The Company's Current Report on Form 8-K dated October 18, 1994;
4. Description of the Company's capital stock set forth under the caption
"Item 1. Description of Securities to be Registered -- Capital Stock" in the
Form 8, Amendment No. 3, dated September 15, 1982, to the Company's Registration
Statement on Form 8-A; and
5. Description of the Company's preferred share purchase rights contained in the
Company's Registration Statement on Form 8-A dated July 26, 1988, as amended by
Amendment No. 1 thereto filed under cover of Form 8 and dated May 11, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus and to be part hereof from the date
of filing such documents. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed to constitute a part hereof except as so modified or
superseded.
The Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the request of any such person, a copy of any or
all of the documents which are incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests should be directed to Service
Corporation International, 1929 Allen Parkway, Houston, Texas 77019, Attention:
James M. Shelger, Senior Vice President, General Counsel and Secretary (Tel.
(713) 522-5141).
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THE COMPANY
The Company is the largest provider of funeral and cemetery services and
products in the world. Giving effect to the recent acquisitions of Great
Southern Group plc ("GSG") and Plantsbrook Group plc ("PG"), as of September 30,
1994, the Company owned and operated 1,431 funeral homes, 213 cemeteries
(including 92 funeral home and cemetery combinations) and 99 crematoria located
in 40 U.S. states, the District of Columbia, Australia, Canada and the United
Kingdom.
The Company was incorporated in Texas on July 5, 1962. The Company's principal
executive offices are located at 1929 Allen Parkway, Houston, Texas 77019,
telephone number (713) 522-5141. As used herein, unless the context indicates
otherwise, the terms "Company" and "SCI" refer to the Company and its
subsidiaries.
SCI FINANCE
SCI Finance is a limited liability company organized under the laws of the State
of Texas. The address of SCI Finance's principal executive offices is 1929 Allen
Parkway, Houston, Texas 77019. SCI owns all of the LLC Common Shares, which are
nontransferable. SCI Finance exists for the sole purpose of issuing LLC Common
Shares and LLC Preferred Shares and lending 99% of the proceeds thereof to SCI
Limited. The remaining 1% of the proceeds from the issuance of LLC Common Shares
and LLC Preferred Shares will be invested by SCI Finance in Eligible Investments
(as defined in SCI Finance's Articles of Organization (the "LLC Articles")). See
"Use of Proceeds."
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CERTAIN INVESTMENT CONSIDERATIONS
In evaluating an investment in the Securities, prospective purchasers should
carefully consider the following factor, together with (i) other information
included in the accompanying Prospectus Supplement (which may include additional
factors and may contain information modifying or superseding the factor set
forth below), (ii) information included elsewhere in this Prospectus, and (iii)
information incorporated herein by reference (which may modify or supersede the
factor set forth below).
SECURITIES AND EXCHANGE COMMISSION INVESTIGATION
The staff of the Division of Enforcement of the Commission has advised SCI that
it is considering recommending to the Commission that it institute an
administrative proceeding pursuant to Section 21C of the Exchange Act seeking
cease and desist orders against SCI, R. L. Waltrip, Chairman of the Board and
Chief Executive Officer, L. William Heiligbrodt, President and Chief Operating
Officer, and Samuel W. Rizzo, Executive Vice President and Chief Financial
Officer/Treasurer, for violations of certain reporting and disclosure
requirements of the Exchange Act and the regulations promulgated thereunder. The
recommendation under consideration by the staff arises out of the informal
private investigation previously disclosed by SCI relating to, among other
things, the change in SCI's accountants and SCI's Form 8-K dated March 31, 1993,
as amended in April 1993, reporting such change. See Items 3 and 9 of SCI's
Annual Report on Form 10-K for the fiscal year ended December 31, 1993. The
staff has offered SCI and the named individuals the opportunity to make a
presentation with respect to the recommendation under consideration.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement accompanying
this Prospectus, the net proceeds to the Company from the sale or sales of the
Securities other than LLC Preferred Securities will be used for general
corporate purposes. Except as set forth in the Prospectus Supplement
accompanying this Prospectus, 99% of the proceeds from any offering of the LLC
Preferred Securities will be lent by SCI Finance to SCI Limited (the "Loans"),
which will use such proceeds in connection with SCI's foreign acquisition
program, and the remaining 1% will be invested by SCI Finance in Eligible
Investments.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior, senior subordinated or
subordinated debt of the Company and will be issued, in the case of Debt
Securities that will be senior debt ("Senior Debt Securities"), under a Senior
Indenture (the "Senior Debt Indenture") dated as of February 1, 1993, between
the Company and The Bank of New York, as trustee; in the case of Debt Securities
that will be senior subordinated debt ("Senior Subordinated Debt Securities"),
under a Senior Subordinated Indenture (the "Senior Subordinated Debt Indenture")
to be entered into between the Company and Texas Commerce Bank National
Association ("Texas Commerce Bank"), as trustee; and, in the case of Debt
Securities that will be subordinated debt ("Subordinated Debt Securities" and,
together with the Senior Subordinated Debt Securities, the "Subordinated
Securities") under a Subordinated Indenture (the "Subordinated Debt Indenture"
and, together with the Senior Subordinated Debt Indenture, the "Subordinated
Indentures") dated as of September 1, 1991 between the Company and Texas
Commerce Bank, as trustee. The Senior Debt Indenture, the Senior Subordinated
Debt Indenture and the Subordinated Debt Indenture are sometimes hereinafter
referred to individually as an "Indenture" and collectively as the "Indentures."
Each of The Bank of New York and Texas Commerce Bank (and any successors thereto
as trustees under the respective Indentures) is hereinafter referred to as the
"Trustee" with respect to the Indenture under which it acts as Trustee. The
Indentures are filed as exhibits to the Registration Statement. The following
summaries of certain provisions of the Indentures and the Debt Securities do not
purport to be complete, and such summaries are subject to the detailed
provisions of the applicable Indenture to which reference is hereby made for a
full description of such provisions, including the definition of certain
capitalized terms used herein but not otherwise defined herein. Whenever defined
terms of the applicable Indenture are referred to, such defined terms are
incorporated herein by reference as part of the statement made, and the
statement is qualified in its entirety by such reference. The Indentures are
substantially identical, except for certain covenants of the Company, events of
default and provisions relating to subordination and conversion.
The Debt Securities may be issued from time to time in one or more series. The
following description of the Debt Securities sets forth certain general terms
and provisions of the Debt Securities of all series. The particular terms of
each series of Debt Securities offered by any Prospectus Supplement will be
described therein.
PROVISIONS APPLICABLE TO SENIOR, SENIOR SUBORDINATED AND SUBORDINATED DEBT
SECURITIES
General. The Debt Securities will be unsecured senior, senior subordinated or
subordinated obligations of the Company and may be issued from time to time in
one or more series. The Indentures will not limit the amount of Debt Securities,
Senior Indebtedness, debentures, notes or other types of indebtedness that may
be issued by the Company or any of its Subsidiaries nor will they restrict
transactions between the Company and its Affiliates, the payment of dividends or
the making of investments by the Company or the transfer of assets by the
Company to its Subsidiaries. The Company currently conducts substantially all
its operations through Subsidiaries. Consequently, the rights of the Company to
receive assets of any Subsidiary (and thus the ability of holders of Debt
Securities to benefit indirectly from such assets) are subject to the prior
claims of creditors of that Subsidiary. Other than as may be set forth in any
Prospectus Supplement, the Indentures and the Debt Securities will not contain
any covenants or other provisions that are intended to afford holders of the
Debt Securities special protection in the event of a highly leveraged
transaction by the Company. As of June 30, 1994, the Company had outstanding
approximately $988 million of secured debt or Senior Indebtedness (including
approximately $34 million principal amount of guarantees) and approximately $198
million of unsecured subordinated debt.
Reference is made to the Prospectus Supplement relating to any Debt Securities
for the following terms of and information relating to such Debt Securities (to
the extent such terms are applicable thereto): (i) the title of such Debt
Securities; (ii) classification as Senior Debt Securities, Senior Subordinated
Debt Securities or Subordinated Debt Securities, aggregate principal amount,
purchase price and denomination; (iii) whether such Debt Securities that
constitute Senior Subordinated Debt Securities or Subordinated Debt Securities
are convertible into Common Stock and, if so, the terms and conditions upon
which such conversion will be effected including the initial conversion price or
conversion rate and any adjustments thereto in addition to or different from
those described herein, the conversion period and other conversion provisions in
addition to or in lieu of
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those described herein; (iv) the date or dates on which such Debt Securities
will mature; (v) the method by which amounts payable in respect of principal of
or premium, if any, or interest, if any, on or upon the redemption of such Debt
Securities may be calculated; (vi) the interest rate or rates (or the method by
which such will be determined), and the dates from which such interest, if any,
will accrue; (vii) the date or dates on which any such interest will be payable;
(viii) the place or places where and the manner in which the principal of and
premium, if any, and interest, if any, on such Debt Securities will be payable
and the place or places where such Debt Securities may be presented for transfer
and, if applicable, conversion; (ix) the obligations, if any, of the Company to
redeem, repay or purchase such Debt Securities pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof or the right, if any,
of the Company to redeem, repay or purchase such Debt Securities at its option
and the period or periods within which, the price or prices at which and the
terms and conditions upon which such Debt Securities will be redeemed, repaid or
purchased pursuant to any such obligation or right (including the form or method
of payment thereof if other than cash); (x) any terms applicable to such Debt
Securities issued at an original issue discount below their stated principal
amount, including the issue price thereof and the rate or rates at which such
original issue discount shall accrue; (xi) any index used to determine the
amount of payments of principal of and any premium and interest on such Debt
Securities; (xii) any special United States federal income tax consequences; and
(xiii) any other specified terms of such Debt Securities, including any
additional or different events of default or remedies or any additional
covenants provided with respect to such Debt Securities, and any terms which may
be required by or advisable under applicable laws or regulations.
Unless otherwise specified in any Prospectus Supplement, the Debt Securities
will be issued only in fully registered form and in denominations of $1,000 and
any integral multiple thereof. No service charge will be made for any transfer
or exchange of any Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par that are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable Prospectus Supplement.
The Indentures and the Debt Securities will be governed by Texas law.
Global Securities. The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities ("Global Securities") that
will be deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series. Global
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to the
nominee of the Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global Security
or its nominee will credit, on its book-entry registration and transfer system,
the respective principal amounts of the individual Debt Securities represented
by such Global Security to the accounts of persons that have accounts with such
Depositary. Such accounts shall be designated by the dealers, underwriters or
agents with respect to such Debt Securities or by the Company if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in a Global Security will be limited to persons that have accounts
with the applicable Depositary ("participants") or persons that may hold
interests through participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the applicable Depositary or its nominee
(with respect to interests of participants) and the
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records of participants (with respect to interests of persons other than
participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary for a Global Security or its nominee is the registered
owner of such Global Security, such Depositary or its nominee, as the case may
be, will be considered the sole owner or holder of the Debt Securities of the
series represented by such Global Security for all purposes under the Indenture
governing such Debt Securities. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have any of the
individual Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture governing such Debt
Securities.
Payments of principal of and premium, if any, and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominees will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. Neither the Company, the Trustee for such
Debt Securities, any paying agent nor the registrar for such Debt Securities
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt Securities or its
nominee, upon receipt of any payment of principal, premium or interest in
respect of a Global Security representing any such Debt Securities, immediately
will credit participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the principal amount of such Global
Security for such Debt Securities as shown on the records of such Depositary or
its nominee. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name." Such payments will be the responsibility of such participants.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series in exchange for the Global Security representing such
series of Debt Securities. In addition, the Company may at any time and in its
sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any Debt
Securities of a series represented by one or more Global Securities and, in such
event, will issue individual Debt Securities of such series in exchange for the
Global Security or Securities representing such series of Debt Securities.
Further, if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company and the
Depositary for such Global Security, receive individual Debt Securities of such
series in exchange for such beneficial interests, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities. In any
such instance, an owner of a beneficial interest in a Global Security will be
entitled to a physical delivery of individual Debt Securities of the series
represented by such Global Security equal in principal amount to such beneficial
interest and to have such Debt Securities registered in its name. Individual
Debt Securities of such series so issued will be issued in denominations, unless
otherwise specified by the Company, of $1,000 and integral multiples thereof.
Consolidation, Merger, Sale. Each Indenture provides that the Company may
consolidate or merge with or into any other corporation, and may sell, lease,
exchange or otherwise dispose of all or substantially all of its property and
assets to any other corporation authorized to acquire and operate the same,
provided that in any such case (i) immediately after such transaction the
Company or such other corporation formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, will not be in default in the performance or observance of any
of the terms, covenants and conditions in the Indenture to be kept or performed
by the Company, (ii) the corporation (if other than the Company) formed by or
surviving any such consolidation or merger, or to which such sale, lease
exchange or other disposition shall have been made, shall be a corporation
organized under the laws of the United States of America, any state
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thereof or the District of Columbia, and (iii) the corporation (if other than
the Company) formed by such consolidation, or into which the Company shall have
been merged, or the corporation which shall have acquired or leased such
property and assets, shall assume, by a supplemental indenture, the Company's
obligations under such Indenture. In case of any such consolidation, merger,
sale, lease, exchange or other disposition and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named in
such Indenture as the Company and subject to the conditions set forth in the
Indenture, and the Company shall be relieved of any further obligation under
such Indenture and any Debt Securities issued thereunder.
Discharge and Defeasance. The Company may discharge or defease its obligations
with respect to each series of Debt Securities as set forth below.
The Company may discharge all of its obligations (except those set forth below)
to holders of any series of Debt Securities issued under any Indenture, which
Debt Securities have not already been delivered to the Trustee for cancellation
and which either have become due and payable or are by their terms due and
payable within one year (or are to be called for redemption within one year) by
depositing with the Trustee cash or U.S. Government Obligations, or a
combination thereof, as trust funds in an amount certified to be sufficient to
pay when due the principal of and premium, if any, and interest, if any, on all
outstanding Debt Securities of such series and to make any mandatory sinking
fund payments thereon when due.
Unless otherwise provided in the applicable Prospectus Supplement, the Company
may also discharge at any time all of its obligations (except those set forth
below) to holders of any series of Debt Securities issued under any Indenture
(other than convertible Debt Securities) ("defeasance") if, among other things:
(i) the Company irrevocably deposits with the Trustee cash or U.S. Government
Obligations, or a combination thereof, as trust funds in an amount certified to
be sufficient to pay the principal of and premium, if any, and interest, if any,
on all outstanding Debt Securities of such series when due and to make any
mandatory sinking fund payments thereon when due, and such funds have been so
deposited for 91 days; (ii) such deposit will not result in a breach or
violation of, or cause a default under, any agreement or instrument to which the
Company is a party or by which it is bound; and (iii) the Company delivers to
the Trustee an opinion of counsel to the effect that the holders of such series
of Debt Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance, and that such
defeasance will not otherwise alter the United States federal income tax
treatment of principal and interest payments on such series of Debt Securities.
Such opinion of counsel must be based on a ruling of the Internal Revenue
Service or a change in United States federal income tax law occurring after the
date of the Indenture relating to the Debt Securities of such series, since such
a result would not occur under current tax law.
In the event of such discharge and defeasance of a series of Debt Securities,
the holders thereof would be entitled to look only to such trust funds for
payment of the principal of and any premium and interest on such Debt
Securities.
Notwithstanding the foregoing, no discharge or defeasance described above shall
affect the following obligations to or rights of the holders of any series of
Debt Securities: (i) rights of registration of transfer and exchange of Debt
Securities of such series; (ii) rights of substitution of mutilated, defaced,
destroyed, lost or stolen Debt Securities of such series; (iii) rights of
holders of Debt Securities of such series to receive payments of principal
thereof and interest, if any, thereon when due and to receive mandatory sinking
fund payments, if any, thereon when due from the trust funds held by the
Trustee; (iv) the rights, obligations, duties and immunities of the Trustee; (v)
the rights of holders of Debt Securities of such series as beneficiaries with
respect to property deposited with the Trustee payable to all or any of them;
(vi) the obligations of the Company to maintain an office or agency in respect
of Debt Securities of such series; and (vii) if applicable, the obligations of
the Company with respect to the conversion of Debt Securities of such series
into Common Stock.
Modification of the Indenture. Each Indenture provides that the Company and the
Trustee may enter into supplemental indentures without the consent of the
holders of the Debt Securities to (i) evidence the assumption by a successor
corporation of the obligations of the Company under such Indenture, (ii) add
covenants or new events of default for the protection of the holders of such
Debt Securities, (iii) cure any ambiguity or correct any inconsistency in the
Indenture, (iv) establish the form and terms of any series of Debt Securities
and to
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provide for adjustment of conversion rights, (v) evidence the acceptance of
appointment by a successor trustee, (vi) amend the Indenture in any other manner
which the Company may deem necessary or desirable and which will not adversely
affect the interests of the holders of Debt Securities issued thereunder or
(vii) in the case of Senior Debt Securities, secure such Debt Securities.
Each Indenture also contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities then Outstanding of each series affected
by such supplemental Indenture, to add any provisions to, or change in any
manner or eliminate any of the provisions of, such Indenture or modify in any
manner the rights of the holders of the Debt Securities of such series; provided
that the Company and the Trustee may not, without the consent of the holder of
each outstanding Debt Security affected thereby, (i) extend the stated maturity
of the principal of any Debt Security, reduce the principal amount thereof,
reduce the rate or extend the time of payment of any interest thereon, reduce or
alter the method of computation of any amount payable on redemption, repayment
or purchase thereof, reduce the portion of the principal amount of any Original
Issue Discount Security payable upon acceleration or provable in bankruptcy,
change the coin or currency in which principal and interest, if any, are
payable, impair or affect the right to institute suit for the enforcement of any
payment, repayment or purchase thereof or, if applicable, adversely affect the
right to convert Debt Securities, any right of repayment at the option of the
holder or (solely with respect to the Senior Subordinated Debt Indenture)
change, amend or modify the subordination provisions of such Indenture or any of
the definitions used in the subordination provisions of such Indenture or
consent to the departure from any of the terms of the subordination provisions
of such Indenture in each case in any manner that would adversely affect the
holders of any of the Senior Subordinated Debt Securities issued thereunder or
(ii) reduce the percentage in aggregate principal amount of Debt Securities of
any series issued under such Indenture, the consent of the holders of which is
required for any such modification.
The Senior Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Senior Subordinated Debt Securities, and the
Subordinated Debt Indenture may not be amended to alter the subordination of any
outstanding Subordinated Debt Securities, in each case without the consent of
each holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
Each of the Indentures provides that the term "Original Issue Discount Security"
means any Debt Security that provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to the terms of the Indenture.
In each of the Indentures, the definition of the term "Outstanding," with
reference to Debt Securities, provides that in determining whether the holders
of the requisite aggregate principal amount of Outstanding Debt Securities of
any or all series have given any request, demand, authorization, direction,
notice, consent or waiver under the applicable Indenture, the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
for such purposes shall be the portion of the principal amount thereof that
would be due and payable as of the date of such determination (as certified by
the Company to the Trustee) upon a declaration of acceleration of the maturity
thereof pursuant to the terms of the Indenture.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
General. Senior Debt Securities will be issued under the Senior Debt Indenture,
and each series will rank pari passu as to the right of payment of principal,
premium, if any, and interest, if any, with each other series and with all other
Senior Indebtedness of the Company.
Events of Default. Unless otherwise specified in the Prospectus Supplement, an
Event of Default is defined under the Senior Debt Indenture with respect to the
Senior Debt Securities of any series issued thereunder as being any one or more
of the following events:
(i) default in the payment of any installment of interest upon any of the Senior
Debt Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(ii) default in the payment of the principal of any of the Senior Debt
Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
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(iii) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Senior Debt Securities of such series, as
and when such obligation shall become due and payable; or
(iv) failure on the part of the Company duly to observe or perform any other of
the covenants or agreements on the part of the Company in the Senior Debt
Securities of such series or in the Senior Debt Indenture continued for a period
of 60 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Company by the Trustee by
registered or certified mail, or to the Company and the Trustee by the holders
of at least 25 percent in aggregate principal amount of the Senior Debt
Securities of such series then Outstanding; or
(v) without the consent of the Company a court having jurisdiction shall enter
an order for relief with respect to the Company under the Bankruptcy Code or
without the consent of the Company a court having jurisdiction shall enter a
judgment, order or decree adjudging the Company a bankrupt or insolvent, or
enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Bankruptcy Code or
applicable state insolvency law and the continuance of any such judgment, order
or decree is unstayed and in effect for a period of 60 consecutive days; or
(vi) the Company shall institute proceedings for entry of an order for relief
with respect to the Company under the Bankruptcy Code or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to,
reorganization, arrangement, composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to the filing of such petition or to
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of substantially all of its
property, or the Company shall make a general assignment for the benefit of
creditors as recognized under the Bankruptcy Code; or
(vii) default under any bond, debenture, note or other evidence of Indebtedness
for money borrowed by the Company or any Subsidiary or under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
Subsidiary (other than Non-Recourse Indebtedness), whether such Indebtedness
exists on the date of the Senior Debt Indenture or shall thereafter be created,
which default shall have resulted in such Indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, or any default in payment of such Indebtedness (after
the expiration of any applicable grace periods and the presentation of any debt
instruments, if required), if the aggregate amount of all such Indebtedness
which has been so accelerated and with respect to which there has been such a
default in payment shall exceed $5,000,000, without each such default and
acceleration having been rescinded or annulled within a period of 30 days after
there shall have been given to the Company by the Trustee by registered mail, or
to the Company and the Trustee by the holders of at least 25 percent in
aggregate principal amount of the Senior Debt Securities of such series then
Outstanding, a written notice specifying each such default and requiring the
Company to cause each such default and acceleration to be rescinded or annulled
and stating that such notice is a "Notice of Default" under the Senior Debt
Indenture; or
(viii) any other Event of Default provided with respect to the Senior Debt
Securities of such series.
If an Event of Default with respect to Senior Debt Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Senior Debt Securities of such series shall
have already become due and payable, either the Trustee or the holders of not
less than 25 percent in aggregate principal amount of the Senior Debt Securities
of such series then Outstanding, by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the unpaid principal amount
(or, if the Senior Debt Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all the Senior Debt Securities of such series and the
interest, if any, accrued thereon to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything in the Senior Debt Indenture or in the Senior Debt Securities
of such series contained to the contrary notwithstanding. This provision,
however, is subject to the condition that, if at any time after the unpaid
principal amount (or such specified amount) of the Senior Debt Securities of
such series shall have been so declared due and payable and before any judgment
or
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decree for the payment of the moneys due shall have been obtained or entered,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest, if any, upon all of the Senior Debt
Securities of such series and the principal of any and all Senior Debt
Securities of such series which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest, if any, to the
extent that payment of such interest is enforceable under applicable law and on
such principal at the rate borne by the Senior Debt Securities of such series to
the date of such payment or deposit) and the reasonable compensation,
disbursements, expenses and advances of the Trustee, and any and all defaults
under the Senior Debt Indenture, other than the nonpayment of such portion of
the principal amount of and accrued interest, if any, on Senior Debt Securities
of such series which shall have become due by acceleration, shall have been
cured or shall have been waived in accordance with the Senior Debt Indenture or
provision deemed by the Trustee to be adequate shall have been made
therefor -- then and in every such case the holders of a majority in aggregate
principal amount of the Senior Debt Securities of such series then Outstanding,
by written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default with respect to the Company
specified in clause (v) or (vi) above occurs, the unpaid principal amount (or,
if the Senior Debt Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Senior Debt
Securities of each series then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act by the Trustee
or any Securityholder. If the Trustee shall have proceeded to enforce any right
under the Senior Debt Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company, the Trustee and the Securityholders shall be
restored respectively to their several positions and rights under the Senior
Debt Indenture, and all rights, remedies and powers of the Company, the Trustee
and the Securityholders shall continue as though no such proceeding had been
taken. Except with respect to an Event of Default pursuant to clause (i), (ii)
or (iii) above, the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to the Trustee by
the Company, a Paying Agent or any Securityholder.
The Senior Debt Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Senior
Debt Indenture at the request or direction of any of the holders of Senior Debt
Securities issued under the Senior Debt Indenture, unless such holders shall
have offered to the Trustee reasonable security or indemnity.
No holder of any Senior Debt Securities of any series then Outstanding shall
have any right by virtue of or by availing of any provision of the Senior Debt
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to the Senior Debt Indenture or the Senior Debt
Securities or for the appointment of a receiver or trustee or similar official,
or for any other remedy under the Senior Debt Indenture or under the Senior Debt
Securities, unless such holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, and unless the holders
of not less than 25 percent in aggregate principal amount of the Senior Debt
Securities of such series then Outstanding shall have made written request to
the Trustee to institute such action, suit or proceeding in its own name as
Trustee and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. Notwithstanding any other provisions in the
Senior Debt Indenture, however, the right of any holder of any Senior Debt
Security to receive payment of the principal of and interest, if any, on such
Senior Debt Security, on or after the respective due dates expressed in such
Senior Debt Security, or to institute suit for the enforcement of any such
payment on or after such respective dates shall not be impaired or affected
without the consent of such holder.
The holders of at least a majority in aggregate principal amount of the Senior
Debt Securities of any series then Outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Senior Debt Securities of such series; provided, however, that
(subject to certain exceptions) the Trustee shall have the
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right to decline to follow any such direction if the Trustee shall determine
upon advice of counsel that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith shall determine that the
action or proceeding so directed would involve the Trustee in personal
liability. The holders of 66 2/3% in aggregate principal amount of the Senior
Debt Securities of any series then Outstanding may on behalf of the holders of
all of the Senior Debt Securities of such series waive any past default or Event
of Default and its consequences except a default in the payment of interest, if
any, on, or the principal of, the Senior Debt Securities of such series. Upon
any such waiver the Company, the Trustee and the holders of the Senior Debt
Securities of such series shall be restored to their former positions and rights
under the Senior Debt Indenture, respectively; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default shall have been
waived as permitted, said default or Event of Default shall for all purposes of
the Senior Debt Securities and the Senior Debt Indenture be deemed to have been
cured and to be not continuing.
The Trustee shall, within 90 days after the occurrence of a default, with
respect to Senior Debt Securities of any series then Outstanding, mail to all
holders of Senior Debt Securities of such series, as the names and the addresses
of such holders appear upon the Senior Debt Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of these provisions being hereby defined to be the events specified
in clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) of "-- Provisions
Applicable Solely to Senior Debt Securities -- Events of Default" above, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (iv) or (vii) but in the
case of any default of the character specified in said clause (iv) or (vii) no
such notice to Securityholders shall be given until at least 60 days after the
giving of written notice thereof to the Company pursuant to said clause (iv) or
(vii), as the case may be); provided, however, that, except in the case of
default in the payment of the principal of or interest, if any, on any of the
Senior Debt Securities, or in the payment or satisfaction of any sinking fund or
other purchase obligation, the Trustee shall be protected in withholding such
notice if and so long as the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
The Company is required to furnish to the Trustee annually a statement as to the
fulfillment by the Company of all of its obligations under the Senior Debt
Indenture.
Limitation on Liens. The Company may not, nor may any Subsidiary, mortgage,
pledge, encumber or subject to any lien or security interest to secure any
obligation of the Company or any obligation of any Subsidiary (other than
obligations owing to the Company or a wholly-owned Subsidiary) any assets,
whether owned as of the date the Senior Debt Indenture was executed or
thereafter acquired, without effectively providing that the Senior Debt
Securities shall be secured equally and ratably with (or prior to) such
obligation, unless, after given effect thereto, the aggregate amount of all such
secured debt of the Company and its Subsidiaries (excluding secured Indebtedness
existing as of the date the Senior Debt Indenture was executed and any
extensions, renewals or refundings thereof that do not increase the principal
amount of Indebtedness so extended, renewed or refunded and excluding secured
Indebtedness incurred pursuant to clauses (a), (b), (c) and (d) set forth below)
would not exceed 10% of Consolidated Net Worth of the Company and its
Subsidiaries; provided, however, that this restriction will not prevent the
Company or any Subsidiary: (a) from acquiring and retaining property subject to
mortgages, pledges, encumbrances, liens or security interests existing thereon
at the date of acquisition thereof, or from creating within one year of such
acquisition mortgages, pledges, encumbrances or liens upon property acquired by
it after the date of the Senior Debt Indenture, as security for purchase money
obligations incurred by it in connection with the acquisition of such property,
whether payable to the person from whom such property is acquired or otherwise;
(b) from mortgaging, pledging, encumbering or subjecting to any lien or security
interest Current Assets to secure Current Liabilities; (c) from extending,
renewing or refunding any Indebtedness secured by a mortgage, pledge,
encumbrance, lien or security interest on the same property theretofore subject
thereto, provided that the principal amount of such Indebtedness so extended,
renewed or refunded shall not be increased; or (d) from securing the payment of
workmen's compensation or insurance premiums or from making good faith pledges
or deposits in connection with bids, tenders, contracts (other than contracts
for the payment of money) or leases, deposits to secure public or statutory
obligations, deposits to secure surety or
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appeal bonds, pledges or deposits in connection with contracts made with or at
the request of the United States Government or any agency thereof, or pledges or
deposits for similar purposes in the ordinary course of business.
"Consolidated Net Worth" means, at any date, the sum of (i) the par value (or
value stated on the books of the Company) of the capital stock of all classes of
the Company (including preferred stock), plus (or minus in the case of a
deficit) (ii) the amount of the consolidated surplus, whether capital or earned,
of the Company and its Subsidiaries, determined in accordance with generally
accepted accounting principles.
"Current Assets" of any Person includes all assets of such Person which would be
classified as current assets in accordance with generally accepted accounting
principles.
"Current Liabilities" of any Person includes all liabilities of such Person
which would be classified as current liabilities in accordance with generally
accepted accounting principles.
Limitation on Sale and Leaseback Transactions. Neither the Company nor any
Subsidiary will enter into any transaction with any bank, insurance company or
other lender or investor, or to which any such lender or investor is a party,
providing for the leasing to the Company or a Subsidiary of any real property
(except a lease for a temporary period not to exceed three years by the end of
which it is intended that the use of such real property by the lessee will be
discontinued) which has been or is to be sold or transferred by the Company or
such Subsidiary to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such
real property unless either: (1) such transaction is the substantial equivalent
of a mortgage, pledge, encumbrance, lien or security interest which the Company
or any Subsidiary would have been permitted to create under the "Limitation on
Liens" covenant without equally and ratably securing the Senior Debt Securities,
or (2) the Company within 120 days after such transaction applied (and in any
such case the Company covenants that it will so apply) an amount equal to the
greater of (i) the net proceeds of the sale of the real property leased pursuant
to such transaction or (ii) the fair value of the real property so leased at the
time of entering into such transaction (as determined by the Board of
Directors), to the retirement of Funded Debt of the Company; provided that the
amount to be applied to the retirement of Funded Debt of the Company shall be
reduced by: (a) the principal amount of any Senior Debt Securities (for this
purpose if the Senior Debt Securities of that series are Original Issue Discount
Securities, the principal amount of the Outstanding Senior Debt Securities of
that series shall be computed and adjusted as may be specified in the terms of
that series) delivered within 120 days after such sale to the Trustee for
retirement and cancellation and (b) the principal amount of Funded Debt, other
than Senior Debt Securities, voluntarily retired by the Company within 120 days
after such sale; provided that no retirement referred to in this clause (2) may
be effected by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision.
"Funded Debt" means Indebtedness for money borrowed which by its terms matures
at or is extendible or renewable at the option of the obligor to a date more
than 12 months after the date of the creation of such Indebtedness.
PROVISION APPLICABLE SOLELY TO SENIOR SUBORDINATED DEBT SECURITIES
Prohibition on Incurrence of Senior Subordinated Debt. The Company will not
incur or suffer to exist Indebtedness that is or purports to be, pursuant to its
terms or the terms of any agreement relating thereto, senior in right of payment
to the Senior Subordinated Debt Securities and subordinate or junior in right of
payment to any other Indebtedness of the Company, provided that no Indebtedness
of the Company shall be deemed to be subordinate to any other Indebtedness of
the Company solely by virtue of any such other Indebtedness being secured or
otherwise having the benefit of any lien or security interest.
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PROVISIONS APPLICABLE SOLELY TO SENIOR SUBORDINATED AND SUBORDINATED DEBT
SECURITIES
Events of Default. Unless otherwise specified in the Prospectus Supplement, an
Event of Default is defined under each of the Subordinated Indentures with
respect to the Subordinated Securities of any series issued under such Indenture
as being as one or more of the following events:
(i) default in the payment of any installment of interest upon any of the
Subordinated Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(ii) default in the payment of the principal of any of the Subordinated
Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(iii) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Subordinated Securities of such series, as
and when such obligation shall become due and payable; or
(iv) failure on the part of the Company duly to observe or perform any other of
the covenants or agreements on the part of the Company in the Subordinated
Securities of such series or in the Subordinated Indenture applicable to such
series continued for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given to the
Company by the Trustee by registered mail, or to the Company and the Trustee by
the holders of at least 25 percent in aggregate principal amount of the
Subordinated Securities of such series issued under the applicable Subordinated
Indenture then Outstanding; or
(v) without the consent of the Company a court having jurisdiction shall enter
an order for relief with respect to the Company under the Bankruptcy Code or
without the consent of the Company a court having jurisdiction shall enter a
judgment, order or decree adjudging the Company a bankrupt or insolvent, or
enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Bankruptcy Code or
applicable state insolvency law and the continuance or any such judgment, order
or decree is unstayed and in effect for a period of 60 consecutive days; or
(vi) the Company shall institute proceedings for entry of an order for relief
with respect to the Company under the Bankruptcy Code or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to filing of such petition or to the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of substantially all of its
property, or the Company shall make a general assignment for the benefit of
creditors as recognized under the Bankruptcy Code; or
(vii) default under any bond, debenture, note or other evidence of Indebtedness
for money borrowed by the Company or under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company, whether such Indebtedness
exists on the date of such Subordinated Indenture or shall thereafter be
created, which default shall have resulted in such Indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, or any default in payment of such Indebtedness
(after the expiration of any applicable grace periods and the presentation of
any debt instrument, if required), if the aggregate amount of all such
Indebtedness which has been so accelerated and with respect to which there has
been such a default in payment shall exceed $5,000,000, without each such
default and acceleration having been rescinded or annulled within a period of 30
days after there shall have been given to the Company by the Trustee by
registered mail, or to the Company and the Trustee by the holders of at least 25
percent in aggregate principal amount of the Subordinated Securities of such
series then Outstanding, a written notice specifying each such default and
requiring the Company to cause each such default and acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
under the applicable Subordinated Indenture; or
(viii) any other Event of Default provided with respect to the Subordinated
Securities of such series under the applicable Subordinated Indenture.
If an Event of Default with respect to Subordinated Securities of any series
then Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Subordinated Securities of
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<PAGE> 146
such series shall have already become due and payable, either the Trustee or the
holders of not less than 25 percent in aggregate principal amount of the
Subordinated Securities of such series then Outstanding, by notice in writing to
the Company (and to the Trustee if given by Securityholders), may declare the
unpaid principal amount (or, if the Subordinated Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all the Subordinated Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in the applicable Subordinated Indenture
or in the Subordinated Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that, if
at any time after the unpaid principal amount (or such specified amount) of the
Subordinated Securities of such series shall have been so declared due and
payable and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest, if
any, upon all of the Subordinated Securities of such series and the principal of
any and all Subordinated Securities of such series which shall have become due
otherwise than by acceleration (with interest on overdue installments of
interest, if any, to the extent that payment of such interest is enforceable
under applicable law and on such principal at the rate borne by the Subordinated
Securities of such series to the date of such payment or deposit) and the
reasonable compensation, disbursements, expenses and advances of the Trustee,
its agents, attorneys and counsel, and any and all defaults under the applicable
Subordinated Indenture, other than the nonpayment of such portion of the
principal amount of and accrued interest, if any, on Subordinated Securities of
such series which shall have become due by acceleration, shall have been cured
or shall have been waived in accordance with the applicable Subordinated
Indenture or provision deemed by the Trustee to be adequate shall have been made
therefor -- then and in every such case the holders of a majority in aggregate
principal amount of the Subordinated Securities of such series then Outstanding,
by written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default with respect to the Company
specified in clause (v) or (vi) above occurs, the unpaid principal amount (or,
if the Subordinated Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Subordinated
Securities of each series then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act by the Trustee
or any Securityholder. If the Trustee shall have proceeded to enforce any right
under the applicable Subordinated Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company, the Trustee and the Securityholders shall be
restored respectively to their several positions and rights under the applicable
Subordinated Indenture, and all rights, remedies and powers of the Company, the
Trustee and the Securityholders shall continue as though no such proceeding had
been taken. Except with respect to an Event of Default pursuant to clause (i),
(ii) or (iii) above, the Trustee shall not be charged with knowledge of any
Event of Default unless written notice thereof shall have been given to the
Trustee by the Company, a Paying Agent or any Securityholder.
Each of the Subordinated Indentures provides that, subject to the duty of the
Trustee during default to act with the required standard of care, the Trustee
will be under no obligation to exercise any of its rights or powers under such
Subordinated Indenture at the request or direction of any of the holders or
Subordinated Securities issued under the such Subordinated Indenture, unless
such holders shall have offered to the Trustee reasonable security or indemnity.
No holder of any Subordinated Securities of any series then Outstanding shall
have any right by virtue of or by availing of any provision of the applicable
Subordinated Indenture to institute any suit, action or proceeding in equity or
at law upon or under or with respect to such Subordinated Indenture or the
Subordinated Securities issued under such Subordinated Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy under such Subordinated Indenture or thereunder, unless such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as provided in such Subordinated Indenture, and unless the
holders of not less than 25 percent in aggregate principal amount of the
Subordinated Securities of such series then Outstanding shall have made written
request to the Trustee to institute such
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<PAGE> 147
action, suit or proceeding in its own name as Trustee under such Subordinated
Indenture and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. Notwithstanding any other provisions in the
applicable Subordinated Indenture, but subject to the subordination provisions
of the applicable Subordinated Indenture, the right of any holder of any
Subordinated Security to receive payment of the principal of and interest, if
any, on such Subordinated Security, on or after the respective due dates
expressed in such Subordinated Security, or, if applicable, to convert such
Subordinated Security as provided in the applicable Subordinated Indenture, or
to institute suit for the enforcement of any such payment on or after such
respective dates or for the enforcement of any such right to convert shall not
be impaired or affected without the consent of such holder.
The holders of a majority in aggregate principal amount of the Subordinated
Securities of any series then Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Subordinated Securities of such series; provided, however, that
(subject to certain exceptions) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine upon advice of counsel
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith shall determine that the action or proceeding so directed
would involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Subordinated Securities of any series then
Outstanding may on behalf of the holders of all of the Subordinated Securities
of such series waive any past default or Event of Default under the applicable
Subordinated Indenture and its consequences except a default in the payment of
interest, if any, on, or the principal of, the Subordinated Securities of such
series. Upon any such waiver the Company, the Trustee and the holders of the
Subordinated Securities of such series shall be restored to their former
positions and rights under the applicable Subordinated Indenture, respectively;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event of
Default shall have been waived as permitted, said default or Event of Default
shall for all purposes of the applicable Subordinated Securities and the
applicable Subordinated Indenture be deemed to have been cured and to be not
continuing.
The Trustee shall, within 90 days after the occurrence of a default, with
respect to Subordinated Securities of any series then Outstanding, mail to all
holders of Subordinated Securities of such series, as the names and the
addresses of such holders appear upon the applicable Subordinated Security
register, notice of all defaults known to the Trustee with respect to such
series, unless such defaults shall have been cured before the giving of such
notice (the term "defaults" for the purpose of these provisions being hereby
defined to be the events specified in clauses (i), (ii), (iii), (iv), (v), (vi),
(vii) and (viii) of " -- Provisions Applicable Solely to Senior Subordinated and
Subordinated Debt Securities -- Events of Default" above, not including periods
of grace, if any, provided for therein and irrespective of the giving of the
written notice specified in said clause (iv) or (vii) but in the case of any
default of the character specified in said clause (iv) or (vii) no such notice
to Securityholders shall be given until at least 60 days after the giving of
written notice thereof to the Company pursuant to said clause (iv) or (vii), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Subordinated
Securities, or in the payment or satisfaction of any sinking fund or other
purchase obligation, the Trustee shall be protected in withholding such notice
if and so long as the Trustee in good faith determines that the withholding of
such notice is in the best interests of the Securityholders.
The Company is required to furnish to the Trustee annually a statement as to the
fulfillment by the Company of all of its obligations under the applicable
Subordinated Indenture.
Subordination. The Subordinated Securities will be subordinate and junior in
right to payment, to the extent set forth in the applicable Subordinated
Indenture, to all Senior Indebtedness (as defined below for each of the
Subordinated Indentures) of the Company. If the Company should default in the
payment of any principal of or premium or interest on any Senior Indebtedness
when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise, then, upon
written notice of such default to the Company by the holders of such Senior
Indebtedness or any trustee therefor and subject to
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certain rights of the Company to dispute such default and subject to proper
notification of the Trustee, unless and until such default shall have been cured
or waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) will be made or agreed to be made
for principal of or premium, if any, or interest, if any, on the applicable
Subordinated Securities, or in respect of any redemption, retirement, purchase
or other acquisition of the applicable Subordinated Securities other than those
made in capital stock of the Company (or cash in lieu of fractional shares
thereof) pursuant to any conversion right of the Subordinated Securities or
otherwise made in capital stock of the Company.
"Senior Indebtedness" is defined in the Senior Subordinated Debt Indenture as
Indebtedness of the Company outstanding at any time except (a) any Indebtedness
of the Company that pursuant to its terms or the terms of any agreement relating
thereto or by operation of law is subordinate or junior in right of payment to
any other Indebtedness of the Company, provided that no Indebtedness of the
Company shall be deemed to be subordinate to any other Indebtedness of the
Company solely by virtue of any such other Indebtedness being secured or
otherwise having the benefit of any lien or security interest, (b) any
Indebtedness as to which, by the terms of the instrument creating or evidencing
the same, it is provided that such Indebtedness is not senior in right of
payment to the Senior Subordinated Debt Securities, (c) the Senior Subordinated
Debt Securities, (d) the Company's subordinated indebtedness existing on the
date of the Senior Subordinated Debt Indenture, (e) any Indebtedness of the
Company to a wholly-owned Subsidiary of the Company, (f) interest accruing after
the filing of a petition initiating certain bankruptcy or insolvency proceedings
unless such interest is an allowed claim enforceable against the Company in a
proceeding under federal or state bankruptcy laws and (g) trade accounts
payable.
"Senior Indebtedness" is defined in the Subordinated Debt Indenture as
Indebtedness of the Company outstanding at any time except (a) any Indebtedness
as to which, by the terms of the instrument creating or evidencing the same, it
is provided that such Indebtedness is not senior in right of payment to the
Subordinated Debt Securities, (b) the Subordinated Debt Securities, (c) the
Company's subordinated indebtedness existing on the date of the Subordinated
Debt Indenture, (d) any Indebtedness of the Company to a wholly owned Subsidiary
of the Company, (e) interest accruing after the filing of a petition initiating
certain bankruptcy or insolvency proceedings unless such interest is an allowed
claim enforceable against the Company in a proceeding under federal or state
bankruptcy laws and (f) trade accounts payable.
"Indebtedness" is defined in each Subordinated Indenture as, with respect to any
Person, (a)(i) the principal of and premium and interest, if any, on
indebtedness for money borrowed of such Person evidenced by bonds, notes,
debentures or similar obligations, including any guaranty by such person of any
indebtedness for money borrowed of any other Person, whether any such
indebtedness or guaranty is outstanding on the date of such Subordinated
Indenture or is thereafter created, assumed or incurred, (ii) the principal of
and premium and interest, if any, on indebtedness for money borrowed, incurred,
assumed or guaranteed by such Person in connection with the acquisition by it or
any of its subsidiaries of any other businesses, properties or other assets and
(iii) lease obligations which such Person capitalizes in accordance with
Statement of Financial Accounting Standards No. 13 promulgated by the Financial
Accounting Standards Board or such other generally accepted accounting
principles as may be from time to time in effect, (b) any other indebtedness of
such Person, including any indebtedness representing the deferred and unpaid
balance of the purchase price of any property or interest therein, including any
such balance that constitutes a trade account payable, and any guaranty,
endorsement or other contingent obligation of such Person in respect of any
indebtedness of another, which is outstanding on the date of such Subordinated
Indenture or is thereafter created, assumed or incurred by such Person and (c)
any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clause (a) or (b) above.
If (i) without the consent of the Company a court having jurisdiction shall
enter (A) an order for relief with respect to the Company under the United
States federal bankruptcy laws, (B) a judgment, order or decree adjudging the
Company as bankrupt or insolvent or (C) an order for relief for reorganization,
arrangement, adjustment or composition of or in respect of the Company under the
United States federal bankruptcy laws or state insolvency laws or (ii) the
Company shall institute proceedings for the entry of an order for relief with
respect to the Company under the United States federal bankruptcy laws or for an
adjudication of insolvency, or shall consent to the institution of bankruptcy or
insolvency proceedings against it, or shall file a petition
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seeking, or seek or consent to reorganization, arrangement, composition or
similar relief under the United States federal bankruptcy laws or any applicable
state law, or shall consent to the filing of such petition or to the appointment
of a receiver, custodian, liquidator, assignee, trustee, sequestrator or similar
official in respect of the Company or of substantially all of its property, or
the Company shall make a general assignment for the benefit of creditors, then
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) will first be paid in full before any
payment or distribution, whether in cash, securities or other property, is made
on account of the principal of or premium, if any, or interest, if any, on the
applicable Subordinated Securities. In such event, any payment or distribution
on account of the principal of or premium, if any, or interest, if any, on the
applicable Subordinated Securities, whether in cash, securities or other
property (other than securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the applicable Subordinated Securities, to the payment of all
Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for the subordination provisions) be payable or deliverable in
respect of the applicable Subordinated Securities will be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the priorities
then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) has
been paid in full. In the event of any such proceeding, after payment in full of
all sums owing with respect to Senior Indebtedness, the holders of Subordinated
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Subordinated Securities issued under the applicable
Subordinated Indenture, will be entitled to be repaid from the remaining assets
of the Company the amounts at the time due and owing on account of unpaid
principal of or any premium or any interest on the Subordinated Securities
issued under the applicable Subordinated Indenture and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or obligations of the
Company ranking junior to the Subordinated Securities issued under the
applicable Subordinated Indenture and such other obligations. If,
notwithstanding the foregoing, any payment or distribution on the Subordinated
Securities issued under the applicable Subordinated Indenture of any character,
whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Subordinated
Securities issued under the applicable Subordinated Indenture, to the payment of
all Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan or reorganization or readjustment), shall be
received by the Trustee or any holder of any Subordinated Securities issued
under the applicable Subordinated Indenture in contravention of any of the terms
of the applicable Subordinated Indenture, such payment or distribution will be
received in trust for the benefit of, and will be paid over or delivered and
transferred to, the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all such Senior Indebtedness in full. In the event of the
failure of the Trustee or any holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is irrevocably
authorized to endorse or assign the same.
Each of the Subordinated Indentures will provide that Senior Indebtedness shall
not be deemed to have been paid in full unless the holders thereof shall have
received cash, securities or other property equal to the amount of such Senior
Indebtedness then outstanding. Upon the payment in full of all Senior
Indebtedness, the holders of Subordinated Securities of each series shall be
subrogated to all rights of any holders of Senior Indebtedness to receive any
further payments or distributions applicable to such Senior Indebtedness until
the indebtedness evidenced by the Subordinated Securities of such series shall
have been paid in full, and such payments or distributions received by such
holders, by reason of such subrogation, of cash, securities or other property
which otherwise would be paid or distributed to the holders of Senior
Indebtedness with respect to such Series, shall, as between the Company and its
creditors other than the holders of such Senior Indebtedness, on the one hand,
and such holders, on the other hand, be deemed to be a payment by the Company on
account of such Senior Indebtedness, and not on account of the Subordinated
Securities of such series.
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By reason of such subordination, in the event of the insolvency of the Company,
holders of Senior Indebtedness and holders of other obligations of the Company
that are not subordinated to Senior Indebtedness may receive more, ratably, than
holders of the Subordinated Securities. Such subordination will not prevent the
occurrence of an Event of Default or limit the right of acceleration in respect
of the Subordinated Securities.
Conversion. Each of the Subordinated Indentures will provide that a series of
Subordinated Securities may be convertible into Common Stock (or cash in lieu
thereof). The following provisions will apply to Debt Securities that are
convertible Subordinated Securities unless otherwise provided in the Prospectus
Supplement for such Debt Securities.
The holder of any convertible Subordinated Securities will have the right
exercisable at any time prior to maturity, subject to prior redemption by the
Company, to convert such Subordinated Securities into shares of Common Stock at
the conversion price or conversion rate set forth in the Prospectus Supplement,
subject to adjustment. The holder of convertible Subordinated Securities may
convert any portion thereof which is $1,000 in principal amount or any integral
multiple thereof.
In certain events, the conversion price or conversion rate will be subject to
adjustment as set forth in the applicable Subordinated Indenture. Such events
include issuance of shares of Common Stock as a dividend or distribution on the
Common Stock; subdivisions, combinations and reclassifications of the Common
Stock; redemption of the preferred share purchase rights associated with the
Common Stock; the issuance to all holders of Common Stock of rights or warrants
entitling the holders thereof (for a period not exceeding 45 days) to subscribe
for or purchase shares of Common Stock at a price per share less than the then
current market price per share of Common Stock (as determined pursuant to the
applicable Subordinated Indenture); and the distribution to substantially all
holders of Common Stock of evidences of indebtedness, equity securities
(including equity interests in the Company's Subsidiaries) other than Common
Stock, or other assets (excluding cash dividends paid from surplus) or
subscription rights or warrants (other than those referred to above). No
adjustment of the conversion price or conversion rate will be required unless an
adjustment would require a cumulative increase or decrease of at least 1% in
such price or rate. The Company has been advised by its counsel that certain
adjustments in the conversion price or conversion rate in accordance with the
foregoing provisions may result in constructive distributions to either holders
of the Subordinated Securities issued under the applicable Subordinated
Indenture or holders of Common Stock which would be taxable pursuant to Treasury
Regulations issued under Section 305 of the Internal Revenue Code of 1986. The
amount of any such taxable constructive distribution will be the fair market
value of the Common Stock that is treated as having been constructively
received, such value being determined as of the time the adjustment resulting in
the constructive distribution is made.
Fractional shares of Common Stock will not be issued upon conversion, but, in
lieu thereof, the Company will pay a cash adjustment based on the then current
market price for the Common Stock. Upon conversion, no adjustments will be made
for accrued interest or dividends, and therefore convertible Subordinated
Securities surrendered for conversion between the record date for an interest
payment and the interest payment date (except convertible Subordinated
Securities called for redemption on a redemption date during such period) must
be accompanied by payment of an amount equal to the interest thereon which the
registered holder is to receive.
In the case of any consolidation or merger of the Company (with certain
exceptions) or any sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company, the holder of
convertible Subordinated Securities, after the consolidation, merger, sale,
lease, exchange or other disposition, will have the right to convert such
convertible Subordinated Securities into the kind and amount of securities, cash
and other property which the holder would have been entitled to receive upon or
in connection with such consolidation, merger, sale, lease, exchange or other
disposition, if the holder had held the Common Stock issuable upon conversion of
such convertible Subordinated Securities issued under the applicable
Subordinated Indenture immediately prior to such consolidation, merger, sale,
lease, exchange or other disposition.
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CONCERNING THE TRUSTEES
Each of the Trustees is a depositary for funds of, makes loans to and performs
other services for the Company in the normal course of business.
In addition to serving as Trustee under the Senior Subordinated Indenture and
the Subordinated Indenture, Texas Commerce Bank also serves as Trustee under (i)
the Debenture Indenture (the "Debenture Indenture") dated as of June 15, 1992,
between the Company and Texas Commerce Bank, as trustee, and (ii) the Guarantees
of Notes of Subsidiaries Indenture (the "Guarantees Indenture") dated as of May
1, 1970, between the Company and Texas Commerce Bank, as trustee. Debt of the
Company issued pursuant to the Debenture Indenture and the Guarantees Indenture
constitutes Senior Indebtedness. As of June 30, 1994, the Company had
outstanding approximately $26 million principal amount of Senior Indebtedness
issued pursuant to the Debenture Indenture and approximately $34 million
principal amount of guarantees issued pursuant to the Guarantees Indenture.
Pursuant to the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), a trustee under an indenture may be deemed to have a conflicting
interest, and may, under certain circumstances set forth in the Trust Indenture
Act, be required to resign as trustee under such indenture, if the securities
issued under such indenture are in default (as such term is defined in such
indenture) and the trustee is the trustee under another indenture under which
any other securities of the same obligor are outstanding, subject to certain
exceptions set forth in the Trust Indenture Act. In such event, the obligor must
take prompt steps to have a successor trustee appointed in the manner provided
in the indenture from which the trustee has resigned.
Pursuant to the Trust Indenture Act, Texas Commerce Bank, as trustee under the
Senior Subordinated Indenture, the Subordinated Indenture, the Debenture
Indenture and the Guarantees Indenture, could be required to resign as trustee
under one or more of such indentures should a default occur under one or more of
such indentures. In such event, the Company would be required to take prompt
steps to have a successor trustee or successor trustees appointed in the manner
provided in the applicable indenture or indentures.
DESCRIPTION OF PREFERRED STOCK
Under SCI's Restated Articles of Incorporation, as amended (the "Articles"), SCI
has the authority to issue 1,000,000 shares of preferred stock, $1.00 par value
per share (the "Preferred Stock"). The Preferred Stock may be divided into such
amounts and issued from time to time in one or more series as may be fixed and
determined by the Board of Directors. The relative rights and preferences among
each series of Preferred Stock shall be such as are provided in any resolutions
adopted by the Board of Directors providing for the issue of such series of
Preferred Stock (each such resolution, a "Directors' Resolution"). The Board of
Directors is authorized to fix and determine such variations and the relative
rights and preferences as between series as shall be stated in a Directors'
Resolution. The preemptive rights of shareholders of Preferred Stock to acquire
authorized but unissued shares, or to acquire treasury shares, is expressly
denied. There are no shares of any series of SCI Preferred Stock currently
outstanding. However, in connection with the adoption of the Company's
shareholders' rights plans the Company has designated and reserved for issuance
upon exercise of rights granted to its shareholders 600,000 shares of Series C
Junior Participating Preferred Stock.
The Preferred Stock may be issued or sold to such persons and for such
consideration as may be determined from time to time by the Board of Directors
and, whether or not convertible into Common Stock, need not first be offered to
the holders of Common Stock, and when issued such shares of Preferred Stock
shall be considered fully paid and non-assessable.
The following summaries of certain provisions of the Preferred Stock do not
purport to be complete and are subject, and are qualified in their entirety by
reference, with respect to any particular series of Preferred Stock, to the
description of the terms thereof included in the applicable Prospectus
Supplement and to the applicable
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provisions of the Articles and the Company's Bylaws (the "Bylaws"). The
accompanying Prospectus Supplement with respect to any series of Preferred Stock
will set forth the following terms:
(a) The designation of such series;
(b) The number of shares constituting such series;
(c) The rate of dividends;
(d) The price at and the terms and conditions on which shares of such series may
be redeemed;
(e) The amount payable upon shares of such series in the event of involuntary
liquidation;
(f) The amount payable upon shares of each series in the event of voluntary
liquidation;
(g) Sinking fund provisions for the redemption or purchase of such series;
(h) The terms and conditions on which shares of such series may be converted;
and
(i) Any special rights of the shares of such series (and the accompanying
Prospectus Supplement may state that any of the terms set forth herein is
inapplicable to such series).
DIVIDENDS
The Preferred Stock of each series will be entitled to receive dividends, when
and as declared by the Board of Directors, at the rate and on such other terms
and conditions as may be fixed for such series, in preference to dividends on
the Common Stock or on other shares of capital stock of the Company ranking
junior to the Preferred Stock as to dividends ("Junior Stock").
DIVIDEND PREFERENCE
Subject to such further conditions or restrictions as may be imposed in any
Directors' Resolution, so long as any shares of Preferred Stock are outstanding,
the Company will not declare or pay any dividend, in cash or stock or otherwise
(other than dividends payable in shares of Junior Stock), on any shares of
Junior Stock or make any distribution upon or purchase or redeem or otherwise
acquire for a valuable consideration any shares of Junior Stock (a) unless all
dividends for Preferred Stock for all past dividend periods will have been paid
or declared and a sum sufficient for the payment thereof set apart for payment
and be in the process of payment, and the full dividend thereon for the current
dividend period will have been paid or declared, and (b) unless, as to each
series of the Preferred Stock for which a sinking fund will have been provided,
the Company will have retired the number of shares of Preferred Stock of such
series required to have been retired for the sinking fund or otherwise will have
met the obligations of said sinking fund.
REDEMPTION
Subject to such further conditions or restrictions as may be imposed in any
Directors' Resolution, the shares of any series of Preferred Stock will be
subject to redemption in whole or in part at the applicable redemption price as
provided for such series on the terms and conditions and upon notice as set
forth in the applicable Prospectus Supplement.
Notice of any such redemption will be given to each holder of shares being
called, either personally or by mail, not less than 20 nor more than 50 days
before the date fixed for redemption. If mailed, such notice will be deemed to
be delivered when deposited in the United States mail addressed to the
shareholder at the address as it appears on the stock transfer book of the
Company, with postage thereon prepaid.
If less than all outstanding shares of the series are to be redeemed, the shares
to be redeemed will be selected for redemption ratably or by lot in such manner
as may be prescribed by resolution of the Board of Directors. The notice of
redemption will set forth the designation of the series of which the shares to
be redeemed constitute a part, the date fixed for redemption, the redemption
price, the place at which the shareholders may obtain payment of the redemption
price upon the surrender of their respective share certificates and will include
a
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statement with respect to the existence of any right of conversion with respect
to the shares to be redeemed and the period within which such right may be
exercised.
The Company may, on or prior to the date fixed for redemption of any shares of
Preferred Stock, deposit with any bank or trust company in Texas, or any bank or
trust company in the United States, duly appointed and acting as transfer agent
for the Company, as a trust fund, a sum sufficient to redeem shares called for
redemption with irrevocable instructions and authority to such bank or trust
company to give or complete the notice of redemption thereof and to pay, on or
after the date fixed for such redemption, to the respective holders of the
shares as evidenced by a list of holders, the redemption price upon the
surrender of their respective share certificates. Thereafter, from and after the
date fixed for redemption, such shares will be redeemed and dividends thereon
will cease to accrue after such date fixed for redemption. Such deposit will be
deemed to constitute full payment of such shares to their holders. Thereafter,
such shares will no longer be deemed to be outstanding, and the holders thereof
will cease to be shareholders with respect to such shares, and will have no
rights with respect thereto except the right to receive from the bank or trust
company payment of the redemption price of such shares without interest, upon
the surrender of their respective certificates therefor, and any right to
convert such shares which may exist. In case the holders of such shares will
not, within six years after such deposit, claim the amount deposited for
redemption thereof, such bank or trust company will upon demand pay over to the
Company the balance of such amounts so deposited to be held in trust in such
bank or trust company and such trust company thereupon will be relieved of all
responsibility to the holders thereof.
Any shares of Preferred Stock which are redeemed or purchased by the Company and
cancelled will be restored to the status of authorized but unissued shares and
may be reissued as shares of another series.
VOTING
The holders of the Preferred Stock together with the holders of the Common
Stock, all voting as one class, will possess voting power for the election of
directors and for all other purposes, subject to such limitations as may be
imposed by law and by any provision of the Articles. In the exercise of its
voting power, the Preferred Stock will be entitled to one vote for each share
held.
SPECIAL DIRECTORS
Whenever, at any time or times, dividends payable on any series of Preferred
Stock are in arrears in an aggregate amount equivalent as to such series to six
full dividends, there will be vested in the holders of shares of all outstanding
Preferred Stock, voting as one class and with one vote for each share, the right
to elect two directors of the Company. Such right of the holders of Preferred
Stock to vote for the election of two directors may be exercised at any annual
meeting or at any special meeting called for such purpose, or at any adjournment
thereof, until all arrearages and dividends on the outstanding shares of
Preferred Stock have been paid in full or declared and funds sufficient for the
payment thereof deposited in trust, and when so paid or provided for, then such
right will cease. So long as such right to vote continues, the Secretary of the
Company may call, and upon written request of the holders of record of ten per
cent or more of the outstanding Preferred Stock, addressed to the Secretary at
the principal office of the Company, will call a special meeting of the holders
of Preferred Stock for the election of such two directors. Such meeting will be
held within 50 days after delivery of such request to such Secretary, at the
place and upon the notice provided by law and in the Bylaws for the holding of
meeting of its shareholders. If at any such meeting or any adjournment thereof
the holders of at least a majority of the then outstanding shares of Preferred
Stock then entitled to vote in such election are present or represented by
proxy, then, by vote of the holders of at least a majority of all such shares of
Preferred Stock present or represented in such meeting, the then authorized
number of directors of the Company will be increased by two and the holders of
such shares of Preferred Stock will be entitled to elect such two additional
directors. Directors so elected will serve until the next annual meeting or
until their successors are elected and will qualify; provided, however, that
whenever all arrearages and dividends on all outstanding shares of Preferred
Stock have been paid or declared and funds sufficient for the payment thereof
deposited in trust, the term of the office of the persons so elected as
directors will forthwith terminate, and the number of the whole Board of
Directors of the Company will be reduced accordingly. In case of any vacancy
occurring among the directors so elected, the remaining director who has been so
elected may appoint a successor to hold office for the unexpired term of the
director whose place is
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vacant. If both directors so elected by the holders of the Preferred Stock cease
to serve as directors before their term expires, the holders of Preferred Stock
then outstanding may, at a special meeting of such holders called as provided in
the Articles, elect successors to hold office for the unexpired terms of the
directors whose places are vacant. In any vote for directors as provided in the
Articles, each share of Preferred Stock will be entitled to vote.
APPROVAL OF CHANGES
The Company will not, without the approval (by vote at a meeting or by consent
in writing) of the holders of at least two-thirds of the outstanding shares of
Preferred Stock and subject to the provisions in the Articles with respect to
certain additional supermajority voting requirements:
(i) Amend or repeal any provision of, or add any provision to the Articles or
Bylaws if such action would alter or change the preferences, rights, privileges
or powers of, or the restrictions provided for the benefit of, the Preferred
Stock; or
(ii) Authorize or create shares of any class of stock having any preference or
priority as to dividends, assets or other characteristics superior to the
Preferred Stock, or authorize or create shares of stock of any class or any
bonds, indentures, notes or other obligations convertible into or exchangeable
for or having option or rights to purchase, any shares of stock having any such
preference or priority; or
(iii) Reclassify any Junior Stock into Preferred Stock or into shares having any
preference or priority as to dividends, assets or any other characteristics
superior to the Preferred Stock; or
(iv) Increase the aggregate number of authorized shares of Preferred Stock or
create a new class of shares having rights and preferences equal to the shares
of Preferred Stock.
LIQUIDATION PREFERENCE
In the event of any liquidation, dissolution or winding up of the Company, the
Preferred Stock of each series shall be entitled to payment of such amount or
amounts in preference to any payment on Junior Stock as shall be provided in the
Directors' Resolution providing for the issuance of such shares of Preferred
Stock. In any such event, if the assets available for distribution shall be
insufficient to permit payment of the full preferential amount to all holders of
Preferred Stock, then distribution shall be made ratably among such holders
according to the amount due to each.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue warrants (which may be titled either "options" or
"warrants") for the purchase of Common Stock (the "Common Stock Warrants"). The
Common Stock Warrants may be issued independently or together with any
Securities offered by any Prospectus Supplement and may be attached to or
separate from such Securities. Each series of Common Stock Warrants will be
issued under a separate warrant agreement (a "Warrant Agreement") to be entered
into between the Company and a bank or trust company, as Warrant Agent, all as
set forth in the Prospectus Supplement relating to the particular issue of
offered Common Stock Warrants. The Warrant Agent will act solely as an agent of
the Company in connection with the Common Stock Warrant Certificates and will
not assume any obligation or relationship of agency or trust for or with any
holders of Common Stock Warrant Certificates or beneficial owners of Common
Stock Warrants. The form of Warrant Agreement, including the form of Common
Stock Warrant Certificate representing the Common Stock Warrants, is filed as an
exhibit to the Registration Statement to which this Prospectus pertains. The
following summaries of certain provisions of the form of Warrant Agreement and
Common Stock Warrant Certificate do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all the provisions of
the Warrant Agreement and the Common Stock Warrant Certificate.
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GENERAL
Reference is made to the accompanying Prospectus Supplement relating to the
Common Stock Warrants for the following terms of the Common Stock Warrants:
(i) the offering price;
(ii) the number of shares of Common Stock purchasable upon exercise of each such
Common Stock Warrant and the price at which such number of shares of Common
Stock may be purchased upon such exercise;
(iii) the date on which the right to exercise such Common Stock Warrants shall
commence and the date on which such right shall expire (the "Expiration Date");
and
(iv) any other terms of such Common Stock Warrants (and the accompanying
Prospectus Supplement may state that any of the terms set forth herein is
inapplicable to such series).
Common Stock Warrants for the purchase of Common Stock will be offered and
exercisable for U.S. dollars only and will be in registered form only.
Common Stock Warrant Certificates may be exchanged for new Common Stock Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration or transfer, and may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement. Prior to the exercise of any Common Stock
Warrants, holders of such Common Stock Warrants will not have any rights of
holders of the Common Stock purchasable upon such exercise, including the right
to receive payments of dividends, if any, on the Common Stock purchasable upon
such exercise or to exercise any applicable right to vote.
EXERCISE OF COMMON STOCK WARRANTS
Each Common Stock Warrant will entitle the holder thereof to purchase such
shares of Common Stock at such exercise price as shall in each case be set forth
in, or calculable from, the Prospectus Supplement relating to the offered Common
Stock Warrants. After the close of business on the Expiration Date (or such
later date to which such Expiration Date may be extended by the Company)
unexercised Common Stock Warrants will become void.
Common Stock Warrants may be exercised by delivering to the Warrant Agent
payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Common Stock purchasable upon such exercise together
with certain information set forth on the reverse side of the Common Stock
Warrant Certificate. Common Stock Warrants will be deemed to have been exercised
upon receipt of payment of the exercise price, subject to the receipt, within
five business days, of the Common Stock Warrant Certificate evidencing such
Common Stock Warrants. Upon receipt of such payment and the Common Stock Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver the
Common Stock purchasable upon such exercise. If fewer than all of the Common
Stock Warrants represented by such Common Stock Warrant Certificate are
exercised, a new Common Stock Warrant Certificate will be issued for the
remaining amount of Common Stock Warrants.
AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENT
The Warrant Agreement for a series of Common Stock Warrants may be amended or
supplemented without the consent of the holders of the Common Stock Warrants
issued thereunder to effect changes that are not inconsistent with the
provisions of the Common Stock Warrants and that do not adversely affect the
interests of the holders of the Common Stock Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the exercise
price of, and the number of shares of Common Stock covered by, a Common Stock
Warrant are subject to adjustment in certain events,
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including: (i) the issuance of Common Stock as a dividend or distribution on the
Common Stock; (ii) subdivisions and combinations of the Common Stock; (iii) the
issuance to all holders of Common Stock of certain rights or warrants entitling
them to subscribe for or purchase Common Stock within 45 days after the date
fixed for the determination of the stockholders entitled to receive such rights
or warrants, at less than the current market price (as defined in the Warrant
Agreement for such series of Common Stock Warrants); and (iv) the distribution
to all holders of Common Stock of evidences of indebtedness or assets of the
Company (excluding certain cash dividends and distributions described below) or
rights or warrants (excluding those referred to above). In the event that the
Company shall distribute any rights or warrants to acquire capital stock
pursuant to clause (iv) above (the "Capital Stock Rights"), pursuant to which
separate certificates representing such Capital Stock Rights will be distributed
subsequent to the initial distribution of such Capital Stock Rights (whether or
not such distribution shall have occurred prior to the date of the issuance of a
series of Common Stock Warrants), such subsequent distribution shall be deemed
to be the distribution of such Capital Stock Rights; provided that the Company
may, in lieu of making any adjustment in the exercise price of, and the number
of shares of Common Stock covered by, a Common Stock Warrant upon a distribution
of separate certificates representing such Capital Stock Rights, make proper
provision so that each holder of such a Common Stock Warrant who exercises such
Common Stock Warrant (or any portion thereof) (a) before the record date for
such distribution of separate certificates shall be entitled to receive upon
such exercise shares of Common Stock issued with Capital Stock Rights and (b)
after such record date and prior to the expiration, redemption or termination of
such Capital Stock Rights shall be entitled to receive upon such exercise, in
addition to the shares of Common Stock issuable upon such exercise, the same
number of such Capital Stock Rights as would a holder of the number of shares of
Common Stock that such Common Stock Warrant so exercised would have entitled the
holder thereof to acquire in accordance with the terms and provisions applicable
to the Capital Stock Rights if such Common Stock Warrant was exercised
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Company or any majority owned subsidiary shall
not be deemed outstanding for the purpose of any adjustment required pursuant to
clause (iv) above.
No adjustment in the exercise price of, and the number of shares of Common Stock
covered by, a Common Stock Warrant will be made for regular quarterly or other
periodic or recurring cash dividends or distributions or for cash dividends or
distributions to the extent paid from retained earnings. No adjustment will be
required unless such adjustment would require a change of at least 1% in the
exercise price then in effect; provided that any such adjustment not so made
will be carried forward and taken into account in any subsequent adjustment; and
provided further that any such adjustment not so made shall be made no later
than three years after the occurrence of the event requiring such adjustment to
be made or carried forward. Except as stated above, the exercise price of, and
the number of shares of Common Stock covered by, a Common Stock Warrant will not
be adjusted for the issuance of Common Stock or any securities convertible into
or exchangeable for Common Stock, or securities carrying the right to purchase
any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Company or (iii) a sale or conveyance to
another corporation of the property and assets of the Company as an entirety or
substantially as an entirety, in each case as a result of which holders of the
Company's Common Stock shall be entitled to receive stock, securities, other
property or assets (including cash) with respect to or in exchange for such
Common Stock, the holders of the Common Stock Warrants then outstanding will be
entitled thereafter to convert such Common Stock Warrants into the kind and
amount of shares of stock and other securities or property which they would have
received upon such reclassification, change, consolidation, merger, sale or
conveyance had such Common Stock Warrants been exercised immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance.
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DESCRIPTION OF THE LLC PREFERRED SECURITIES
The following is a summary of certain terms and provisions of the LLC Preferred
Securities offered hereby. Reference is made to the LLC Articles, the
Regulations of SCI Finance (the "LLC Regulations") and the amendment to the LLC
Regulations adopted or to be adopted by the Manager establishing the rights,
preferences, privileges, limitations and restrictions relating to the LLC
Preferred Securities (the "Declaration"). The summaries set forth below and in
the accompanying Prospectus Supplement address the material terms of the LLC
Preferred Securities of any particular series but do not purport to be complete
and are subject to, and qualified in their entirety by reference to, the LLC
Articles, the LLC Regulations and the Declaration. Capitalized terms used in the
summaries below and not otherwise defined herein have the respective meanings
set forth in the LLC Articles, the LLC Regulations and the Declaration.
GENERAL
SCI Finance is authorized to issue up to 7,000,000 LLC Preferred Shares, in one
or more series or classes, with such dividend rights, liquidation preferences
per share, redemption provisions, voting rights, conversion or exchange rights
and other rights, preferences, privileges, limitations and restrictions as are
set forth in the LLC Articles, the LLC Regulations and the Declaration adopted
or to be adopted by the Manager. All of the LLC Preferred Shares which may be
issued in one or more series or classes, including the LLC Preferred Securities,
will rank pari passu with each other with respect to participation in profits
and assets. The LLC Articles and the LLC Regulations as currently in effect do
not permit the issuance of any preference interests ranking, as to participation
in the profits or the assets of SCI Finance, senior to the LLC Preferred Shares.
Reference is made to the accompanying Prospectus Supplement relating to the LLC
Preferred Securities for the following terms of the LLC Preferred Securities:
(a) title;
(b) the dividend terms (when dividends will accrue and be payable);
(c) the optional redemption provisions and the Redemption Price;
(d) the liquidation preference per LLC Preferred Security;
(e) the conversion rights for, and conversion price per share of, SCI Common
Stock;
(f) certain provisions relating to Non-Stock or Common Stock Fundamental Changes
(as defined below);
(g) the initial Reference Market Price (as defined below);
(h) book entry provisions, if other than as set forth below; and
(i) any other terms of the series (and the accompanying Prospectus Supplement
may state that any of the terms set forth herein is inapplicable to such
series).
DIVIDENDS
Cumulative dividends on the LLC Preferred Securities will accrue and be payable
as set forth in the accompanying Prospectus Supplement, when, as and if declared
by SCI Finance, except as otherwise described below.
The annual dividend payable on each LLC Preferred Security will be fixed as set
forth in the accompanying Prospectus Supplement. The amount of dividends is
computed on the basis of twelve 30-day months and a 360-day year and, for any
period shorter than a full monthly dividend period, will be computed on the
basis of the actual number of days elapsed in such period. Payment of dividends
generally is limited to the amount of funds held by SCI Finance and legally
available therefor.
Dividends declared on the LLC Preferred Securities are payable to the record
holders thereof as they appear on the register for the LLC Preferred Securities
on the record date, which will be one Business Day prior to the relevant payment
date. In the event that any date on which dividends are payable on the LLC
Preferred
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Securities is not a Business Day, then payment of the dividend payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. The term "Business Day" shall mean any
day other than a day on which banking institutions in The City of New York are
authorized or required by law to close.
Dividends on the LLC Preferred Securities of any series will be cumulative
(whether or not declared and whether or not there are profits, surplus or other
funds legally available for the payment of dividends). Dividends on the LLC
Preferred Securities must be declared by SCI Finance, by action of the Manager,
in any calendar year or portion thereof to the extent that the Manager
reasonably anticipates that at the time of payment SCI Finance will have, and
must be paid by SCI Finance to the extent that at the time of proposed payment
SCI Finance has, (x) funds legally available for the payment of such dividends
and (y) cash on hand sufficient to permit such payments. It is anticipated that
SCI Finance's earnings will result almost exclusively from payments under the
Loans of proceeds from the sale of the LLC Preferred Securities and the issuance
of LLC Common Shares (as described under "-- Description of the Loans"). SCI
Limited will have the right to extend interest payments on the Loans for up to
60 monthly interest payment periods over the term of the Loans. Interest shall
accrue on and be payable in respect of any dividend payment on the LLC Preferred
Securities which is in arrears at the interest rate payable in respect of the
Loans to the extent permitted by applicable law.
CERTAIN RESTRICTIONS ON SCI FINANCE
If dividends have not been paid in full on the LLC Preferred Securities, SCI
Finance may not:
(i) pay, or declare and set aside for payment, any dividends on any other LLC
Preferred Shares ranking pari passu with the LLC Preferred Securities as regards
participation in profits of SCI Finance ("SCI Finance Dividend Parity Shares"),
unless the amount of any dividends declared on any SCI Finance Dividend Parity
Shares is paid on SCI Finance Dividend Parity Shares and the LLC Preferred
Securities on a pro rata basis on the date such dividends are paid on such SCI
Finance Dividend Parity Shares, so that
(x)(a) the aggregate amount of dividends paid on the LLC Preferred
Securities bears the same ratio to (b) the aggregate amount of dividends
paid on such SCI Finance Dividend Parity Shares as
(y)(a) the aggregate amount of all accumulated arrears of unpaid dividends
in respect of the LLC Preferred Securities bears to (b) the aggregate
amount of all accumulated arrears of unpaid dividends in respect of such
SCI Finance Dividend Parity Shares;
(ii) pay, or declare and set aside for payment, any dividends on any interests
in SCI Finance ranking junior to the LLC Preferred Securities as to dividends
("SCI Finance Dividend Junior Shares"); or
(iii) call for redemption or redeem, purchase or otherwise acquire any SCI
Finance Dividend Parity Shares or SCI Finance Dividend Junior Shares or any LLC
Preferred Securities other than (x) the redemption of all outstanding LLC
Preferred Securities at the Redemption Price (as defined below), (y) pursuant to
a pro rata redemption of the LLC Preferred Securities at the Redemption Price or
(z) pursuant to a purchase or exchange offer made on the same terms to all
holders of the LLC Preferred Securities, it being understood that this provision
shall not limit the rights of holders of LLC Preferred Securities to exercise
their conversion rights
until, in each case, such time as all accumulated arrears of unpaid dividends
(whether or not declared) on the LLC Preferred Securities shall have been paid
in full for all dividend periods terminating on or prior to, in the case of
clauses (i) and (ii), such payment, and in the case of clause (iii), the date of
such call, redemption, purchase or acquisition. As of the date of this
Prospectus, SCI Finance has no SCI Finance Dividend Parity Shares outstanding
and has no plans to issue such shares.
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MANDATORY REDEMPTION
The proceeds from any prepayment or repayment of principal on the Loans to SCI
Limited of proceeds from the issuance and sale of LLC Preferred Securities and
LLC Common Shares must be applied to redeem the LLC Preferred Securities at the
Redemption Price upon not less than 30 nor more than 60 days' notice in writing
by SCI Finance to the holders of the LLC Preferred Securities except at final
maturity of the Loans, in which case the redemption of LLC Preferred Securities
will occur as soon as practicable thereafter.
OPTIONAL REDEMPTION
The LLC Preferred Securities are redeemable, at the option of SCI Finance
subject to the prior consent of the Manager, in whole or in part from time to
time, on or after the date and subject to the terms set forth in the
accompanying Prospectus Supplement, upon not less than 30 nor more than 60 days'
notice in writing by SCI Finance to the holders of LLC Preferred Securities, at
the prices set forth in the accompanying Prospectus Supplement (the "Redemption
Price"), in each case plus accrued and unpaid dividends (whether or not
declared) to the date fixed for redemption.
In the event that fewer than all the outstanding LLC Preferred Securities are to
be redeemed, the LLC Preferred Securities to be redeemed will be selected as
described under "-- Book-Entry Issuance; the Depository Trust Company" below,
pro rata as nearly as practicable or by lot, or by such other method as the
Paying and Conversion Agent may determine to be fair and appropriate. In the
event that any monthly dividend payable on the LLC Preferred Securities is in
arrears, LLC Preferred Securities may not be redeemed unless by conversion of
LLC Preferred Securities into shares of SCI Common Stock, and neither SCI nor
SCI Finance nor any other subsidiary of SCI may purchase or acquire any of such
shares otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of record of the LLC Preferred Securities.
If SCI Finance gives a notice of redemption in respect of LLC Preferred
Securities, then, by 12:00 noon, New York time, on the redemption date, SCI
Finance will irrevocably deposit with the Paying and Conversion Agent or the
Depository Trust Company ("DTC"), as the case may be, funds sufficient to pay
the Redemption Price and will give the Paying and Conversion Agent or DTC, as
the case may be, irrevocable instructions and authority to pay the Redemption
Price to the holders thereof. If notice of redemption shall have been given and
funds deposited as required, then upon the date of such deposit, all rights of
holders of LLC Preferred Securities so called for redemption will cease, except
the right of the holders of such shares to receive the Redemption Price, but
without interest, and such shares will cease to be outstanding. In the event
that any date on which any payment in respect of the redemption of LLC Preferred
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. In the event that payment of the Redemption
Price in respect of LLC Preferred Securities is improperly withheld or refused
and not paid either by SCI Finance or by SCI pursuant to the Guarantee (as
defined below), dividends on such shares will continue to accrue, at the then-
applicable rate, from the original redemption date to the date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
Subject to the foregoing, SCI or its subsidiaries may at any time and from time
to time purchase outstanding LLC Preferred Securities by tender, in the open
market or by private agreement.
TAX EVENT REDEMPTION
If a Tax Event (as defined below) shall occur and be continuing, the LLC
Preferred Securities will be subject to redemption, at the option of SCI
Finance, in whole but not in part, upon not less than 30 nor more than 60 days'
notice in writing by the Company to the holders of such LLC Preferred
Securities, such notice to be given within 90 days following the occurrence of
such Tax Event at a redemption price or prices set forth in the accompanying
Prospectus Supplement.
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"Tax Event" means, with respect to any LLC Preferred Securities, that SCI shall
have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters to the effect that, on or after the date of the
accompanying Prospectus Supplement relating to such LLC Preferred Securities, as
a result of (a) any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) any amendment
to, or change in, an interpretation or application of any such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any official interpretation
or pronouncement that provides for a position with respect to such laws or
regulations that differs from the generally accepted position or (d) any action
taken by any governmental agency or regulatory authority, which amendment or
change is enacted, promulgated, issued or effective or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after the date of such accompanying Prospectus Supplement, there is more than
an insubstantial risk that (i) SCI Finance is subject to federal income tax with
respect to interest accrued or received on the Loans or (ii) SCI Finance is
subject to liability for more than a de minimis amount of taxes, duties or other
governmental charges.
LIQUIDATION DISTRIBUTION
In the event of any voluntary or involuntary liquidation, dissolution or winding
up of SCI Finance, the holders of LLC Preferred Securities at the time
outstanding will be entitled to receive out of the assets of SCI Finance legally
available for distribution to shareholders, before any distribution of assets is
made to holders of the LLC Common Shares or any other class of interests in SCI
Finance ranking junior to the LLC Preferred Securities as regards participation
in assets of SCI Finance, but together with the holders of every other series of
LLC Preferred Shares outstanding, if any, ranking pari passu with the LLC
Preferred Securities as regards participation in the assets of SCI Finance ("SCI
Finance Liquidation Parity Shares"), an amount equal, in the case of the holders
of the LLC Preferred Securities, to the aggregate of the liquidation preference
per LLC Preferred Security set forth in the accompanying Prospectus Supplement
and all accumulated and unpaid dividends (whether or not declared) to the date
of payment (the "Liquidation Distribution"). If, upon any such liquidation, the
Liquidation Distribution can be paid only in part because SCI Finance has
insufficient assets available to pay in full the aggregate Liquidation
Distribution and the aggregate maximum liquidation distributions on SCI Finance
Liquidation Parity Shares, then the amounts payable by SCI Finance on the LLC
Preferred Securities and on such SCI Finance Liquidation Parity Shares shall be
paid on a pro rata basis, so that
(i)(x) the aggregate amount paid in respect of the Liquidation Distribution
bears the same ratio to (y) the aggregate amount paid as liquidation
distributions (including accrued and unpaid dividends) on SCI Finance
Liquidation Parity Shares as
(ii)(x) the aggregate Liquidation Distribution bears to (y) the aggregate
liquidation preference (including accrued and unpaid dividends) on SCI Finance
Liquidation Parity Shares.
Pursuant to the LLC Regulations, SCI Finance will be considered to have
commenced voluntary wind-up and dissolution automatically (i) when the period
fixed for the duration of SCI Finance expires, (ii) if the holders of the LLC
Common Shares pass a resolution requiring SCI Finance to be wound up and
dissolved, (iii) upon the bankruptcy, resignation, withdrawal, expulsion,
termination, cessation or dissolution of SCI or the Manager (if other than SCI),
(iv) upon the happening of any event that would cause a holder of LLC Common
Shares to cease to be a holder thereof or (v) if SCI transfers any LLC Common
Shares or if all of the LLC Common Shares are redeemed, repurchased or cancelled
by SCI Finance.
VOTING RIGHTS
Except as provided below and under "-- Description of the
Guarantee -- Amendments and Assignments" and "-- Description of the
Loans -- Miscellaneous," the holders of the LLC Preferred Securities will have
no voting rights.
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If (i) SCI Finance fails to pay dividends in full on the LLC Preferred
Securities (whether or not there are funds legally available therefor) for more
than 60 consecutive monthly dividend periods, (ii) an Event of Default (as
defined in the Loan Agreement relating to the Loans) occurs and is continuing on
the Loans or (iii) SCI is in default under any of its payment or other
obligations under the Payment, Guarantee and Conversion Agreement entered into
by the Company for the benefit of each holder of LLC Securities (the
"Guarantee"), then the holders of outstanding LLC Preferred Securities, together
with the holders of any other series of LLC Preferred Shares having the right to
vote for the appointment of a trustee in such event, acting as a single class,
will be entitled, by resolution passed by the holders of a majority in
liquidation preference (plus all accrued and unpaid dividends per share) of such
shares present in person or represented by proxy at a meeting of such holders
convened for such purpose (or by written consent), to appoint and authorize a
trustee to enforce SCI Finance's rights as a creditor under the Loans against
SCI Limited and SCI (including the acceleration of principal and accrued
interest on the Loans), enforce the obligations undertaken by SCI under the
Guarantee and the Liability Assumption Agreement (as defined below) and declare
and pay dividends on the LLC Preferred Securities. For purposes of determining
whether SCI Finance has failed to pay dividends in full for more than 60
consecutive monthly dividend periods, dividends shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full cumulative
dividends have been or contemporaneously are declared and paid with respect to
all monthly dividend periods terminating on or prior to the date of payment of
such full cumulative dividends. Not later than 45 days after such entitlement
arises, the Manager will convene a meeting for the above purposes. If the
Manager fails to convene such meeting within such 45-day period, the holders of
10% in liquidation preference (plus all accrued and unpaid dividends per share)
of the outstanding LLC Preferred Securities and such other LLC Preferred Shares
will be entitled to convene such meeting. The provisions of the LLC Regulations
regarding the convening and conduct of meetings will apply with respect to any
such meeting. Any trustee so appointed shall vacate office immediately with
respect to the LLC Preferred Securities, if SCI Finance (or SCI pursuant to the
Guarantee) shall have paid in full all accrued and unpaid dividends on the LLC
Preferred Securities or such default or breach by SCI shall have been cured.
If any resolution is presented to the members of SCI Finance providing for, or
the Manager otherwise proposes to effect (it being understood that the automatic
dissolution and liquidation events described in clauses (iii), (iv) and (v)
under "-- Liquidation Distribution" above will not be deemed to be a proposal by
the Manager, and are not subject to the approval procedures described in this
paragraph), (x) any amendment of the LLC Articles, the LLC Regulations, the
Declaration or other action that adversely varies or abrogates the rights,
preferences or privileges of the LLC Preferred Securities (including, without
limitation, the authorization or issuance of any interests in SCI Finance
ranking, as to participation in the profits or assets of SCI Finance, senior to
the LLC Preferred Securities, or the issuance of any debt by SCI Finance), (y)
the liquidation, dissolution or winding up of SCI Finance or (z) the
modification of the provisions of the LLC Articles and the LLC Regulations which
absolutely prohibit transfers of LLC Common Shares, then the holders of
outstanding LLC Preferred Shares of all series (and, in the case of a resolution
described in clause (x) above which would equally adversely affect the rights,
preferences or privileges of any SCI Finance Dividend Parity Shares or any SCI
Finance Liquidation Parity Shares, such SCI Finance Dividend Parity Shares or
such SCI Finance Liquidation Parity Shares, as the case may be, or, in the case
of any resolution described in clause (y) or (z) above, all SCI Finance
Liquidation Parity Shares) will be entitled to vote together as a class on such
resolution or action of the Manager (but not on any other resolution or action),
and such resolution or action shall not be effective except with the approval of
the holders of 66 2/3% in liquidation preference (plus all accrued and unpaid
dividends) of such outstanding shares; provided, however, that no such approval
or ratification shall be required if the liquidation, dissolution and winding up
of SCI Finance is proposed or initiated upon the initiation of proceedings, or
after proceedings have been initiated, for the liquidation, dissolution or
winding up of SCI or the Manager (if other than SCI).
No vote or consent of the holders of the LLC Preferred Securities will be
required for SCI Finance to redeem and cancel LLC Preferred Securities in
accordance with the LLC Regulations and the Declaration.
The rights attached to the LLC Preferred Securities will be deemed not to be
varied by the creation or issue of, and no vote will be required for the
creation of, any further series of LLC Preferred Shares or any other interests
in SCI Finance ranking as regards participation in the profits or assets of SCI
Finance pari passu with or junior to the LLC Preferred Securities.
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Any required approval of holders of LLC Preferred Securities may be given at a
meeting of such holders convened for such purpose, at a general meeting of
shareholders of SCI Finance or pursuant to written consent. SCI Finance will
cause a notice of any meeting at which holders of the LLC Preferred Securities
are entitled to vote, or of any matter upon which action by written consent of
such holders is to be taken, to be mailed to each holder of record of the LLC
Preferred Securities. Each such notice will include a statement setting forth
(i) the date of such meeting or the date by which such action is to be taken,
(ii) a description of any resolution proposed for adoption at such meeting on
which such holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies or written
consents.
Notwithstanding that holders of LLC Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the LLC Preferred
Securities and such other LLC Preferred Shares entitled to vote or consent with
such LLC Preferred Securities as a single class outstanding at such time that
are owned by SCI or any entity owned 50% or more by SCI, either directly or
indirectly, shall not be entitled to vote or consent and shall, for the purposes
of such vote or consent, be treated as if they were not outstanding.
CONVERSION RIGHTS
Except as otherwise provided in the Prospectus Supplement, the holders of the
LLC Preferred Securities will have the conversion rights as set forth below:
Each LLC Preferred Security will be convertible at any time at the option of the
holder thereof into such number of whole shares of SCI Common Stock as is equal
to the per share liquidation preference of the LLC Preferred Securities
surrendered for conversion divided by the initial conversion price per share of
SCI Common Stock set forth in the accompanying Prospectus Supplement, subject to
adjustment as described below. LLC Preferred Securities called for redemption
will not be convertible after the close of business on the second Business Day
preceding the date fixed for redemption, unless SCI Finance defaults in payment
of the applicable Redemption Price or SCI defaults in its obligation to deliver
SCI Common Stock in exchange for shares of LLC Preferred Securities previously
surrendered for conversion. No fractional shares of SCI Common Stock will be
issued as a result of conversion, but in lieu thereof, in the sole discretion of
SCI, either (i) such fractional interest will be rounded upon the next whole
share or (ii) an appropriate amount will be paid in cash by SCI.
The initial conversion price is subject to adjustment (under formulae set forth
in the Declaration) in certain events, including: (i) the issuance of SCI Common
Stock as a dividend or distribution on SCI Common Stock; (ii) certain
subdivisions and combinations of the SCI Common Stock; (iii) the issuance to all
holders of SCI Common Stock of certain rights or warrants to purchase SCI Common
Stock; (iv) the distribution to all holders of SCI Common Stock of (A) shares of
capital stock of SCI (other than SCI Common Stock), (B) evidences of
indebtedness of SCI and/or (C) other assets (including securities, but excluding
any rights or warrants referred to in clause (iii) above, any dividends or
distributions in connection with the liquidation, dissolution or winding-up of
SCI, any dividends payable solely in cash that may from time to time be fixed by
the Board of Directors of SCI and any dividends or distributions referred to in
clause (i) above); (v) distributions consisting of cash, excluding (a) any cash
dividends on the SCI Common Stock to the extent that the aggregate cash
dividends per share of SCI Common Stock in any consecutive 12-month period do
not exceed the greater of (x) the amount per share of SCI Common Stock of the
cash dividends paid on the SCI Common Stock in the immediately preceding
12-month period, to the extent that such dividends for the immediately preceding
12-month period did not require an adjustment of the conversion price pursuant
to this clause (v) (as adjusted to reflect subdivisions or combinations of the
SCI Common Stock), and (y) 15% of the average of the daily Closing Price (as
defined in the Declaration) of the SCI Common Stock for the ten consecutive
Trading Days (as defined in the Declaration) immediately prior to the date of
declaration of such dividend, and (b) any dividend or distribution in connection
with the liquidation, dissolution or winding up of SCI or a redemption of any
rights issued under a rights agreement (provided, however that no adjustment
shall be made pursuant to this clause (v) if such distribution would otherwise
constitute a Fundamental Change (as defined below) and be reflected in a
resulting adjustment described below); and (vi) payment in respect of a tender
or exchange offer by SCI or any subsidiary of SCI for SCI Common Stock to the
extent that the cash and value of any other consideration included in such
payment per share of SCI Common Stock exceeds (by more than 10%, with any
smaller excess being disregarded in computing the adjustment provided hereby)
the first
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reported sale price per share of SCI Common Stock on the Trading Day next
succeeding the Expiration Time (as defined in the Declaration) for such tender
or exchange offer. If any adjustment is required to be made as set forth in
clause (v) above as a result of a distribution which is a dividend described in
subclause (a) of clause (v) above, such adjustment would be based upon the
amount by which such distribution exceeds the amount of the dividend permitted
to be excluded pursuant to such subclause (a) of clause (v). If an adjustment is
required to be made as set forth in clause (v) above as a result of a
distribution which is not such a dividend, such adjustment would be based upon
the full amount of such distribution. If an adjustment is required to be made as
set forth in clause (vi) above, such adjustment would be calculated based upon
the amount by which the aggregate consideration paid for SCI Common Stock
acquired in the tender or exchange offer exceeds the value of such shares based
on the first reported sale price of the SCI Common Stock on the Trading Day next
succeeding the Expiration Time. In lieu of making such a conversion price
adjustment in the case of certain dividends or distributions, SCI may provide
that upon the conversion of LLC Preferred Securities the holder converting such
LLC Preferred Securities will receive, in addition to the shares of SCI Common
Stock of which such holder is entitled, the cash, securities or other property
which such holder would have received if such holder had, immediately prior to
the record date for such dividend or distribution, converted its LLC Preferred
Securities into SCI Common Stock.
SCI Finance from time to time may, to the extent permitted by law and with the
consent of the Manager, reduce the conversion price by any amount for any period
of at least 20 Business Days, in which case SCI Finance shall give at least 15
days' notice of such reduction to the holders of the LLC Preferred Securities.
SCI Finance may, at its option and with the consent of the Manager, make such
reduction in the conversion price, in addition to those set forth above, as SCI
Finance deems advisable to avoid or diminish any income tax to holders of SCI
Common Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for tax purposes or for any
other reasons.
In the event that SCI shall be a party to any transaction or series of
transactions constituting a Fundamental Change, including, without limitation,
(i) any recapitalization or reclassification of the SCI Common Stock (other than
a change in par value or as a result of a subdivision or combination of the SCI
Common Stock); (ii) any consolidation or merger of SCI with or into another
corporation as a result of which holders of SCI Common Stock shall be entitled
to receive securities or other property or assets (including cash) with respect
to or in exchange for the SCI Common Stock (other than a merger which does not
result in a reclassification, conversion, exchange or cancellation of
outstanding shares of SCI Common Stock); (iii) any sale or transfer of all or
substantially all of the assets of SCI; or (iv) any compulsory share exchange,
pursuant to any of which holders of SCI Common Stock shall be entitled to
receive other securities, cash or other property, then appropriate provision
shall be made so that the holder of each LLC Preferred Security then outstanding
shall have the right thereafter to convert such security only into (x) if any
such transaction constitutes a Non-Stock Fundamental Change (as defined below),
the kind and amount of the securities, cash or other property that would have
been receivable upon such recapitalization, reclassification, consolidation,
merger, sale, transfer or share exchange by a holder of the number of shares of
SCI Common Stock issuable upon conversion of such LLC Preferred Security
immediately prior to such recapitalization, reclassification, consolidation,
merger, sale, transfer or share exchange, after giving effect to any adjustment
in the conversion price in accordance with clause (i) of the following
paragraph, and (y) if any such transaction constitutes a Common Stock
Fundamental Change (as defined below), common stock of the kind received by
holders of SCI Common Stock as a result of such Common Stock Fundamental Change
in an amount determined in accordance with clause (ii) of the following
paragraph. The company formed by such consolidation or resulting from such
merger or which acquires such assets or which acquires the SCI Common Stock, as
the case may be, shall make provisions in its certificate or articles of
incorporation or other constituent document to establish such right. Such
certificate or articles of incorporation or other constituent document shall
provide for adjustments which, for events subsequent to the effective date of
such certificate or articles of incorporation or other constituent document,
shall be as nearly equivalent as practical to the relevant adjustments provided
for in the preceding paragraphs and in this paragraph.
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Notwithstanding any other provision in the preceding paragraphs, if any
Fundamental Change (as defined below) occurs, the conversion price in effect
will be adjusted immediately after that Fundamental Change as follows:
(i) in the case of a Non-Stock Fundamental Change, the conversion price per
share of SCI Common Stock immediately following such Non-Stock Fundamental
Change will be the lower of (A) the conversion price in effect immediately prior
to such Non-Stock Fundamental Change, but after giving effect to any other prior
adjustments effected pursuant to the preceding paragraphs, and (B) the result
obtained by multiplying the greater of the Applicable Price (as defined below)
or the then applicable Reference Market Price (as defined below) by a fraction
of which the numerator will be the liquidation preference of the LLC Preference
Securities as set forth in the applicable Prospectus Supplement and the
denominator of which will be the then current Redemption Price per LLC Preferred
Security (or, if such Redemption Price is to be determined prior to the date on
which the LLC Preferred Securities may first be called for redemption, the
prices set forth in the Prospectus Settlement); and
(ii) in the case of a Common Stock Fundamental Change, the conversion price per
share of SCI Common Stock immediately following the Common Stock Fundamental
Change will be the conversion price in effect immediately prior to the Common
Stock Fundamental Change, but after giving effect to any other prior adjustments
effected pursuant to the preceding paragraphs, multiplied by a fraction, the
numerator of which is the Purchaser Stock Price (as defined below) and the
denominator of which is the Applicable Price; provided, however, that in the
event of a Common Stock Fundamental Change in which (A) 100% of the value of the
consideration received by a holder of SCI Common Stock is common stock of the
successor, acquiror or other third party (and cash, if any, paid with respect to
any fractional interests in that common stock resulting from the Common Stock
Fundamental Change) and (B) all of the SCI Common Stock shall have been
exchanged for, converted into, or acquired for, common stock of the successor,
acquiror or other third party, the conversion price per share of SCI Common
Stock immediately following the Common Stock Fundamental Change shall be the
conversion price in effect immediately prior to the Common Stock Fundamental
Change multiplied by a fraction, the numerator of which is one (1) and the
denominator of which is the number of shares of common stock of the successor,
acquiror, or other third party received by a holder of one share of SCI Common
Stock as a result of the Common Stock Fundamental Change.
Depending upon whether the Fundamental Change is a Non-Stock Fundamental Change
or Common Stock Fundamental Change, a holder may receive significantly different
consideration upon conversion. In the event of a Non-Stock Fundamental Change,
the holder has the right to convert LLC Preferred Securities into the kind and
amount of shares of stock and other securities or property or assets (including
cash), except as otherwise provided above, as is determined by the number of
shares of SCI Common Stock receivable upon conversion at the conversion price as
adjusted in accordance with clause (i) of the preceding paragraph. However, in
the event of a Common Stock Fundamental Change in which less than 100% of the
value of the consideration received by a holder of SCI Common Stock is common
stock of the successor, acquiror or other third party, a holder of a LLC
Preferred Security who converts such share following the Common Stock
Fundamental Change will receive consideration in the form of such common stock
only, whereas a holder who converted such share prior to the Common Stock
Fundamental Change will have received consideration in the form of such common
stock as well as any other securities or assets (which may include cash)
issuable upon conversion of such LLC Preferred Security immediately prior to
such Common Stock Fundamental Change.
The term "Applicable Price" means (i) in the event of a Non-Stock Fundamental
Change in which the holders of SCI Common Stock receive only cash, the amount of
cash receivable by a holder of one share of SCI Common Stock and (ii) in the
event of any other Non-Stock Fundamental Change or any Common Stock Fundamental
Change, the average of the reported last sale price for one share of the SCI
Common Stock (determined as provided in the Declaration) during the ten Trading
Days immediately prior to the record date for the determination of the holders
of SCI Common Stock entitled to receive cash, securities, property or other
assets in connection with such Non-Stock Fundamental Change or Common Stock
Fundamental Change or, if there is no such record date, prior to the date on
which the holders of the SCI Common Stock will have the right to receive such
cash, securities, property or other assets.
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The term "Common Stock Fundamental Change" means any Fundamental Change in which
more than 50% of the value (as determined in good faith by SCI's Board of
Directors) of the consideration received by holders of SCI Common Stock pursuant
to such transaction consists of common stock that, for the ten consecutive
Trading Days immediately prior to such Fundamental Change, has been admitted for
listing or admitted for listing subject to notice of issuance on a national
securities exchange or quoted on the Nasdaq National Market; provided, however,
that a Fundamental Change will not be a Common Stock Fundamental Change unless
either (i) SCI continues to exist after the occurrence of such Fundamental
Change and the outstanding LLC Preferred Securities continue to exist as
outstanding LLC Preferred Securities, or (ii) the outstanding LLC Preferred
Securities continue to exist as LLC Preferred Securities and are convertible
into common stock of the successor to SCI.
The term "Fundamental Change" means the occurrence of any transaction or event
or series of transactions or events pursuant to which all or substantially all
of the SCI Common Stock is exchanged for, converted into, acquired for or
constitutes solely the right to receive cash, securities, property or other
assets (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise); provided, however, in the case of a plan involving more than one
such transaction or event, for purposes of adjustment of the conversion price,
such Fundamental Change will be deemed to have occurred when substantially all
of the SCI Common Stock received in such transaction has been exchanged for,
converted into, or acquired for or constitutes solely the right to receive cash,
securities, property or other assets but the adjustment shall be based upon the
consideration that the holders of SCI Common Stock received in the transaction
or event as a result of which more than 50% of the SCI Common Stock shall have
been exchanged for, converted into, or acquired for, or shall constitute solely
the right to receive such cash, securities, properties or other assets; and
provided further, that such term does not include (i) any transaction or event
in which SCI and/or any of its subsidiaries are the issuers of all the cash,
securities, property or other assets exchanged, acquired or otherwise issued in
the transaction or event, or (ii) any transaction or event in which the holders
of SCI Common Stock receive securities of an issuer other than SCI if,
immediately following such transaction or event, holders of SCI Common Stock
hold a majority of the securities having the power to vote normally in the
election of directors of such other issuer outstanding immediately following
such transaction or other event.
The term "Non-Stock Fundamental Change" means any Fundamental Change other than
a Common Stock Fundamental Change.
The term "Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change, the average of the reported last sale prices for one share
of the common stock received by holders of SCI Common Stock in such Common Stock
Fundamental Change during the ten Trading Days immediately prior to the record
date for the determination of the holders of SCI Common Stock entitled to
receive such common stock or, if there is no such record date, prior to the date
upon which the holders of SCI Common Stock shall have the right to receive the
common stock.
The term "Reference Market Price" will initially mean the price set forth in the
accompanying Prospectus Supplement (which unless otherwise specified in the
accompanying Prospectus Supplement will be 66 2/3% of the last reported sale
price for SCI Common Stock on the New York Stock Exchange on the date of such
Prospectus Supplement) and, in the event of any adjustment to the conversion
price other than as a result of a Fundamental Change, the Reference Market Price
will also be adjusted so that the ratio of the Reference Market Price to the
conversion price after giving effect to any adjustment will always be the same
as the ratio of the initial Reference Market Price to the initial conversion
price of the LLC Preferred Securities.
No adjustment in the conversion price will be required unless the adjustment
would require a change of at least 1% in the conversion price then in effect;
provided, however, that any adjustment that would otherwise be required to be
made shall be carried forward and taken into account in any subsequent
adjustment.
The holders of LLC Preferred Securities at the close of the business on a
dividend payment record date will be entitled to receive the dividend payment on
those shares on the corresponding dividend payment date notwithstanding the
subsequent conversion thereof or SCI Finance's default in payment of the
dividend due on that dividend payment date. A holder of LLC Preferred Securities
on a dividend payment record date who (or
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whose transferee) tenders any shares for conversion on a dividend payment date
will receive the dividend payable by SCI Finance on LLC Preferred Securities on
that date.
BOOK-ENTRY ISSUANCE; THE DEPOSITORY TRUST COMPANY
DTC will act only as securities depository for the LLC Preferred Securities. The
LLC Preferred Securities will be issued as fully-registered in the name of Cede
& Co. (DTC's partnership nominee). One or more fully-registered global LLC
Preferred Security certificates will be issued, representing in the aggregate
the total number of LLC Preferred Securities, and will be deposited with DTC.
DTC may act as securities depository for any of the other Securities; if it does
so, a description of the applicable book-entry procedures will be set forth in
the applicable Prospectus Supplement.
DTC is a limited-purpose trust company organized under the New York Banking Law,
a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations ("Direct Participants").
DTC is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks, and trust companies that clear
through or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The Rules applicable to DTC
and its Participants are on file with the Commission.
Purchases of LLC Preferred Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the LLC Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
each LLC Preferred Security ("Beneficial Owner") is in turn to be recorded on
the Direct and Indirect Participants' records. Beneficial Owners will not
receive written confirmations from DTC of their purchase, but Beneficial Owners
are expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from the Direct
or Indirect Participant through which the Beneficial Owner purchased LLC
Preferred Securities. Transfers of ownership interests in the LLC Preferred
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in LLC Preferred Securities,
except in the event that use of the book-entry system for the LLC Preferred
Securities is discontinued. The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such laws may impair the ability to transfer beneficial interests in a
global LLC Preferred Security certificate.
DTC has no knowledge of the actual Beneficial Owners of the LLC Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such LLC Preferred Securities are credited, which may or may
not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices will be sent to Cede & Co. If less than all of the LLC
Preferred Securities are being redeemed, DTC's practice is to determine by lot
the amount of the interest of each Direct Participant in such series to be
redeemed.
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Although voting with respect to the LLC Preferred Securities is limited, in
those cases where a vote is required, neither DTC nor Cede & Co. will consent or
vote with respect to LLC Preferred Securities. Under its usual procedures, DTC
mails an Omnibus Proxy to SCI Finance as soon as possible after the record date.
The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts the LLC Preferred Securities are credited
on the record date (identified in a listing attached to the Omnibus Proxy).
Dividend payments on the LLC Preferred Securities will be made to DTC. DTC's
practice is to credit Direct Participants' accounts on the relevant payment date
in accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC, SCI Finance or SCI, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
dividends to DTC is the responsibility of SCI Finance, disbursement of such
payments to Direct Participants will be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owner will be the responsibility
of Direct and Indirect Participants.
DTC has advised SCI and SCI Finance that it will take any action permitted to be
taken by a holder of LLC Preferred Securities (including, without limitation,
the presentation of a LLC Preferred Security certificate for conversion) only at
the direction of one or more Participants to whose account with DTC interest in
such shares represented by a global certificate are credited and only in respect
of such number of LLC Preferred Securities represented by a global certificate
as to which such Participant or Participants has or have given such direction.
DTC may discontinue providing its services as securities depository with respect
to the LLC Preferred Securities at any time by giving reasonable notice to SCI
Finance. Under such circumstances, in the event that a successor securities
depository is not obtained, LLC Preferred Securities certificates are required
to be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system has
been obtained from sources that SCI Finance believes to be reliable, but neither
SCI Finance, SCI nor any underwriter or agent takes responsibility for the
accuracy thereof.
MISCELLANEOUS
The Transfer Agent, Registrant and Paying and Conversion Agent for the LLC
Preferred Securities will be Society National Bank.
Registration of transfers of LLC Preferred Securities will be effected without
charge by the Transfer Agent, but upon payment (with the giving of such
indemnity as the Transfer Agent may require) in respect of any tax or other
governmental charges which may be imposed in relation to it.
The Transfer Agent will not be required to register or cause to be registered
the transfer of LLC Preferred Securities after such shares have been called for
redemption.
SCI Finance is not subject to any mandatory redemption or sinking fund
provisions with respect to the LLC Preferred Securities. Holders of LLC
Preferred Securities have no preemptive rights.
SCI and SCI Finance will enter into an agreement (the "Liability Assumption
Agreement") pursuant to which SCI, in its capacity as Manager and otherwise,
agrees to guarantee the payment of any liabilities incurred by SCI Finance
(other than obligations to holders of LLC Preferred Securities). The Liability
Assumption Agreement expressly provides that such agreement is for the benefit
of, and is enforceable by, third parties to whom SCI Finance owes such
obligations.
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee which will
be executed and delivered by SCI for the benefit of the holders from time to
time of the LLC Preferred Securities.
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General
SCI will irrevocably and unconditionally agree, to the extent set forth herein,
to pay in full, to the holders of LLC Preferred Shares of any series which may
be issued by SCI Finance, including the LLC Preferred Securities, the Guarantee
Payments (as defined below) (except to the extent paid by SCI Finance), as and
when due, regardless of any defense, right of set-off or counterclaim which SCI
Finance may have or assert. The following payments constitute the "Guarantee
Payments" for the LLC Preferred Shares: (i) any accumulated and unpaid dividends
which have been theretofore declared on the LLC Preferred Shares of any series
out of monies legally available therefor, (ii) the redemption price (including
all accumulated and unpaid dividends) to the date of payment payable with
respect to LLC Preferred Shares of any series called for redemption by SCI
Finance out of monies legally available therefor, and (iii) upon a liquidation
of SCI Finance, the lesser of (a) the aggregate liquidation preference per LLC
Preferred Share and all accumulated and unpaid dividends (whether or not
declared) to the date of payment and (b) the amount of remaining assets of SCI
Finance legally available to holders of LLC Preferred Shares. The Guarantee also
requires SCI to deliver upon conversion of any LLC Preferred Shares all shares
of SCI Common Stock or other property into which such LLC Preferred Shares are
convertible. SCI's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amount by SCI to the holders of LLC Preferred
Shares of any series or by causing SCI Finance to pay such amounts to such
holders.
Certain Covenants of SCI
In the Guarantee, SCI will covenant that, so long as any LLC Preferred Shares of
any series remain outstanding, SCI shall not declare or pay any dividend on, and
SCI shall not, and SCI shall not permit any of its majority-owned subsidiaries
to, redeem, purchase, acquire or make a liquidation payment with respect to, any
of SCI's capital stock (other than the redemption by the Company of Series C
Junior Participating Preferred Stock Purchase Rights in accordance with the
Rights Agreement relating thereto and any reacquisition by the Company of any of
its stock issued in any acquisition as a result of a purchase price adjustment
or settlement of breach of warranties in connection with such acquisition) or
make any guarantee payments with respect to the foregoing (other than payments
under the Guarantee), if at such time (i) there shall have occurred any event
that constitutes an Event of Default under the Loan Agreement, (ii) SCI shall be
in default with respect to its payment or other obligations under the Guarantee
or the Manager shall be in default under its obligations under the Liability
Assumption Agreement or (iii) there shall exist any nonpayment of interest under
the Loans, including during any valid extension of the interest payment periods.
In the Guarantee, SCI will also covenant that, so long as any LLC Preferred
Shares of any series remaining outstanding, it will (i) maintain direct 100%
ownership of the LLC Common Shares and any other interests in SCI Finance (other
than the LLC Preferred Shares); (ii) cause more than 20% of the total value
(initially measured by shareholders' equity determined under generally accepted
accounting principles) of SCI Finance and, subject to the preferential rights of
the holders of LLC Preferred Securities as to dividends and liquidation
distributions, more than 20% of all interests in the capital, income, gain,
loss, deduction and credit of SCI Finance to be represented by LLC Common
Shares; (iii) not voluntarily dissolve, wind-up or liquidate SCI Finance; (iv)
remain the Manager of SCI Finance and timely perform all of its duties as
Manager of SCI Finance (including the duty to declare and pay dividends on the
LLC Preferred Shares to the extent set forth in the LLC Articles) and (v) use
reasonable efforts to cause SCI Finance to remain a limited liability company
under the laws of the State of Texas (provided however that SCI Finance may
reorganize under the laws of another jurisdiction provided that SCI Finance has
received an opinion from nationally recognized legal counsel that such
reorganization will not have an adverse effect, including, without limitation,
an adverse tax effect, on the holders of the LLC Preferred Securities) and use
reasonable efforts to cause SCI Finance to continue to be treated as a
partnership for United States Federal income tax purposes.
Amendments and Assignments
Except with respect to any changes which do not adversely affect the rights of
holders of LLC Preferred Shares (in which case no vote will be required), the
Guarantee may be changed only with the prior approval of the holders of not less
than 66 2/3% in liquidation preference (plus all accrued and unpaid dividends
per share) of
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each series of LLC Preferred Shares then outstanding. The manner of obtaining
any such approval of holders of LLC Preferred Shares will be as set forth under
"Description of the LLC Preferred Securities -- Voting Rights." All guarantees
and agreements contained in the Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of SCI and shall inure to the benefit of
all LLC Preferred Shares then outstanding.
Termination of the Guarantee
The Guarantee will terminate and be of no further force and effect as to a
series of LLC Preferred Shares upon full payment of the redemption price
(including all accrued and unpaid dividends), or the retirement or cancellation
of all of such series of LLC Preferred Shares, or delivery of all shares of SCI
Common Stock or other property required to be delivered upon conversion, with
respect to all outstanding LLC Preferred Shares of that series, or shall
terminate completely upon full payment of the amounts payable upon liquidation
of SCI Finance including the delivery of all shares of SCI Common Stock or other
property required to be delivered upon conversion of any LLC Preferred Shares.
The Guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of LLC Preferred Shares of such series must
restore payment of any sums, SCI Common Stock or other property paid under the
LLC Preferred Shares of such series or the Guarantee.
Status of the Guarantee
The Guarantee will constitute an unsecured obligation of SCI and will rank (i)
junior in right of payment to all other liabilities of SCI and will be
subordinated in right of payment in the same manner and to the same extent as
SCI's guarantee of obligations under the Loan Agreement is subordinated to
Senior Indebtedness, (ii) senior to the preferred stock of any series issued at
or after the date of the Guarantee by SCI and (iii) pari passu with any
guarantee entered into at or after the date of the Guarantee by SCI in respect
of any preferred or preference stock of any affiliate of SCI. See
"-- Description of the Loans -- Subordination." The Guarantee will constitute a
guarantee of payment and not of collection. A holder of LLC Preferred Shares may
enforce the Guarantee directly against SCI, and SCI will waive any right or
remedy to require that any action be brought against SCI Finance or any person
or entity before proceeding against SCI. The Guarantee will not be discharged
except by payment of the Guarantee Payments in full (to the extent not paid by
SCI Finance) and by complete performance of all obligations under the Guarantee.
Governing Law
The Guarantee will be governed by and construed in accordance with the laws of
the State of New York.
DESCRIPTION OF THE LOANS
Set forth below is a summary of information concerning the Loans from SCI
Finance to SCI Limited of 99% of the proceeds from the issuance of (i) the LLC
Preferred Securities and (ii) the LLC Common Shares and related capital
contributions ("Common Share Payments").
General
Pursuant to the Loan Agreement, SCI Finance has agreed to make the Loans to SCI
Limited in an aggregate principal amount equal to 99% of the sum of the
aggregate liquidation preference of the LLC Preferred Securities issued and sold
by SCI Finance and the aggregate Common Share Payments.
The entire principal amount of the Loans will become due and payable (together
with any accrued and unpaid interest thereon) on the earlier of the date set
forth in the accompanying Prospectus Supplement or the date upon which SCI, SCI
Limited or SCI Finance shall be dissolved, wound-up or liquidated.
The Loans and SCI Limited's obligations under the Loan Agreement (i) will be
senior obligations of SCI Limited and will be secured by fifty percent of the
outstanding capital stock of Service Corporation International plc, the
principal assets of which are the capital stock of GSG and PG, and (ii) will be
unconditionally guaranteed by SCI on an unsecured subordinated basis.
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Mandatory Payment
If SCI Finance redeems LLC Preferred Securities in accordance with the terms
thereof, the Loans will become due and payable in a principal amount equal to
the aggregate liquidation preference of the LLC Preferred Securities so
redeemed, together with any and all accrued but unpaid interest thereon and any
premium in excess of such principal amount. Any payment pursuant to this
provision shall be made in immediately available funds prior to 12:00 noon, New
York time, on the date fixed for such redemption or at such other time on such
earlier date as SCI Finance, SCI Limited and SCI shall agree.
Optional Prepayment
SCI Limited will have the right to prepay the Loans, in whole or in part
(together with (i) a premium computed based on the same percentage as the
percentage difference between the then applicable Redemption Price on the LLC
Preferred Securities and the stated liquidation preference of the LLC Preferred
Securities and (ii) any accrued but unpaid interest), as set forth in the
accompanying Prospectus Supplement.
Interest
The Loans will bear interest at an annual rate as set forth in the accompanying
Prospectus Supplement from the date they are made until maturity. Such interest
shall be payable on the last day of each calendar month of each year, commencing
as set forth in the accompanying Prospectus Supplement. In the event that any
date on which interest is payable on the Loans is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date, subject to certain rights of extension described below.
Extended Interest Payment Period
SCI Limited shall have the right at any time or from time to time during the
term of the Loans, so long as SCI Limited is not in default in the payment of
interest on the Loans, to extend interest payments under the Loans for up to 60
monthly interest payment periods; and at the end of such extended period SCI
Limited shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Loans to the extent permitted by
applicable law); provided, however, that, during any such extended interest
payment period, or at any time during which there is an Event of Default under
the Loans, SCI shall not declare or pay any dividend on, and SCI shall not, and
shall not permit any of its majority-owned subsidiaries to, redeem, purchase,
acquire or make a liquidation payment with respect to, any of shares of common
or preferred stock of SCI (other than the redemption by the Company of Series C
Junior Participating Preferred Stock Purchase Rights in accordance with the
Rights Agreement relating thereto and any reacquisition by the Company of any of
its stock issued in any acquisition as a result of a purchase price adjustment
or settlement of breach of warranties in connection with such acquisition) or
make any guarantee payments with respect to the foregoing (other than payments
under the Guarantee). Prior to the termination of any such extended interest
payment period, SCI Limited may further extend the interest payment period,
provided, that such extended interest payment period together with all such
further extensions thereof may not exceed 60 monthly interest payments in the
aggregate over the term of the Loans. SCI Limited shall give SCI Finance notice
of its selection of an extended interest payment period at least one Business
Day prior to the earlier of (i) the date SCI Finance declares, or would be
scheduled to declare, the related dividend or (ii) the date SCI Finance is
required to give notice of the record or payment date of such related dividend
to any national securities exchange on which the LLC Preferred Securities are
listed or other applicable self-regulatory organization or to holders of the LLC
Preferred Securities, but in any event not less than two Business Days prior to
such record date. SCI shall cause SCI Finance to give such notice of SCI
Limited's selection of such extended interest payment period to the holders of
the LLC Preferred Securities concurrently therewith.
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Additional Interest
If at any time SCI Finance is or will be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
such case, SCI Limited also will pay as additional interest such amounts as
shall be required so that the net amounts received and retained by SCI Finance
after paying any such taxes, duties, assessments or governmental charges will
not be less than the amounts SCI Finance would have received had no such taxes,
duties, assessments or governmental charges been imposed.
Method and Date of Payment
Each payment by SCI Limited of principal of, premium, if any, and interest on
the Loans shall be made to SCI Finance in lawful money of the United States, at
such place and to such accounts as may be designated by SCI Finance.
Subordination
The Loan Agreement provides that SCI's guarantee of the Loans is subordinate and
junior in right of payment to all Senior Indebtedness as provided in the Loan
Agreement. In this section, the term "Senior Indebtedness" means the principal
of, and premium, if any, and interest on (i) all indebtedness of SCI, other than
ordinary trade credit and other accounts payable arising in the ordinary course
of business, whether outstanding on the date of the Loan Agreement or thereafter
created, incurred or assumed, which is for money borrowed, or evidenced by a
note or similar instrument given in connection with the acquisition of any
business, properties or assets, including securities, (ii) any indebtedness of
others of the kinds described in the preceding clause (i) for which SCI is
responsible or liable as guarantor and (iii) amendments, renewals, extensions
and refundings of any such indebtedness, unless in any instrument or instruments
evidencing or securing such indebtedness or pursuant to which the same is
outstanding, or in any such amendment, renewal, extension or refunding, it is
expressly provided that such indebtedness is not superior in right of payment to
SCI's guarantee of the Loans. The Senior Indebtedness shall continue to be
Senior Indebtedness and entitled to the benefits of the subordination provisions
of the Loan Agreement irrespective of any amendment, modification or waiver of
any term of the Senior Indebtedness or extension or renewal of the Senior
Indebtedness.
The rights of SCI Limited and its creditors, including SCI Finance as to the
Loans, and SCI and its creditors, including SCI Finance pursuant to SCI's
guarantee of the Loans and the holders under the Guarantee, to participate in
the assets of any subsidiary of SCI Limited or SCI upon any liquidation or
reorganization of such subsidiary or otherwise will be subject to the prior
claims of creditors of such subsidiary, except to the extent that SCI Limited or
SCI may itself be a creditor with recognized claims against the subsidiary. The
ability of SCI Limited or SCI to meet its obligations may be dependent upon the
payment to it of dividends, interest and other charges by its subsidiaries. The
ability of SCI Limited's subsidiaries and SCI's subsidiaries to pay dividends or
make other payments to SCI Limited or SCI, as the case may be, is not currently
subject to any contractual or legal restriction (except for limitations imposed
by applicable state corporation laws) which could materially affect SCI
Limited's and SCI's ability to meet their obligations under the Loan Agreement
and the Guarantee. Through their ownership of their subsidiaries, SCI Limited
and SCI currently control (subject to applicable state corporation laws) such
subsidiaries' payment of dividends or other distributions; there can be no
assurance, however, that SCI Limited and SCI will continue such ownership and
control of their subsidiaries.
In the event that (i) SCI shall default in the payment of any principal of,
premium, if any, or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or
declaration or otherwise or (ii) an event of default occurs with respect to any
Senior Indebtedness permitting the holders thereof to accelerate the maturity
thereof and written notice of such event of default is given to SCI by the
holders of such Senior Indebtedness, then unless and until such default in
payment or event of default shall have been cured or waived or shall have ceased
to exist, no direct or indirect payment (in cash, property, securities, by
set-off or otherwise) may be made or agreed to be made by SCI on account of
SCI's guarantee of the Loans or interest thereon or by SCI in respect of any
repayment, redemption, retirement, purchase or other acquisition of the Loans.
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In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to SCI or its property or for the benefit of its creditors, (ii) any proceeding
for the liquidation, dissolution or other winding up of SCI, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by SCI for the benefit of creditors or (iv) any other
marshaling of the assets of SCI, all Senior Indebtedness (including, without
limitation, interest accruing thereon after the commencement of any such
proceeding, assignment or marshaling of assets) shall first be paid in full
before any payment or distribution, whether in cash, securities or other
property, may be made by SCI on account of its guarantee obligations under the
Loan Agreement and the Loans. In any such event, any payment or distribution,
whether in cash, securities or other property (other than securities of SCI or
any other corporation provided for by a plan of reorganization or a
readjustment, the payment of which is subordinate, at least to the extent
provided in the subordination provisions relating to SCI's guarantee obligations
under the Loan Agreement and the Loans with respect to the indebtedness
evidenced by the Loans, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), which would otherwise (but for the
subordination provision) be payable or deliverable in respect of SCI's guarantee
obligations under the Loan Agreement and the Loans shall be paid or delivered
directly to the holders of Senior Indebtedness (or their representative or
trustee) in accordance with the priorities then existing among such holders
until all Senior Indebtedness shall have been paid in full. No present or future
holder of any Senior Indebtedness may be prejudiced in the right to enforce
subordination of SCI's guarantee obligations under the Loan Agreement and the
Loans by any act or failure to act on the part of SCI.
Senior Indebtedness shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, SCI Finance shall be subrogated to all the
rights of any holders of Senior Indebtedness to receive any further payments or
distributions applicable to the Senior Indebtedness until the Loans shall have
been paid in full, and such payments or distributions of cash, securities or
other property received by SCI Finance, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of Senior Indebtedness,
shall, as between SCI and its creditors other than the holders of Senior
Indebtedness on the one hand, and SCI Finance, on the other, be deemed to be a
payment by SCI on account of Senior Indebtedness, and not on account of SCI's
guarantee obligations under the Loan Agreement and the Loans.
Covenants
SCI will covenant that SCI will not declare or pay any dividend on, and SCI will
not, and will not permit any of its majority-owned subsidiaries to, redeem,
purchase, acquire or make a liquidation payment with respect to, any of SCI's
capital stock (other than the redemption by the Company of Series C Junior
Participating Preferred Stock Purchase Rights in accordance with the Rights
Agreement relating thereto and any reacquisition by the Company of any of its
stock issued in any acquisition as a result of a purchase price adjustment or
settlement of breach of warranties in connection with such acquisition), or make
any guarantee payments with respect to the foregoing (other than payments under
the Guarantee), if at such time (i) there shall have occurred any event that
constitutes an Event of Default under the Loan Agreement, (ii) SCI shall be in
default with respect to its payment or other obligations under the Guarantee or
SCI or the Manager shall be in default under its obligations under the Liability
Assumption Agreement or (iii) there shall exist any nonpayment of interest under
the Loans, including during any valid extension of the interest payment periods.
SCI will also covenant (i) to maintain direct 100% ownership of the LLC Common
Shares and any other interests of SCI Finance other than the LLC Preferred
Shares, (ii) to cause more than 20% of the total value (initially measured by
shareholders' equity determined in accordance with generally accepted accounting
principles) of SCI Finance and, subject to the preferential rights of the
holders of LLC Preferred Shares as to dividends and liquidation distributions,
more than 20% of all interests in the capital, income, gain, loss, deduction and
credit of SCI Finance to be represented by LLC Common Shares, (iii) not to
dissolve, wind-up or liquidate SCI Finance voluntarily, (iv) to remain the
Manager of SCI Finance and to timely perform all of its duties as Manager
(including the duty to declare and pay dividends on the LLC Preferred Shares as
described in "-- Dividends") and (v) to use its reasonable efforts to cause SCI
Finance to remain a limited liability company under the laws
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of the State of Texas (provided however that SCI Finance may reorganize under
the laws of another jurisdiction provided that SCI Finance has received a legal
opinion from nationally recognized legal counsel that such reorganization will
not have an adverse effect, including, without limitation, an adverse tax
effect, on the holders of the LLC Preferred Securities) and use reasonable
efforts to cause SCI Finance to continue to be treated as a partnership for
United States Federal income tax purposes. In addition, SCI has agreed to
maintain and reserve sufficient authorized but unissued Common Stock sufficient
to satisfy all conversion rights under the LLC Preferred Securities and to have
available for issuance such other property as may be subject to delivery
pursuant to such conversion rights.
SCI Finance may not waive compliance or waive any default in compliance by SCI
Limited of any covenant or other term in the Loan Agreement or by SCI of its
guarantee of the Loans without the approval of the same percentage of the
holders of LLC Preferred Securities, obtained in the same manner, as would be
required for an amendment of the Loan Agreement to the same effect.
Events of Default
If one or more of the following events (each an "Event of Default") shall occur
and be continuing:
(a) default in the payment of any interest on the Loans when due for 10 Business
Days; provided, however, that a valid extension of the interest payment period
by SCI Limited shall not constitute a default in the payment of interest for
this purpose (see "-- Description of the Loans-- Interest"); or
(b) default in the payment of principal of or premium of any, on the Loans when
due; or
(c) failure of SCI to comply with the conversion provisions of the LLC Preferred
Securities; or
(d) the dissolution, winding-up or liquidation of SCI Finance; or
(e) the bankruptcy, insolvency or liquidation of SCI or SCI Limited; or
(f) breach by SCI Limited or SCI of any of its covenants under the Loan
Agreement continued for 30 days after notice to SCI Limited and SCI from the
holders of not less than 25 percent in liquidation preference of the LLC
Preferred Securities then outstanding;
then, SCI Finance will have the right to declare the principal of and the
interest on the Loans (including any interest subject to an extension election)
and all other amounts payable under the Loan Agreement to be forthwith due and
payable and to enforce its other rights as a creditor with respect to the Loans.
Under the terms of the LLC Preferred Securities, the holders of outstanding LLC
Preferred Securities will have the rights referred to under "-- Description of
the LLC Preferred Securities -- Voting Rights," including the right to appoint a
trustee, which trustee will be authorized to exercise SCI Finance's right to
accelerate the principal amount of the Loans and to enforce SCI Finance's other
creditor rights under the Loans and the Loan Agreement, and SCI Limited and SCI
agree to cooperate with such trustee.
Miscellaneous
SCI Limited will have the right at all times to assign any of its rights or
obligations under the Loan Agreement to a direct or indirect wholly-owned
subsidiary of SCI; provided, however, that, in the event of any such assignment,
SCI Limited will remain jointly and severally liable for all such obligations;
and provided further, that SCI Limited shall receive an opinion of legal counsel
that the effect of any such assignment does not cause SCI Finance to be
considered an "investment company" under the Investment Company Act of 1940, as
amended. SCI Finance may not assign any of its rights under the Loan Agreement
without the prior written consent of SCI Limited and SCI. Subject to the
foregoing, the Loan Agreement will be binding upon and inure to the benefit of
SCI Limited, SCI and SCI Finance and their respective successors and assigns.
The Loan Agreement provides that it may not otherwise be assigned by SCI
Limited, SCI Finance or SCI.
The Loan Agreement will provide that neither SCI Limited nor SCI may permit
another entity to merge with or into SCI Limited or SCI, as the case may be,
unless (i) at such time no Event of Default has occurred and is continuing, or
would occur as a result of such merger, and (ii) either (a) SCI Limited or SCI,
as the case may
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be, is the survivor of such merger or (b) the survivor is a corporation
organized under the laws of the United States or any state thereof and expressly
assumes all of the obligations of SCI Limited or SCI, as the case may be, under
the Loan Agreement and the Loans and SCI Limited receives an opinion of counsel
from nationally recognized legal counsel that the merger will not result in the
recognition of taxable gain or loss by the holders of the LLC Preferred
Securities.
The Loan Agreement will be governed by and construed in accordance with the laws
of the State of New York.
The Loan Agreement may be amended by mutual consent of the parties in the manner
the parties shall agree; provided, however, that, so long as any of the LLC
Preferred Securities remain outstanding, no such amendment shall be made that
adversely affects the holders of LLC Preferred Securities, no termination of the
Loan Agreement shall occur, and no Event of Default or compliance with any
covenant under the Loan Agreement may be waived by SCI Finance, without the
prior consent of the holders of 66 2/3% in liquidation preference of the
outstanding LLC Preferred Securities, in writing or at a duly constituted
meeting of such holders.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
REGARDING THE LLC PREFERRED SECURITIES
GENERAL
In the opinion of Miller & Chevalier, Chartered, special tax counsel to SCI and
SCI Finance, the following discussion accurately describes, subject to the
qualifications stated herein, the material federal income tax considerations
relevant to the purchase, ownership and disposition of the LLC Preferred
Securities. This discussion, which may be modified or supplemented in a
Prospectus Supplement, is a summary that does not purport to deal with all
aspects of federal income taxation that may be relevant to holders of the LLC
Preferred Securities, nor to certain types of holders subject to special
treatment under the federal income tax laws (for example, banks, life insurance
companies, dealers, tax-exempt organizations, persons whose functional currency
is not the U.S. dollar, or foreign persons and foreign entities). Unless
otherwise stated, this discussion is directed at initial purchasers who acquire
the LLC Preferred Securities at original issue and hold the LLC Preferred
Securities as capital assets.
This discussion is based on the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury regulations, judicial decisions and Internal Revenue Service
("IRS") rulings and notices currently in effect, all of which are subject to
change, which change may possibly be applied in a retroactive manner that could
adversely affect a holder of the LLC Preferred Securities. While the discussion
is based on the opinion of Miller & Chevalier, Chartered, an opinion of counsel
is not binding on the IRS or the courts. Neither SCI nor SCI Finance has sought,
or intends to seek, a ruling from the IRS that the positions stated in the
discussion will be accepted by the IRS. Moreover, there are no cases or rulings
on similar transactions, and there can be no assurance that the IRS will agree
with the conclusions expressed below.
PROSPECTIVE PURCHASERS OF LLC PREFERRED SECURITIES ARE ADVISED TO CONSULT THEIR
OWN TAX ADVISORS AS TO THE FEDERAL INCOME, ESTATE AND GIFT TAX CONSEQUENCES OF
PURCHASING, HOLDING AND DISPOSING OF LLC PREFERRED SECURITIES, AS WELL AS THE
TAX CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, FOREIGN COUNTRY OR OTHER
JURISDICTION.
TAX CLASSIFICATION
While the following matters are not free from doubt, Miller & Chevalier,
Chartered is of the opinion that (i) SCI Finance will be classified as a
partnership for federal income tax purposes and not as an association (or as a
publicly traded partnership) taxable as a corporation, and (ii) the Loans will
be classified as indebtedness for such purposes. This advice is based upon the
terms of the Loans, the LLC Articles, the LLC Regulations and
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related documents and transactions as described in this Prospectus (and assumes
ongoing compliance with such documents).
Prospective investors and their advisors should be aware, however, that the
proper characterization of the arrangement involving SCI Finance, the Loans and
the LLC Preferred Securities is not entirely clear, and the IRS has recently
announced that it will scrutinize and may challenge transactions with some
features that are similar to this arrangement. If, contrary to the opinion of
tax counsel, the IRS successfully argued that SCI Finance should be taxable as a
corporation, SCI Finance would be subject to federal income tax at corporate
rates and distributions to holders of LLC Preferred Securities likely would be
taxable as dividend income. Similarly, if, contrary to the opinion of tax
counsel, the IRS successfully asserted that the Loans were properly classified
as stock or other equity, then payments on the Loans would not be deductible by
SCI Limited as interest, but instead likely would be treated as distributions to
holders taxable as dividends.
Prospective investors should also be aware that the IRS recently issued a
proposed Treasury regulation under which the IRS can disregard or recast the
form of a partnership transaction if the partnership is formed or availed of in
connection with a transaction (or series of related transactions) "with a
principal purpose of substantially reducing the present value of the partners'
aggregate federal tax liability" in a manner inconsistent with the intent of the
partnership provisions of the Code. The regulation is proposed to be effective
for all transactions occurring on or after May 12, 1994. In the view of Miller &
Chevalier, Chartered, SCI Finance should not be considered to be formed or
availed of with the purpose proscribed by the proposed regulation because the
transactions involving SCI Finance are not of the type intended to fall within
the scope of the proposed regulation. There can be no assurance, however, that
the IRS will agree with this view. It also is impossible to predict what changes
might be made in the proposed regulation before it is adopted in final form.
Unless otherwise noted, the remainder of this summary assumes, in accordance
with the opinion of Miller & Chevalier, Chartered, that SCI Finance is properly
classified as a partnership and the Loans are properly classified as
indebtedness for federal income tax purposes.
INCOME FROM LLC PREFERRED SECURITIES
As partners in a partnership, each holder of LLC Preferred Securities will be
required to include in gross income its distributive share of the net income of
SCI Finance, which net income generally will be equal to the amount of interest
received or accrued on the Loans. See "Original Issue Discount" below. Any
amount so included in a holder's gross income will increase its tax basis in the
LLC Preferred Securities, and the amount of distributions of cash or other
property by SCI Finance to the holder will reduce such holder's tax basis in the
LLC Preferred Securities. No portion of the amounts received on the LLC
Preferred Securities will be eligible for the dividends received deduction.
SCI Finance does not presently intend to make an election under Section 754 of
the Code. As a result, a subsequent purchaser of LLC Preferred Securities will
not be permitted to adjust the tax basis in its allocable share of SCI Finance's
assets so as to reflect any difference between its purchase price for the LLC
Preferred Securities and the underlying tax basis of SCI Finance in its assets.
As a result, a holder of LLC Preferred Securities may be required to report a
larger or smaller amount of income from holding LLC Preferred Securities than
would otherwise be appropriate based upon the holder's purchase price for the
LLC Preferred Securities.
ORIGINAL ISSUE DISCOUNT
Under the terms of the Loans, SCI Limited will have the right to extend interest
payments under the Loans for up to 60 monthly interest payment periods. If the
payment period is extended, SCI Finance will continue to accrue income, equal to
the amount of the interest payment due at the end of the extended payment
period, over the length of the extended payment period. As a result, holders of
record during an extended interest payment period will include interest in gross
income in advance of the receipt of cash, and any such holders who dispose of
LLC Preferred Securities prior to the record date for the payment of dividends
following such extended interest payment period will include such holder's
allocable share of such interest in gross income but will not receive any cash
from SCI Finance related thereto. The tax basis of an LLC Preferred Security
will be increased by the
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amount of any interest that is included in income without a receipt of cash and
will be decreased when and if such cash is subsequently received from SCI
Finance.
A holder should not be required to allocate a portion of the amount paid for an
LLC Preferred Security to any right to convert such LLC Preferred Security into
SCI Common Stock and, therefore, should not be required to include any amount in
income by reason of original issue discount on the LLC Preferred Security. The
IRS might take a contrary view, however, and require holders to allocate a
portion of the price paid for a convertible LLC Preferred Security to the right
to convert into SCI Common Stock. If the IRS were successful in requiring such
an allocation, a holder could be required to include an incremental amount of
original issue discount (in addition to stated interest) in income over the life
of such LLC Preferred Security. SCI intends to take the position that no
allocation that would result in additional original issue discount (in excess of
stated interest) is required.
USE OF CONVENTION
SCI Finance may adopt a convention for allocating all of the net income accrued
by SCI Finance in any calendar month, such as by allocating the net income to
the holders of record of the LLC Preferred Securities and the Common Shares on
the dividend record date. It is unclear whether this convention will be
respected for federal income tax purposes. If it is not respected, the
distributive share of SCI Finance's net income allocable to LLC Preferred
Securities in respect of a month in which such shares are sold may be allocated
between the seller and the purchaser on some other basis. Any amount so
allocated to the holder of record of the LLC Preferred Securities, whether as
seller or purchaser, would be includible in the holder's income and would
increase the holder's basis in the LLC Preferred Securities.
DISPOSITION OF LLC PREFERRED SECURITIES
Gain or loss will be recognized on a sale of LLC Preferred Securities, including
a complete redemption for cash, equal to the difference between the amount
realized and the holder's tax basis for the LLC Preferred Securities sold. Gain
or loss on the sale or exchange of LLC Preferred Securities held for more than
one year generally will be taxable as long-term capital gain or loss. The
adjusted tax basis of the LLC Preferred Securities sold by a holder will equal
the amount paid by such holder for the LLC Preferred Securities, plus the share
of partnership income allocated to such holder and reduced by any cash or other
property distributed to such holder by SCI Finance. A holder acquiring LLC
Preferred Securities at different prices may be required to maintain a single
aggregate adjusted tax basis in such LLC Preferred Securities, and, upon sale or
other disposition of some of the LLC Preferred Securities, allocate a pro rata
portion of such aggregate tax basis to the LLC Preferred Securities sold (rather
than maintaining a separate tax basis in each LLC Preferred Security for
purposes of computing gain or loss on a sale of that LLC Preferred Security).
If a holder of LLC Preferred Securities is required to recognize an aggregate
amount of income over the life of the LLC Preferred Securities that exceeds the
aggregate cash distributions with respect thereto, such excess generally will
result in a capital loss upon the retirement of the LLC Preferred Securities.
To the extent SCI Limited is required to pay a prepayment premium to SCI Finance
in connection with a prepayment of the Loans, SCI Finance will pay a
corresponding redemption premium to holders of LLC Preferred Securities whose
LLC Preferred Securities are redeemed. SCI Finance will recognize capital gain
on a prepayment of the Loans to the extent of the prepayment premium. SCI
Finance's gain will be allocated to the holders whose LLC Preferred Securities
are subsequently redeemed by SCI Finance, and the allocated gain should increase
such holders' adjusted tax basis in these LLC Preferred Securities. A holder who
has a basis increase due to such allocation will not have additional taxable
gain attributable to the redemption premium upon SCI Finance's subsequent
redemption of the holder's LLC Preferred Securities.
CONVERSION OF LLC PREFERRED SECURITIES
A holder who converts convertible LLC Preferred Securities into SCI Common Stock
will recognize gain or loss in an amount equal to the difference between the tax
basis of the LLC Preferred Securities and the fair market value of the SCI
Common Stock received plus the amount of cash received in lieu of fractional
shares. Such gain
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or loss will be long-term capital gain or loss if the LLC Preferred Securities
have been held for more than one year. The holder's tax basis in the SCI Common
Stock received in the conversion will equal its fair market value.
ADJUSTMENT OF CONVERSION PRICE
Treasury regulations under Section 305 of the Code would treat holders of LLC
Preferred Securities as having received a constructive distribution from SCI in
the event the conversion ratio of convertible LLC Preferred Securities were
adjusted if (i) as a result, the proportionate interest of the holders of such
LLC Preferred Securities in the assets or earnings and profits of SCI were
increased and (ii) the adjustment was not made pursuant to a bona fide,
reasonable antidilution formula. An adjustment in the conversion ratio would not
be considered made pursuant to such a formula if the adjustment was made to
compensate for certain taxable distributions with respect to the stock into
which such LLC Preferred Securities are convertible. Thus, under certain
circumstances, a reduction in the conversion price for the LLC Preferred
Securities is likely to be taxable to the holders thereof as dividend to the
extent of the earnings and profits of SCI.
INFORMATION RETURNS AND AUDIT PROCEDURES
The Manager will furnish each holder with a Schedule K-1 each year setting forth
such holder's allocable share of income for the prior calendar year. The Manager
is required, under the LLC Regulations, to furnish such Schedule K-1 as soon as
practicable following the end of the taxable year, but in any event prior to
March 31st of each succeeding year (assuming, as anticipated, that SCI Finance's
taxable year is a calendar year).
Any person who holds LLC Preferred Securities as nominee for another person is
required to furnish to SCI Finance (a) the name, address and taxpayer
identification number of the beneficial owner and the nominee; (b) information
as to whether the beneficial owner is (i) a person that is not a United States
person, (ii) a foreign government, an international organization or any
wholly-owned agency or instrumentality of either of the foregoing or (iii) a
tax-exempt entity; (c) the amount and description of LLC Preferred Securities
held, acquired or transferred for the beneficial owner; and (d) certain
information including the dates of acquisitions and transfers, means of such
acquisitions and transfers, and acquisition costs for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are United
States persons and certain information on LLC Preferred Securities they acquire,
hold or transfer for their own accounts. A penalty of $50 per failure (up to a
maximum of $100,000 per calendar year) is imposed by the Code for failure to
report such information to SCI Finance. The nominee is required to supply the
beneficial owners of the LLC Preferred Securities with the information furnished
to SCI Finance.
SCI, as the tax matters partner, will be responsible for representing the
holders in any dispute with the IRS. The Code provides for administrative
examination of a partnership as if the partnership were a separate and distinct
taxpayer. Generally, the statute of limitations for partnership items does not
expire before three years from the later of the filing or the last date for
filing of the partnership information return. Any adverse determination
following an audit of the return of SCI Finance by the appropriate taxing
authorities could result in an adjustment of the tax returns of the holders,
and, under certain circumstances, a holder may be precluded from separately
litigating a proposed adjustment to the items of the partnership. An adjustment
could also result in an audit of a holder's tax return and adjustments of items
not related to the income and losses of SCI Finance.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate U.S. holders from the sale of LLC Preferred Securities within the
United States, and "backup withholding" at a rate of 31% will apply to such
payments if the United States holder fails to provide an accurate taxpayer
identification number.
Payments of the proceeds from the sale by a United States Alien Holder (as
defined below) of LLC Preferred Securities made to or through a foreign office
of a broker will not be subject to information reporting or backup withholding,
except that, if the broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person 50% or more of
whose gross income is effectively connected with a United States trade or
business for a specified three-year period, information reporting may apply to
such payments.
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Payments of the proceeds from the sale of LLC Preferred Securities to or through
the United States office of a broker is subject to information reporting and
backup withholding unless the holder or beneficial owner certifies as to its
non-United States status or otherwise establishes an exemption for information
reporting and backup withholding.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any holder
who or which is (i) a nonresident alien individual or (ii) a foreign
corporation, foreign partnership, foreign estate or foreign trust, in any such
case not subject to United States federal income tax on a net income basis in
respect of an LLC Preferred Security.
Under present United States federal income tax law:
(i) payments with respect to interest from SCI Limited made to SCI Finance or
any of its paying agents to any holder of an LLC Preferred Security who or which
is a United States Alien Holder will not be subject to United States federal
withholding tax; provided that (a) the beneficial owner of the LLC Preferred
Security does not actually or constructively own 10% or more of the total
combined voting power of all classes of stock of SCI Limited entitled to vote,
(b) the beneficial owner of the LLC Preferred Security is not a controlled
foreign corporation that is related to SCI Limited through stock ownership, and
(c) either (A) the beneficial owner of the LLC Preferred Security certifies to
SCI Finance or its agent, under penalties of perjury, that it is not a United
States Holder and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "financial
institution") and holds the LLC Preferred Security certifies to SCI Finance or
its agent under penalties of perjury that such statement has been received from
the beneficial owner by it or by a financial institution between it and the
beneficial owner and furnishes the payor with a copy thereof; and
(ii) a United States Alien Holder of an LLC Preferred Security will not be
subject to United States withholding tax on any gain realized on the sale or
exchange of a LLC Preferred Security.
PLAN OF DISTRIBUTION
The Company and/or SCI Finance may sell Securities to or through underwriters,
and also may sell Securities directly to other purchasers or through agents. The
distribution of the Securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive compensation
from the Company and/or SCI Finance or from purchasers of Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and/or SCI Finance and any profit on the
resale of Securities by them may be deemed to be underwriting discounts and
commissions, under the Act. Any such underwriter or agent will be identified,
and any such compensation received from the Company and/or SCI Finance will be
described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company and/or SCI Finance,
underwriters and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company and/or SCI Finance against certain
liabilities, including liabilities under the Act.
If so indicated in the Prospectus Supplement, the Company and/or SCI Finance
will authorize underwriters or other persons acting as the Company's and/or SCI
Finance's agents to solicit offers by certain institutions to purchase
Securities from the Company and/or SCI Finance pursuant to contracts providing
for payments and delivery on a future date. Institutions with which such
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
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others, but in all cases such institutions must be approved by the Company
and/or SCI Finance. The obligations of any purchaser under any such contract
will be subject to the condition that the purchase of the offered Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
LEGAL MATTERS
The validity of the Guarantee offered hereby will be passed upon for the Company
by Wachtell, Lipton, Rosen & Katz, New York, New York, special counsel for the
Company. The validity of the Securities (other than the Guarantee) offered
hereby will be passed upon for the Company and SCI Finance, respectively, by
Fulbright & Jaworski L.L.P., Houston, Texas, special Texas counsel for the
Company. Certain tax matters with respect to the LLC Preferred Securities will
be passed upon for the Company and SCI Finance by Miller & Chevalier, Chartered,
Washington, D.C., special tax counsel for the Company. Certain legal matters in
connection with the Securities will be passed upon for any underwriters by
Cahill Gordon & Reindel (a partnership including a professional corporation),
New York, New York.
EXPERTS
The consolidated financial statements of Service Corporation International at
December 31, 1993, and for the year then ended appearing in Service Corporation
International's Annual Report (Form 10-K) for the year ended December 31, 1993,
have been audited by Coopers & Lybrand L.L.P., independent auditors, and at
December 31, 1992, and for each of the two years in the period ended December
31, 1992, by Ernst & Young LLP, independent auditors, as set forth in their
respective reports thereon incorporated herein by reference in reliance upon
such reports given upon the authority of such firms as experts in accounting and
auditing.
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[SERVICE CORPORATION INTERNATIONAL LOGO]
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Filed Pursuant to Rule 424(b)(5)
Registration Nos. 033-56069; 033-56069-01
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* *
* Information contained in this preliminary prospectus supplement is *
* subject to completion or amendment. A registration statement relating *
* to these securities has been filed with the Securities and Exchange *
* Commission. These securities may not be sold nor may offers to buy be *
* accepted prior to the time that a final prospectus supplement is *
* delivered. This preliminary prospectus supplement and the *
* accompanying prospectus shall not constitute an offer to sell or the *
* solicitation of an offer to buy nor shall there be any sale of these *
* securities in any State in which such offer, solicitation or sale *
* would be unlawful prior to registration or qualification under the *
* securities laws of any such State. *
* *
***************************************************************************
<TABLE>
<S> <C>
PROSPECTUS SUPPLEMENT SUBJECT TO COMPLETION
(To Prospectus dated November 1, 1994) NOVEMBER 3, 1994
</TABLE>
3,000,000 Shares
SCI FINANCE LLC
$ Term Convertible Shares, Series A ("TECONS"*)
(liquidation preference $50 per share) guaranteed to the extent set forth herein
by, and convertible
into Common Stock of,
SERVICE CORPORATION INTERNATIONAL
The $ Term Convertible Shares, Series A (the "TECONS" or "LLC Preferred
Securities"), liquidation preference $50 per share, offered hereby are being
issued by SCI Finance LLC, a special purpose limited liability company organized
under the laws of the State of Texas ("SCI Finance"). SCI Finance is a
subsidiary of Service Corporation International, a Texas corporation ("SCI").
Application will be made to list the TECONS on the NYSE under the symbol "SRV
prT."
(continued on following page)
SEE "CERTAIN INVESTMENT CONSIDERATIONS" IN THIS PROSPECTUS SUPPLEMENT AND THE
ACCOMPANYING PROSPECTUS FOR INFORMATION THAT SHOULD BE CONSIDERED BY PROSPECTIVE
INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
- --------------------------------------------------------------------------------------------------------
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC (1) COMPENSATION(2)(3) SCI FINANCE (3)(4)
<S> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------
Per TECONS $ $ $
- --------------------------------------------------------------------------------------------------------
Total(5) $ $ $
- --------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus accrued dividends, if any, from the date of issuance.
(2) SCI Finance and SCI have agreed jointly and severally to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933. See "Underwriting."
(3) The Underwriting Agreement provides that SCI will pay to the Underwriters
the underwriting compensation shown in the table above. See "Underwriting."
(4) SCI will pay expenses of the offering made hereby estimated at $328,000.
(5) SCI Finance and SCI have granted the Underwriters an option, exercisable
within 30 days after the date of this Prospectus Supplement, to purchase up to
an additional 450,000 TECONS on the same terms as set forth above, solely to
cover over-allotments, if any. If such over-allotment option is exercised in
full, the total Price to Public, Underwriting Compensation and Proceeds to SCI
Finance will be $ , $ and $ ,
respectively. See "Underwriting."
The TECONS offered by this Prospectus Supplement are being offered by the
Underwriters, subject to prior sale, when, as and if delivered to and accepted
by the Underwriters, and subject to approval of certain legal matters by Cahill
Gordon & Reindel, counsel for the Underwriters, and certain other conditions. It
is expected that delivery of the TECONS will be made only in book-entry form
through the facilities of The Depository Trust Company, as Depositary, on or
about December , 1994, against payment therefor in next day funds.
- ---------------
* An application has been filed by J.P. Morgan Securities Inc. with the United
States Patent and Trademark Office for the registration of the TECONS service
mark.
J.P. MORGAN SECURITIES INC. MERRILL LYNCH & CO.
, 1994
<PAGE> 182
Concurrently with the offering made hereby, SCI is offering an aggregate of
7,700,000 shares of Common Stock, $1 par value, of SCI (the "SCI Common Stock")
(excluding 1,155,000 shares subject to an underwriters' over-allotment option),
pursuant to separate prospectus supplements covering an offering in the United
States and Canada and an international offering.
Dividends on the TECONS will accrue at the annual rate of $ per TECONS, are
cumulative from the date of initial issuance and are payable on the last day of
each calendar month, commencing December 31, 1994, except as described herein.
TECONS are convertible at the option of the holder at any time, unless
previously redeemed, into shares of SCI Common Stock at an initial conversion
rate of shares of SCI Common Stock for each TECONS (equivalent to a
conversion price of $ per share of SCI Common Stock), subject to
adjustment upon certain events. The outstanding SCI Common Stock is listed on
the New York Stock Exchange ("NYSE") under the symbol "SRV." On November 2,
1994, the reported last sale price of the SCI Common Stock on the NYSE was
$26.625 per share.
On and after , 1997 and prior to , 1999, the TECONS will be
redeemable at the option of SCI Finance, in whole or in part, at the redemption
prices set forth herein plus accrued and unpaid dividends if for 20 trading days
within any period of 30 consecutive trading days (including the last trading day
of such period) ending on the trading day immediately prior to the notice of
redemption, the closing price of the SCI Common Stock on the NYSE equals or
exceeds 125% of the then effective conversion price (initially $ per share
of SCI Common Stock) and if all dividends on the TECONS for all dividend periods
ending on or prior to the notice of redemption have been paid in full or
declared and set aside for payment in full. On and after , 1999, the
TECONS are redeemable at the option of SCI Finance, in whole or in part,
initially at a redemption price of $ per TECONS, and thereafter at prices
decreasing ratably and annually to $50 per TECONS on and after , 2004,
plus accrued and unpaid dividends. In addition, in the event a Tax Event (as
defined herein) shall occur and be continuing, the TECONS will be redeemable, in
whole but not in part, at the option of SCI Finance at the then applicable
redemption price as set forth herein. See "Certain Terms of the
TECONS -- Redemption" and "Description of the LLC Preferred
Securities -- Optional Redemption."
The payment of dividends and the payments on liquidation or redemption with
respect to the TECONS are guaranteed by SCI (the "Guarantee") to the extent
described herein. In addition, SCI will agree to issue the SCI Common Stock
issuable upon conversion of the TECONS. The Guarantee will be unsecured and will
be subordinated to all liabilities of SCI. See "Description of the LLC Preferred
Securities -- Miscellaneous," "-- Description of the Guarantee" and
"-- Description of the Loans" for a description of various contractual backup
undertakings of SCI. The Guarantee requires that SCI make the payment of
dividends only under circumstances in which SCI Finance shall have theretofore
declared the dividend out of funds legally available therefor and shall have
failed to make the dividend payment. The proceeds of the offering made hereby of
the TECONS will be loaned by SCI Finance to SCI International Limited, a
wholly-owned subsidiary of SCI ("SCI Limited"), on a senior secured basis
pursuant to the Loan Agreement having the terms described herein. If SCI Limited
fails to make interest payments on its indebtedness under the Loan Agreement and
SCI fails to make such interest payments under its loan guarantee described
below, SCI Finance will have insufficient funds to pay dividends on the TECONS.
SCI Limited will have the right to extend interest payments on the indebtedness
under the Loan Agreement for up to 60 monthly interest payment periods in the
aggregate over the term of the loans. SCI will guarantee SCI Limited's
obligations under the Loan Agreement, which guarantee will be subordinated to
all Senior Indebtedness of SCI to the extent described herein.
S-2
<PAGE> 183
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE TECONS, THE
SCI COMMON STOCK AND SCI'S CONVERTIBLE DEBENTURES AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON
THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No person is authorized to give any information or to make any representation
not contained or incorporated by reference in this Prospectus Supplement or the
accompanying Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by SCI Finance,
SCI or any Underwriter. Neither this Prospectus Supplement nor the accompanying
Prospectus constitutes an offer to sell or a solicitation of an offer to buy any
securities in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
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Page
<S> <C>
Prospectus Summary.................... S-5
The Company........................... S-9
Recent Developments................... S-14
Certain Investment Considerations..... S-15
Use of Proceeds....................... S-16
Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividend Requirements. S-16
Price Range of Common Stock and
Dividends........................... S-17
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Page
<S> <C>
Capitalization........................ S-18
Selected Financial Information........ S-19
Unaudited Pro Forma Combined Financial
Information......................... S-20
Management's Discussion and Analysis
of Results of Operations and
Financial Condition................. S-30
Certain Terms of the TECONS........... S-39
Underwriting.......................... S-41
</TABLE>
PROSPECTUS
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information................. 3
Incorporation of Certain Documents by
Reference........................... 4
The Company........................... 5
SCI Finance........................... 5
Certain Investment Considerations..... 6
Use of Proceeds....................... 6
Description of Debt Securities........ 7
Description of Preferred Stock........ 22
<CAPTION>
Page
<S> <C>
Description of Common Stock
Warrants............................ 25
Description of the LLC Preferred
Securities.......................... 28
Certain Federal Income Tax
Considerations Regarding the
LLC Preferred Securities............ 45
Plan of Distribution.................. 49
Legal Matters......................... 50
Experts............................... 50
</TABLE>
S-3
<PAGE> 184
Artwork showing Major North American Markets Served indicated by Bullets on
Map of United States, Alaska and Hawaii.
Artwork showing Major International Markets Served indicated by Bullets on
Maps of United Kingdom and Australia.
S-4
<PAGE> 185
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information included and incorporated by
reference in this Prospectus Supplement and the accompanying Prospectus. All
information in this Prospectus Supplement assumes that the Underwriters'
over-allotment option will not be exercised. See "Underwriting." References to
the Company or SCI herein should be read as referring to Service Corporation
International and its subsidiaries, except where the context indicates
otherwise.
THE COMPANY
Service Corporation International (the "Company" or "SCI") is the largest
provider of death care services and products in the world. Giving effect to the
recent acquisitions of Great Southern Group plc ("Great Southern" or "GSG") and
Plantsbrook Group plc ("Plantsbrook" or "PG"), as of September 30, 1994, SCI
owned and operated 1,431 funeral homes, 213 cemeteries (including 92 funeral
home and cemetery combinations) and 99 crematoria located in 40 U.S. states, the
District of Columbia, Australia, Canada and the United Kingdom. See "The
Company -- International Expansion and Recent Acquisitions."
SCI provides all professional services relating to funerals, burials and
cremations, including the use of funeral homes and motor vehicles, the
performance of cemetery interment services and the management and maintenance of
cemetery grounds. It sells caskets, burial vaults and garments, cemetery
interment rights, including mausoleum spaces and lawn crypts, stone and bronze
memorials, cremation receptacles and related merchandise. Additionally, SCI
operates 52 flower shops in connection with its funeral and cemetery operations.
SCI sells its services and products to client families both at and prior to the
time of need. In addition, SCI's finance subsidiary, Provident Services, Inc.
("Provident"), provides financing to independent funeral home and cemetery
operators.
SCI's strategy is to:
- Continue to expand through the acquisition and construction, both
domestically and internationally, of funeral homes, cemeteries and
funeral home/cemetery combinations in areas with demographics that
SCI believes to be favorable
- Increase the operating margins of its existing and acquired facilities
by having such facilities share resources pursuant to SCI's cluster
strategy (see "The Company -- Funeral Service Operations -- Cluster
Strategy")
- Increase revenue per location through the merchandising of a broad line
of death care products and services
- Increase future volume and revenues through the sale of prearranged
funeral services
SCI's acquisition strategy focuses on acquiring premier funeral homes and
cemeteries in metropolitan areas with demographics that SCI believes to be
favorable and in which the cluster strategy can be applied. SCI typically
retains former owners and key managers of acquired businesses in an effort to
assure that service quality is maintained and that the business's reputation,
heritage and local relationships remain intact. Acquired funeral homes and
cemeteries retain their original trade names in substantially all cases.
During the nine months ended September 30, 1994, SCI acquired 637 funeral homes,
22 cemeteries and 22 crematoria worldwide for a total of approximately $703
million in cash, stock and other securities.
S-5
<PAGE> 186
THE OFFERING
SECURITIES OFFERED......... 3,000,000 $ Term Convertible Shares, Series A
("TECONS" or "LLC Preferred Securities").
ISSUER..................... SCI Finance LLC ("SCI Finance"), a special purpose
Texas limited liability company, which is a
subsidiary of Service Corporation International
(the "Company" or "SCI").
GUARANTOR.................. SCI.
LIQUIDATION PREFERENCE..... $50 per TECONS, plus accumulated and unpaid
dividends.
DIVIDENDS.................. Cumulative from the date of issuance at the annual
rate of $ per TECONS, payable monthly in
arrears on the last day of each calendar month,
commencing December 31, 1994, except as described
herein. The principal source of funds to pay such
dividends on the TECONS will be interest payments
on the Loans (as defined below) made to SCI
Limited. SCI Limited will have the right to extend
interest payments on such Loans for up to 60
monthly interest payment periods in the aggregate
over the term of the Loans. See "Description of the
LLC Preferred Securities -- Dividends" and
"-- Description of the Loans -- Extended Interest
Payment Period."
CONVERSION RIGHTS........... TECONS are convertible at the option of the holder,
unless previously redeemed, at any time at an
initial conversion rate of shares of SCI
Common Stock for each TECONS (equivalent to a
conversion price of $ per share of SCI Common
Stock), subject to adjustment in certain
circumstances. See "Description of the LLC
Preferred Securities -- Conversion Rights."
REDEMPTION................. On and after , 1997 and prior to
, 1999, the TECONS will be redeemable at
the option of SCI Finance, in whole or in part, at
the redemption prices set forth herein plus accrued
and unpaid dividends if for 20 trading days within
any period of 30 consecutive trading days
(including the last trading day of such period)
ending on the trading day immediately prior to the
notice of redemption, the closing price of the SCI
Common Stock on the NYSE equals or exceeds 125% of
the then effective conversion price (initially $
per share of SCI Common Stock) and if all dividends
on the TECONS for all dividend periods ending on or
prior to the notice of redemption have been paid in
full or declared and set aside for payment in full.
On and after , 1999, the TECONS are
redeemable at the option of SCI Finance, in whole
or in part, initially at a redemption price of
$ per TECONS, and thereafter at prices
decreasing ratably and annually to $50 per TECONS
on and after , 2004, plus accrued
and unpaid dividends. In addition, in the event a
Tax Event (as defined herein) shall occur and be
continuing, the TECONS will be redeemable, in whole
but not in part, at the option of SCI Finance at
the then applicable redemption price as set forth
herein. See "Certain Terms of the
TECONS -- Redemption" and "Description of the LLC
Preferred Securities -- Optional Redemption" and
-- "Tax Event Redemption."
USE OF PROCEEDS............ The proceeds to SCI Finance from the sale of the
TECONS will be loaned by SCI Finance to SCI Limited
(the "Loans") which will use such
S-6
<PAGE> 187
proceeds to repay indebtedness incurred in
connection with SCI's foreign acquisition program.
See "Use of Proceeds."
PAYMENT, GUARANTEE AND
CONVERSION AGREEMENT
OBLIGATIONS OF SCI....... Pursuant to the payment, guarantee and conversion
agreement (the "Guarantee"), SCI will irrevocably
and unconditionally guarantee the payment by SCI
Finance of: (i) any accumulated and unpaid
dividends which have been theretofore declared on
the TECONS out of monies legally available
therefor, (ii) the redemption price (including all
accumulated and unpaid dividends) to the date of
payment payable with respect to TECONS called for
redemption by SCI Finance out of monies legally
available therefor and (iii) upon a liquidation of
SCI Finance, the lesser of (a) the aggregate
liquidation preference per TECONS plus accumulated
and unpaid dividends to the date of payment and (b)
the amount of remaining assets of SCI Finance
legally available to holders of TECONS. The
Guarantee is directly enforceable by the holders of
TECONS and is subordinate to all other liabilities
of SCI. The Guarantee also requires SCI to deliver
upon conversion of any TECONS all shares of SCI
Common Stock or other property into which such
TECONS are convertible. See "Description of the LLC
Preferred Securities -- Description of the
Guarantee -- General."
LOAN AGREEMENT OBLIGATIONS;
SCI GUARANTEE OF LOAN
AGREEMENT OBLIGATIONS.... Under the Loan Agreement, SCI Limited is obligated
to pay (i) interest at % per annum (which will
be in an amount and at such times sufficient to
permit timely and full payment of all dividends on
the TECONS), subject to certain rights of extension
described under "Description of the LLC Preferred
Securities -- Description of the Loans -- Extended
Interest Payment Period", and (ii) principal and
applicable premium, if any, in amounts and at times
sufficient to permit timely and full payment of all
amounts payable by SCI Finance to holders of TECONS
on account of mandatory or optional redemption of
TECONS or the dissolution, winding-up or
liquidation of SCI Finance. SCI will guarantee on a
subordinated basis all of SCI Limited's obligations
under the Loan Agreement. The obligations of SCI
Limited under the Loan Agreement and of SCI under
the guarantee in respect thereof are enforceable by
SCI Finance, and the holders of TECONS will have
the right under certain circumstances to appoint a
trustee to enforce SCI Finance's rights thereunder.
The obligations of SCI Limited under the Loan
Agreement are senior secured obligations of SCI
Limited, secured by 50% of the outstanding capital
stock of Service Corporation International plc, the
principal assets of which are the capital stock of
Great Southern and Plantsbrook. The obligations of
SCI under its guarantee of the Loan Agreement are
subordinate to all existing and future Senior
Indebtedness of SCI to the extent described herein.
The loans to be made under the Loan Agreement
mature on December , 2024. See "Description of
the LLC Preferred Securities -- Description of the
Loans."
RELATED GUARANTEE AND
LOAN AGREEMENT
COVENANTS................ Under the Guarantee and the Loan Agreement, SCI
covenants, among other things, (i) to maintain
direct 100% ownership of all interests in SCI
Finance other than LLC Preferred Shares, (ii) not
to voluntarily dissolve,
S-7
<PAGE> 188
wind-up or liquidate SCI Finance so long as the
Loans (and any TECONS) are outstanding and (iii) to
remain the Manager of SCI Finance and timely
perform its duties as Manager (including the duty
to declare and pay dividends on the TECONS). See
"Description of the LLC Preferred
Securities -- Description of the
Guarantee -- Certain Covenants of SCI" and
" -- Description of the Loans -- Covenants."
VOTING RIGHTS.............. The holders of the TECONS will have no voting
rights except in certain circumstances described
herein. See "Description of the LLC Preferred
Securities -- Voting Rights."
NYSE TRADING SYMBOL........ "SRV prT"
CONCURRENT OFFERINGS....... Concurrently with the offering made hereby, SCI is
offering (the "Common Stock Offering") an aggregate
of 7,700,000 shares of SCI Common Stock (excluding
1,155,000 shares subject to an underwriters' over-
allotment option) pursuant to a separate prospectus
supplement. In addition, SCI intends to consummate
an offering (the "Senior Notes Offering") of $200
million aggregate principal amount of Notes due
2004, pursuant to a separate prospectus supplement,
concurrently with the closing of the offering made
hereby and the Common Stock Offering. The closing
of the offering made hereby is not contingent on
the closing of the Common Stock Offering or the
Senior Notes Offering.
S-8
<PAGE> 189
THE COMPANY
SCI is the largest provider of death care services and products in the world.
Giving effect to the recent acquisitions of Great Southern and Plantsbrook, as
of September 30, 1994, SCI owned and operated 1,431 funeral homes, 213
cemeteries (including 92 funeral home and cemetery combinations) and 99
crematoria located in 40 U.S. states, the District of Columbia, Australia,
Canada and the United Kingdom. See "-- International Expansion and Recent
Acquisitions."
SCI provides all professional services relating to funerals, burials and
cremations, including the use of funeral homes and motor vehicles, the
performance of cemetery interment services and the management and maintenance of
cemetery grounds. It sells caskets, burial vaults and garments, cemetery
interment rights, including mausoleum spaces and lawn crypts, stone and bronze
memorials, cremation receptacles and related merchandise. Additionally, SCI
operates 52 flower shops in connection with its funeral and cemetery operations.
SCI sells its services and products to client families both at and prior to the
time of need. In addition, SCI's finance subsidiary, Provident, provides
financing to independent funeral home and cemetery operators.
SCI's strategy is to:
- Continue to expand through the acquisition and construction, both
domestically and internationally, of funeral homes, cemeteries and
funeral home/cemetery combinations in areas with demographics that
SCI believes to be favorable
- Increase the operating margins of its existing and acquired facilities by
having such facilities share resources pursuant to SCI's cluster strategy
- Increase revenue per location through the merchandising of a broad line
of death care products and services
- Increase future volume and revenues through the sale of prearranged
funeral services
SCI's acquisition strategy focuses on acquiring premier funeral homes and
cemeteries in metropolitan areas with demographics that SCI believes to be
favorable and in which the cluster strategy can be applied. SCI typically
retains former owners and key managers of acquired businesses in an effort to
assure that service quality is maintained and that the business's reputation,
heritage and local relationships remain intact. Acquired funeral homes and
cemeteries retain their original trade names in substantially all cases.
During the nine months ended September 30, 1994, SCI acquired 637 funeral homes,
22 cemeteries and 22 crematoria worldwide for a total of approximately $703
million in cash, stock and other securities.
FUNERAL SERVICE OPERATIONS
The funeral service operations consist of SCI's funeral homes, cemeteries and
related businesses. The operation is organized into six domestic regions and
three foreign regions (Australia, Canada and the United Kingdom), each of which
is under the direction of a regional president with substantial industry
experience. Canadian operations are carried out by a public company which is
approximately 70% owned by SCI. Local funeral home and cemetery managers, under
the direction of the regional presidents, receive support and resources from
SCI's headquarters in Houston, Texas and have substantial autonomy with respect
to the manner in which services are conducted.
Death Care Industry
The funeral industry is characterized by a large number of locally-owned,
independent operations. SCI believes that there are in excess of 22,000, 500,
1,200 and 4,000 funeral homes operating in the United States, Australia, Canada
and the United Kingdom, respectively. In order to compete successfully, SCI's
funeral homes must maintain competitive prices, attractive, well-maintained and
conveniently located facilities, a good reputation and high professional
standards. Heritage and tradition can provide an established funeral home or
cemetery with the opportunity for repeat business from client families.
Furthermore, an established firm can generate future volume and revenues by
successfully marketing prearranged, pre-funded funeral services.
S-9
<PAGE> 190
The cemetery industry is also characterized by a large number of locally-owned
independent operations. SCI's cemetery properties compete with other cemeteries
in the same general area. In order to compete successfully, SCI's cemeteries
must maintain competitive prices, attractive and well-maintained properties, a
good reputation, an effective sales force and high professional standards.
The Company and the two other largest North American death care companies
control in the aggregate approximately seven percent of the funeral homes and
approximately four percent of the commercial cemeteries in North America. Based
upon industry estimates, these three companies represented less than 15% of
total 1993 death care industry revenues.
Cluster Strategy
The majority of SCI's funeral homes and cemeteries are managed in groups called
clusters. Clusters are established primarily in metropolitan areas to take
advantage of operational efficiencies, including the sharing of service
personnel, vehicles, preparation services, clerical staff and certain building
facility costs. The cluster strategy recognizes that, as SCI adds operations to
a geographic area in which SCI already operates, it will achieve additional
operating efficiencies through cost-sharing. SCI has successfully implemented
the cluster strategy in its North American and Australian operations and intends
to implement the strategy in the United Kingdom. As of September 30, 1994, SCI
operated approximately 160 clusters in North America and Australia, which range
in size from two operations to 53 operations.
Pre-need Services
SCI is actively engaged in the marketing of prearranged funeral services. The
funds collected from prearranged funeral contracts are generally held in trust
or are used to purchase life insurance or annuity contracts. The principal
amount of a prearranged funeral contract will be received in cash by an SCI
funeral home and recorded as revenue by SCI at the time the funeral is
performed. Earnings on trust funds and increasing benefits under
insurance-funded contracts increase the amount of cash to be received and the
revenue to be recognized at the time the service is performed and historically
have allowed the Company to more than cover increases in the costs of providing
funeral services. At September 30, 1994, SCI's unfulfilled prearranged funeral
contracts amounted to approximately $1.4 billion. SCI's historical cancellation
rate for all prearranged funeral contracts approximates ten percent, for which a
reserve has been established.
Cemetery sales are often made pursuant to installment contracts providing for
monthly payments. The principal amount of these installment contracts is
recognized as revenue by SCI at the time of sale, net of an approximate eight
percent cancellation reserve that is based on historical results. A portion of
the proceeds from cemetery sales is generally required by law to be paid into
perpetual care trust funds. Earnings on perpetual care trust funds are used to
defray the maintenance cost of cemeteries. In addition, a portion of the
proceeds from the pre-need sale of cemetery merchandise may be required by law
to be paid into trust.
Financial Services
In 1988, SCI formed Provident to provide capital financing to independent
funeral home and cemetery operators. The majority of Provident's loans are made
to clients seeking to finance funeral home or cemetery acquisitions.
Provident had $243 million in loans outstanding at September 30, 1994. To date,
the amount and number of problem loans have been insignificant. Provident
obtains its funds primarily from SCI bank and commercial paper borrowings.
Provident is in competition with banks and other lending institutions, many of
which have substantially greater resources than Provident. However, Provident
believes that its knowledge of the death care industry provides it with the
ability to make more accurate assessments of funeral home and cemetery industry
loans, thereby providing Provident with a competitive advantage in making such
loans.
S-10
<PAGE> 191
Regulation
In April 1984, the U.S. Federal Trade Commission (the "FTC") comprehensive trade
regulation rule for the funeral industry became fully effective. The rule
contains minimum guidelines for funeral industry practices, requires extensive
price and other affirmative disclosures and imposes mandatory itemization of
funeral goods and services. A pre-existing consent order between SCI and the FTC
applicable to certain funeral practices of SCI was amended in 1984 to make the
substantive provisions of the consent order consistent with the funeral trade
regulation rule. From time to time in connection with acquisitions, SCI has
entered into consent orders with the FTC which have required SCI to dispose of
certain operations in order to proceed with the acquisitions and/or have limited
SCI's ability to make acquisitions in specified areas. The trade regulation rule
and the various consent orders have not had a material adverse effect on SCI's
operations.
ACQUISITION STRATEGY
Over the past several years, SCI has made a significant number of acquisitions.
SCI anticipates that it will continue to aggressively pursue acquisition
opportunities, as acquisitions form a critical part of SCI's growth strategy.
SCI will continue to seek acquisitions in geographic areas in which it presently
operates to expand established clusters, as well as acquisitions in new
geographic areas, including those outside North America, to develop new clusters
and to increase volume and revenue. To date SCI has been able to increase the
profitability of its acquired properties by absorbing a significant portion of
their costs, such as transportation and embalming, into SCI's clusters, and by
applying SCI's merchandising programs to the new operations. In addition,
acquisitions increase SCI's ability to benefit from the centralization of
systems, insurance and other financial services. SCI also believes that because
of its size it has been able to negotiate favorable supply arrangements with
volume discounts on supplies, including caskets, and that the terms of such
supply arrangements have enabled it to increase the profitability of its
acquired properties. There can be no assurance that SCI will continue to
successfully absorb future acquisitions, domestic or international, or realize
such cost savings.
SCI typically retains former owners and key managers of acquired businesses in
an effort to assure that service quality is maintained and that the business's
reputation, heritage and local relationships remain intact. Acquired funeral
homes and cemeteries retain their original trade names in substantially all
cases.
In evaluating specific properties for acquisition, SCI considers a number of
factors including demographics, location, reputation, heritage, physical size,
volume of business, profitability, available inventory, name recognition,
aesthetics, potential for development or expansion, competitive position,
pricing structure and quality of operating management. SCI follows a disciplined
approach based on specific financial criteria for determining acquisition prices
and intends to continue an active acquisition program in the future. There can
be no assurance that acquisition prospects will continue to be available in
attractive locations at prices acceptable to SCI.
INTERNATIONAL EXPANSION AND RECENT ACQUISITIONS
Based on its experience in applying its cluster strategy in the North American
market, SCI has targeted several foreign countries that it believes offer
similar opportunities. Effective July 1, 1993, SCI acquired Pine Grove Funeral
Group ("Pine Grove"), Australia's largest funeral and cremation services
provider, for approximately U.S.$70 million. This was SCI's first acquisition
outside of North America. Pine Grove's operations at year-end 1993 consisted of
60 funeral homes and eight cemetery/crematorium facilities located in
Australia's five major population centers of Adelaide, Brisbane, Melbourne,
Perth and Sydney. During its six months of operation in 1993 as an SCI company,
Pine Grove reported revenues of approximately U.S.$17 million. In March 1994,
SCI continued its Australian expansion by acquiring LePine Holdings Proprietary
Limited ("LePine"), a firm with over 100 years of funeral service history. The
LePine acquisition added 20 additional funeral homes in Melbourne with 1993
revenues of approximately U.S.$12 million.
In June 1994, SCI announced an unsolicited offer to acquire 100% of the
outstanding shares of Great Southern, which is among the leading funeral and
cremation services companies in the United Kingdom. Great Southern owns and
operates 157 funeral homes, 13 crematoria and two cemeteries in the United
Kingdom, primarily
S-11
<PAGE> 192
south of London. As of September 30, 1994, SCI owned, or had commitments to
acquire, in excess of 98% of Great Southern's voting shares. It is anticipated
that SCI will acquire the balance of the equity interests in Great Southern in
the coming months. The total purchase price for Great Southern is approximately
U.S.$192.8 million, including the assumption of approximately U.S.$14.8 million
of Great Southern debt. Great Southern reported revenues of approximately
U.S.$48.9 million for the year ended December 31, 1993. See "Unaudited Pro Forma
Combined Financial Information."
In September 1994, SCI announced its offer to acquire 100% of the outstanding
shares of Plantsbrook, which is the largest public funeral company in the United
Kingdom. Plantsbrook owns and operates 380 funeral homes in the United Kingdom,
primarily north of London. As of September 30, 1994, SCI owned, or had
commitments to acquire, in excess of 95% of Plantsbrook's voting shares. It is
anticipated that SCI will acquire the balance of the equity interests in
Plantsbrook in the coming months. The total purchase price for Plantsbrook is
approximately U.S.$312.7 million, including the assumption of approximately
U.S.$13.9 of Plantsbrook debt. Plantsbrook reported revenues of approximately
U.S.$77.7 million for the year ended December 31, 1993. See "Unaudited Pro Forma
Combined Financial Information." Great Southern and Plantsbrook together
accounted for approximately 15% of the total funerals performed in the United
Kingdom during 1993.
In the context of its international expansion, SCI believes that it can
favorably manage its worldwide effective tax rate by taking advantage of lower
tax rates and other foreign jurisdictional tax structuring opportunities. SCI
has implemented and intends to continue to explore the implementation of various
strategies to take advantage of such opportunities. There can be no assurance
that the implementation of such strategies will actually result in a reduction
of SCI's worldwide effective tax rate.
INDUSTRY TRENDS
Stability
Death rates have been fairly predictable, thereby lending stability to the death
care industry. For example, since 1980, the number of deaths in the United
States has increased at a compound rate of approximately one percent per year.
According to a 1993 report prepared by the U.S. Department of Commerce, Bureau
of the Census, the number of deaths in the United States is expected to increase
by approximately one percent per year between 1993 and 2000 and by 0.9% per year
from 2000 to 2020. Because the industry is relatively stable, non-cyclical and
fairly predictable, business failures are uncommon. As a result, ownership of
funeral home and cemetery businesses has traditionally passed from generation to
generation within a family. The death rate tends to be somewhat higher in the
winter months and funeral and cemetery operations generally experience a higher
volume of business during these months.
Consolidation
In recent years, the pace of acquisition activity in the death care industry has
increased. From the standpoint of individual owners, this appears to result
principally from family succession issues, a desire for liquidity and increasing
tax and estate planning complexities. From the standpoint of the large death
care providers, interest in acquisitions is driven by the benefits anticipated
to be derived from potential operating efficiencies, improved managerial control
and more effective strategic and financial planning. In recent years, several
large death care companies have expanded their operations significantly through
acquisitions. The increased interest in acquisitions of funeral homes and
cemeteries provides a source of potential liquidity that has not been readily
available to individual owners in the past.
Clustered Operations
During the last several years, larger death care companies have increasingly
begun to cluster their funeral home and cemetery operations. Clusters refer to
funeral homes and/or cemeteries that are grouped together in a geographic area.
Clusters provide cost savings to funeral homes and cemeteries through the
sharing of personnel, vehicles and other resources. In addition, the inclusion
of funeral homes and cemeteries in the same cluster provides opportunities for a
company to cross-sell the full range of death care services without
corresponding increases in incremental overhead expenses.
S-12
<PAGE> 193
Combined Operations
Combined operations, referring to funeral home and cemetery operations conducted
on a single site, have become increasingly popular as they provide cost savings
through shared resources and cross-selling opportunities. The ability to offer
the full range of products and services at one location tends to increase the
sales volume and revenues of both the funeral home and cemetery.
Pre-need Marketing
An increasing number of death care products and services are being sold prior to
the time of death (i.e., on a "pre-need" basis). SCI believes that consumers are
becoming more aware of the benefits of advanced planning, such as the financial
assurance and peace of mind achieved by establishing in advance a fixed price
and type of service, and the elimination of the emotional strain on family
members of making death care plans at the time of need.
Cremation
In recent years there has been steady, gradual growth in the number of families
in the United States that have chosen cremation as an alternative to traditional
methods of disposal. According to industry studies, cremations accounted for
approximately 20% of all dispositions of human remains in the United States in
1993. SCI's domestic operations perform substantially more cremations than the
national average. In 1993, just under 29% of all families served by SCI's North
American funeral homes selected the cremation alternative. SCI has a significant
number of operating locations in Florida and all along the west coast of North
America where the cremation alternative continues to gain acceptance. Based on
industry studies, the Company believes that cremations account for approximately
60% to 70% of all dispositions of human remains in Australia and in the United
Kingdom.
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<PAGE> 194
RECENT DEVELOPMENTS
OPERATING RESULTS
On October 20, 1994, the Company announced its results for the three months
ended September 30, 1994. For such period, the Company reported net income of
$28.6 million, or $.33 per share on a primary basis, on revenues of $277.8
million and operating income of $66.3 million. For the comparable period in
1993, net income was $19.8 million, or $.23 per share on a primary basis,
revenues were $211.4 million and operating income was $47.5 million. For the
nine months ended September 30, 1994, the Company reported net income of $96.2
million, or $1.12 per share on a primary basis, on revenues of $801.9 million
and operating income of $207.7 million. For the comparable period in 1993,
before the cumulative effect of a January 1, 1993 accounting change, net income
was $73.4 million, or $.89 per share on a primary basis, revenues were $652.9
million and operating income was $162.0 million. Results for the three months
and nine months ended September 30, 1993 include a $3.2 million, or $.04 per
share, charge to reflect the retroactive impact of the Omnibus Budget
Reconciliation Act of 1993. Results for the three months and nine months ended
September 30, 1994 include approximately one month of results of Great Southern
and Plantsbrook.
INTERNATIONAL DEVELOPMENTS
The Company is considering the desirability and feasibility of an acquisition of
Pompes Funebres Generales S.A. ("PFG"), which operates approximately 150 funeral
homes or similar facilities and 750 other retail outlets in France and is the
largest operator of funeral homes in France. Although the Company has had, and
intends to continue, exploratory discussions with Lyonnaise des Eaux-Dumez S.A.
("Lyonnaise"), which controls approximately 66% of the stock of PFG, in regard
to various potential transactions, Lyonnaise has advised the Company that it has
no intention of selling its interest in PFG. The balance of the stock of PFG is
publicly traded, and the current total market capitalization of PFG is
approximately U.S. $185 million. For the year ended December 31, 1993, PFG
reported revenues of approximately U.S. $565 million and net income of
approximately U.S. $20 million. Subsequent to December 31, 1993, PFG sold its
46% interest in Plantsbrook to the Company. The results for PFG disclosed above
include all of the revenues of Plantsbrook during such period, and PFG's 46%
interest in Plantsbrook's net income. For the year ended December 31, 1993,
Plantsbrook reported revenues of approximately U.S.$77.7 million and net income
of approximately U.S. $12.3 million. The operating margins of the funeral
business in France historically have been substantially lower than the operating
margins in the funeral business in North America and in the United Kingdom. The
Company has retained an affiliate of J.P. Morgan Securities Inc. to assist it in
its evaluation of PFG. Particularly in light of the statement by Lyonnaise that
it has no intention of selling its interest in PFG, there can be no assurance
that any transaction involving the Company and PFG will ultimately occur or as
to the terms of any such transaction.
In October 1994, the Company announced that it had acquired approximately 8.5%
of the Class A Voting Shares and approximately 19.9% of the Class B Non-Voting
Shares of Arbor Memorial Services Inc. ("Arbor"). Arbor owns 44 cemeteries and
21 crematoria in Canada. The Company, which acquired its position in Arbor as a
strategic investment, is continuing to consider means to build its relationship
with Arbor and may continue to increase its investment in Arbor. Subsequent to
the announcement by the Company of its position in Arbor, the Company was
advised by the Arbor stockholder who owns a majority of the Class A Voting
Shares that he is not interested at this time in a transaction involving a sale
of control of Arbor. For the year ended October 31, 1993, Arbor reported
revenues of approximately U.S. $78.1 million and net income of approximately
U.S. $4.5 million.
The financial data contained herein with respect to PFG, Plantsbrook and Arbor
is derived from such companies' publicly available information. Such data was
not prepared in conformity with United States generally accepted accounting
principles, and the Company makes no representation with respect to the accuracy
of such data or the comparability of such data to financial data of the Company
or other U.S. companies in the death care industry.
S-14
<PAGE> 195
CERTAIN INVESTMENT CONSIDERATIONS
In evaluating an investment in the TECONS, prospective purchasers should
carefully consider the following factors, together with (i) information included
elsewhere in this Prospectus and (ii) information incorporated herein by
reference (which may modify or supersede the factors set forth below).
SUBORDINATION
SCI's obligations under the Guarantee relating to the TECONS are subordinate and
junior in right of payment to all other liabilities of SCI (see "Description of
the LLC Preferred Securities -- Description of the Guarantee -- Status of the
Guarantee"), and its guarantee of SCI Limited's obligations under the Loan
Agreement pursuant to which the proceeds of this offering of TECONS will be
loaned by SCI Finance to SCI Limited (the "Loan Agreement") is subordinate and
junior in right of payment to Senior Indebtedness (as defined under "Description
of the LLC Preferred Securities -- Description of the Loans -- Subordination")
of SCI. At June 30, 1994, SCI had approximately $3.1 billion of consolidated
total liabilities, of which approximately $988 million would have constituted
secured debt or Senior Indebtedness. Substantially all of the rest of such
obligations constituted liabilities of subsidiaries of SCI as to which the
Guarantee and SCI's guarantee under the Loan Agreement are effectively
subordinated with respect to the assets of such subsidiaries.
RIGHT TO EXTEND INTEREST PAYMENTS
SCI Limited has the right under the Loan Agreement to extend interest payments
for up to 60 monthly interest payment periods in the aggregate over the term of
the Loans, and, as a consequence, monthly dividends on the TECONS can be
deferred (but will continue to accumulate) by SCI Finance during any such
extended interest payment period. In the event that SCI Limited exercises this
right, SCI may not declare dividends on any share of its preferred or common
stock. Should an extended interest payment period occur, SCI Finance will
continue to accrue income for U.S. federal income tax purposes which will be
allocated, but not distributed, to record holders of the TECONS. As a result,
such holders will include interest in gross income for U.S. federal income tax
purposes in advance of the receipt of cash, and any such holders who dispose of
the TECONS prior to the record date for payment of dividends following such
period will also include interest in gross income but will not receive cash
related thereto.
CERTAIN UNITED STATES TAX CONSEQUENCES
A holder of the TECONS will recognize gain or loss upon conversion of TECONS
into SCI Common Stock. By contrast, a holder of an issuer's conventional
convertible preferred shares or debt generally does not recognize gain or loss
until disposing of such issuer's common stock received on conversion of such
preferred shares or debt. See "Certain Federal Income Tax Considerations
Regarding the LLC Preferred Securities -- Conversion of LLC Preferred
Securities." No portion of the income from the TECONS will be eligible for the
dividends received deduction for purposes of United States federal income
taxation.
ABSENCE OF PRIOR PUBLIC MARKET
There is currently no trading market for the TECONS. If the TECONS are traded
after their initial issuance, they may trade at a discount from their initial
offering price depending upon the current market price of the SCI Common Stock,
the market for similar securities and other factors. No assurance can be given
that any market for the TECONS will develop or, if any such market develops, as
to the liquidity of such market. In addition, no assurance can be given that a
holder of such TECONS will be able to sell such TECONS in the future or that
such sale will be at a price equal to or higher than the initial offering price
of such TECONS. Furthermore, announcements and disclosures regarding SCI and/or
SCI Finance could affect the market prices for the TECONS.
S-15
<PAGE> 196
USE OF PROCEEDS
The proceeds to SCI Finance from the sale of the TECONS offered hereby are
estimated to be $150 million ($172.5 million if the Underwriters' over-allotment
option is exercised in full). The net proceeds from the Common Stock Offering
are estimated to be $ million ($ million if the underwriters'
over-allotment option in respect of the Common Stock is exercised in full). The
Company will contribute $40 million of the net proceeds from the Common Stock
Offering to SCI Finance ($46 million if the underwriters' over-allotment in
respect of the TECONS is exercised in full). Substantially all of the aggregate
proceeds so obtained by SCI Finance from the Company and from the sale of the
TECONS offered hereby will be loaned by SCI Finance to SCI International
Limited, a wholly-owned subsidiary of SCI ("SCI Limited"), which will use such
proceeds to repay a portion of the amounts outstanding under the UK Facilities
(as defined below). In connection with the acquisitions of Great Southern and
Plantsbrook, a subsidiary of SCI Limited obtained a L185 million loan facility
from Morgan Guaranty Trust Company of New York (the "Morgan Facility") and a
L100 million line of credit from Chemical Bank (the "Chemical Facility" and,
together with the Morgan Facility, the "UK Facilities"). SCI has guaranteed the
UK Facilities. As of September 30, 1994, and giving effect to the exchange rate
as of such date of approximately $1.58 to L1, approximately $210 million was
outstanding under the Morgan Facility at a weighted average annual interest rate
of 5.61% with maturities ranging from five to 45 days, and approximately $103
million was outstanding under the Chemical Facility at a weighted average annual
interest rate of 5.67% with maturities ranging from 17 to 28 days. It is
anticipated that after giving effect to the application of the proceeds of the
TECONS Offering and the Common Stock Offering, an aggregate of approximately
$200 million will be outstanding under the UK Facilities, which the Company
intends to refinance with the proceeds from a note offering (the "UK Note
Offering") proposed to be made in the United Kingdom in early 1995. To the
extent that the proceeds of the UK Note Offering are less than $200 million, the
Company intends to use a portion of the proceeds from the Common Stock Offering
to effect the repayment of additional amounts outstanding under the UK
Facilities.
Morgan Guaranty Trust Company of New York, an affiliate of J.P. Morgan
Securities Inc., is the lender under the Morgan Facility. The maximum amount
available under the Morgan Facility is approximately $292 million. The Company
intends to repay the Morgan Facility in full with a combination of proceeds from
the TECONS Offering, the Common Stock Offering and the UK Note Offering. See
"Underwriting."
RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The following table sets forth SCI's consolidated ratio of earnings to combined
fixed charges and preferred stock dividend requirements for the periods shown:
- ------------------------------------------------------------
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEARS ENDED DECEMBER 31,
1994 1993 1993 1992 1991 1990 1989
- ----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
3.65 3.36 3.19 3.03 2.82 2.62 2.38
</TABLE>
For purposes of computing the ratio of earnings to combined fixed charges and
preferred stock dividend requirements, earnings consist of income from
continuing operations before income taxes, less undistributed income of equity
investees which are less than 50% owned, plus the minority interest of
majority-owned subsidiaries with fixed charges and plus fixed charges (excluding
capitalized interest and preferred dividends). Combined fixed charges consist of
interest expense, whether capitalized or expensed, amortization of debt costs,
one-third of rental expense which SCI considers representative of the interest
factor in the rentals and preferred dividend requirements. For purposes of
determining combined fixed charges and preferred stock dividend requirements,
preferred dividends are calculated on the basis of the amount of pre-tax income
required to pay preferred dividends.
S-16
<PAGE> 197
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The SCI Common Stock is traded on the NYSE under the symbol "SRV." The following
table sets forth, on a per share basis for the periods shown, the range of high
and low reported sale prices of the SCI Common Stock on the NYSE as well as per
share dividends paid in such periods. SCI has declared 86 consecutive quarterly
dividends on the SCI Common Stock since it began paying dividends in 1974.
<TABLE>
<CAPTION>
--------------------------------------
SALE PRICE
HIGH LOW DIVIDENDS
---------- ---------- ----------
<S> <C> <C> <C>
Fiscal Year Ended December 31, 1992:
First Quarter $ 18.38 $ 15.63 $ .09
Second Quarter 18.75 16.13 .10
Third Quarter 18.50 16.38 .10
Fourth Quarter 18.50 16.75 .10
Fiscal Year Ended December 31, 1993:
First Quarter $ 21.63 $ 17.88 $ .10
Second Quarter 22.13 18.50 .10
Third Quarter 25.25 20.75 .10
Fourth Quarter 26.38 23.50 .10
Fiscal Year Ending December 31, 1994:
First Quarter $ 28.00 $ 24.63 $ .105
Second Quarter 25.38 22.50 .105
Third Quarter 26.63 24.88 .105
Fourth Quarter (through November 2, 1994) 26.88 24.13 .105
</TABLE>
On November 2, 1994, the reported last sale price of the SCI Common Stock on the
NYSE was $26.625 per share.
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<PAGE> 198
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of the
Company at June 30, 1994 and on a pro forma basis giving effect to the
acquisitions of Great Southern and Plantsbrook and as adjusted for the TECONS
Offering and the Common Stock Offering (assuming in each case that the
underwriters' over-allotment option is not exercised), the Senior Notes Offering
and the application of the estimated net proceeds from such offerings.
<TABLE>
<CAPTION>
--------------------------
AT JUNE 30, 1994
PRO FORMA
AND
Thousands ACTUAL AS ADJUSTED
---------- -----------
<S> <C> <C>
CURRENT MATURITIES OF LONG-TERM DEBT $ 67,945 $ 68,715
========== ==========
LONG-TERM DEBT:
Indebtedness to banks under revolving credit agreements and
commercial paper $ 467,784 $ 206,670
Indebtedness under the UK Facilities -- 200,000
Notes offered in the Senior Notes Offering -- 200,000
Medium term notes 186,040 186,040
6.5% convertible subordinated debentures 172,500 172,500
7.875% debentures 150,000 150,000
Convertible debentures issued in connection with various
acquisitions 23,624 23,624
8% convertible debentures 16,074 16,074
Variable interest rate notes 10,624 10,624
Mortgage notes and other 91,294 104,397
---------- ----------
Total long-term debt 1,117,940 1,269,929
---------- ----------
CONVERTIBLE PREFERRED STOCK OF SUBSIDIARY -- 150,000
---------- ----------
STOCKHOLDERS' EQUITY:
Preferred stock, 1,000 shares authorized; no shares issued and
outstanding -- --
Common stock, 200,000 shares authorized; 86,028 shares issued
and outstanding; 93,728 shares issued and outstanding pro
forma and as adjusted 86,028 93,728
Capital in excess of par value 524,399 710,207
Retained earnings 334,376 334,376
Foreign translation adjustment (4,883) (4,883)
---------- ----------
Total stockholders' equity 939,920 1,133,428
---------- ----------
Total capitalization $2,057,860 $2,553,357
========== ==========
</TABLE>
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<PAGE> 199
SELECTED FINANCIAL INFORMATION
The selected consolidated financial data presented below for each of the five
years in the period ended December 31, 1993 have been derived from the
consolidated financial statements of the Company, which statements, in respect
of the year ended December 31, 1993, have been audited by Coopers & Lybrand,
independent public accountants, and in respect of the four years ended December
31, 1992, have been audited by Ernst & Young, independent public accountants.
The data at and for the six months ended June 30, 1994 and June 30, 1993 have
been derived from the unaudited consolidated financial statements of the Company
for such periods and, in the opinion of management, include all adjustments
(consisting only of normal recurring adjustments) necessary to state fairly the
information included therein in accordance with generally accepted accounting
principles for interim financial information. The data should be read in
conjunction with the related notes and other financial information included and
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1993 and the Company's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 1994, incorporated by reference herein.
Results for the six months ended June 30, 1994 are not necessarily indicative of
results for any other interim period or for the year as a whole.
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------
AT OR FOR THE SIX MONTHS
Thousands, except per share ENDED JUNE 30, AT OR FOR THE YEARS ENDED DECEMBER 31,(1)
amounts and Other Data 1994 1993 1993 1992 1991 1990 1989
----------- ----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues $524,120 $441,420 $899,178 $772,477 $643,248 $563,156 $518,809
Costs and expenses (357,837) (308,029) (635,858) (550,422) (464,740) (413,236) (386,032)
----------- ----------- ----------- ----------- ----------- ----------- -----------
Gross profit 166,283 133,391 263,320 222,055 178,508 149,920 132,777
General and administrative
expenses (24,871) (18,887) (43,706) (38,693) (35,448) (28,037) (28,423)
----------- ----------- ----------- ----------- ----------- ----------- -----------
Income from operations 141,412 114,504 219,614 183,362 143,060 121,883 104,354
Interest expense (32,456) (28,888) (59,631) (53,902) (42,429) (36,095) (32,514)
Other income 4,686 2,665 13,509 9,876 8,241 13,644 12,778
----------- ----------- ----------- ----------- ----------- ----------- -----------
Income from continuing
operations before income taxes
and preferred dividend
requirements 113,642 88,281 173,492 139,336 108,872 99,432 84,618
Provision for income taxes (46,002) (34,700) (70,400) (52,800) (35,500) (35,900) (31,000)
----------- ----------- ----------- ----------- ----------- ----------- -----------
Income from continuing
operations before cumulative
effect of change in accounting
principles and preferred
dividend requirements 67,640 53,581 103,092 86,536 73,372 63,532 53,618
Cumulative effect of change in
accounting principles (net of
income tax) -- (2,031) (2,031) -- -- -- --
Preferred dividend requirements -- -- -- -- -- (3,314) (6,897)
----------- ----------- ----------- ----------- ----------- ----------- -----------
Income from continuing
operations available to common
stockholders $ 67,640 $ 51,550 $ 101,061 $ 86,536 $ 73,372 $ 60,218 $ 46,721
========== ========== ========== ========== ========== ========== ==========
Per share:
Primary
Income from continuing
operations before
cumulative effect of
change in accounting
principles $ .79 $ .66 $1.24 $1.13 $1.03 $ .85 $ .65
Cumulative effect of change
in accounting principles
(net of income tax) -- (.03) (.03) -- -- -- --
---- ---- ---- ---- ---- ---- ----
Income from continuing
operations available to
common stockholders $ .79 $ .63 $1.21 $1.13 $1.03 $ .85 $ .65
==== ==== ==== ==== ==== ==== ====
Fully diluted
Income from continuing
operations before
cumulative effect of
change in accounting
principles $ .74 $ .62 $1.19 $1.07 $1.00 $ .84 $ .65
Cumulative effect of change
in accounting principles
(net of income tax) -- (.02) (.02) -- -- -- --
---- ---- ---- ---- ---- ---- ----
Income from continuing
operations available to
common stockholders $ .74 $ .60 $1.17 $1.07 $1.00 $ .84 $ .65
==== ==== ==== ==== ==== ==== ====
Dividends $ .21 $ .20 $ .40 $ .39 $ .37 $ .37 $ .36
==== ==== ==== ==== ==== ==== ====
BALANCE SHEET DATA:
Working capital $ 135,103 $ 176,768 $ 171,901 $ 155,319 $ 156,383 $ 113,391 $ 120,682
Prearranged funeral contracts 1,298,558 1,157,377 1,244,866 -- -- -- --
Total assets 4,023,735 3,327,189 3,683,304 2,611,123 2,123,452 1,653,689 1,601,468
Long-term debt, excluding
current portion 1,117,940 927,544 1,062,222 980,029 786,685 577,378 485,669
Deferred prearranged funeral
contract revenues 1,375,843 1,191,105 1,263,407 -- -- -- --
Stockholders' equity 939,920 827,645 884,513 683,097 615,776 434,323 557,777
Total capitalization 2,057,860 1,755,189 1,946,735 1,663,126 1,402,461 1,011,701 1,043,446
OTHER DATA (END OF PERIOD):
Funeral homes 873 696 792 674 655 512 551
Cemeteries 204 176 192 176 163 145 126
</TABLE>
- ---------------
(1) The year ended December 31, 1993 reflects the changes in accounting
principles adopted January 1, 1993. The four years ended December 31, 1992
reflect results as historically reported.
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<PAGE> 200
UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
In June 1994, the Company announced an unsolicited offer to acquire 100% of the
outstanding shares of GSG. As of September 30, 1994, the Company owned, or had
commitments to acquire, in excess of 98% of GSG's voting shares. The Company
anticipates that the total purchase price will approximate $192,777,000,
including the assumption of approximately $14,751,000 of existing debt. GSG is a
funeral provider in the United Kingdom ("UK") and owns 157 funeral homes, 13
crematoria and two cemeteries.
In September 1994, the Company announced its offer to acquire 100% of the
outstanding shares of PG. As of September 30, 1994, the Company owned, or had
commitments to acquire, in excess of 95% of PG's voting shares. The Company
anticipates that the total purchase price will approximate $312,690,000,
including the assumption of approximately $13,873,000 of existing debt. PG is a
funeral provider in the UK and owns 380 funeral homes.
In addition to the acquisitions of GSG and PG, during 1993 and the six months
ended June 30, 1994, the Company continued to acquire funeral and cemetery
operations in the United States, Australia and Canada. Excluding GSG and PG,
during such period the Company acquired 195 funeral homes and 33 cemeteries (the
"Other Acquired Companies") in 78 separate transactions for an aggregate
purchase price of approximately $395,000,000 in the form of combinations of
cash, SCI Common Stock, issued and assumed debt, convertible debentures and
retired loans receivable held by Provident.
The following unaudited pro forma combined balance sheet as of June 30, 1994 has
been prepared assuming the acquisitions by the Company of GSG and PG took place
on June 30, 1994 and the unaudited pro forma combined statements of income for
the year ended December 31, 1993 and the six months ended June 30, 1994 have
been prepared assuming the acquisitions by the Company of GSG, PG and the Other
Acquired Companies took place at the beginning of the respective periods. Such
acquisitions are being accounted for under the purchase method of accounting.
The historical revenues and expenses of the Other Acquired Companies represent
amounts recorded by those businesses for the period that they were not owned by
the Company during the year ended December 31, 1993 and the six months ended
June 30, 1994, respectively. The unaudited pro forma combined financial
information may not be indicative of results that would have actually resulted
if these transactions had occurred on the dates indicated or which may be
obtained in the future.
The acquisitions of GSG and PG are being financed on an interim basis
principally with borrowings under the UK Facilities, under which the Company may
borrow up to $438,900,000 (based on the exchange rate of one UK pound sterling
equivalent to $1.54 on June 30, 1994) with interest at a rate equal to UK pound
sterling LIBOR plus 20 basis points. The unaudited pro forma combined financial
information presented herein assumes the completion of the Common Stock
Offering, the TECONS Offering and the Senior Notes Offering on June 30, 1994
with respect to the unaudited pro forma combined balance sheet and at the
beginning of the respective periods with respect to the unaudited pro forma
combined statements of income. The proceeds from the TECONS Offering and a
portion of the net proceeds from the Common Stock Offering are assumed to be
used to repay $238,900,000 of indebtedness under the UK Facilities, and it is
further assumed that $200 million remains outstanding under the UK Facilities as
of the date of the unaudited pro forma combined balance sheet and at the
beginning of the respective periods with respect to the unaudited pro forma
combined statements of income. The remaining net proceeds from the Common Stock
Offering and all of the net proceeds from the Senior Notes Offering are assumed
to be used to repay amounts outstanding under the Revolving Credit Facilities or
to retire commercial paper or both (including $37,680,000 which was assumed to
have been borrowed to finance a portion of the purchase price of GSG and PG).
The historical financial statements of GSG and PG as of June 30, 1994, and for
the year and six months ended December 31, 1993 and June 30, 1994, respectively,
were prepared in UK pound sterling in accordance with the UK Companies Act of
1985 ("UK GAAP"). This information has been adjusted to present the historical
financial statements in accordance with United States generally accepted
accounting principles ("US GAAP") and translated into U.S. dollars at the
exchange rate in effect at the balance sheet date or the average exchange rate
for the respective statement of income periods presented. The Company has not
completed all appraisals and evaluations necessary to finalize GSG's and PG's
purchase price allocation, and accordingly, actual adjustments that reflect
appraisals and other evaluations of the purchased assets and assumed liabilities
may differ from the pro forma adjustments.
S-20
<PAGE> 201
SERVICE CORPORATION INTERNATIONAL
UNAUDITED PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1994
<TABLE>
<CAPTION>
------------------------------------------------------
HISTORICAL PRO FORMA
THE COMBINED
Thousands COMPANY GSG AND PG ADJUSTMENTS TOTAL
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 38,638 $ 3,882 $ -- $ 42,520
Receivables, net of allowances 240,774 17,245 -- 258,019
Inventories 52,233 2,736 -- 54,969
Other 13,860 -- -- 13,860
---------- ---------- ---------- ----------
Total current assets 345,505 23,863 -- 369,368
Prearranged funeral contracts 1,298,558 -- 54,889 (A) 1,353,447
Long-term receivables 538,014 -- -- 538,014
Cemetery property, at cost 473,244 6,735 232,301 (B) 712,280
Property, plant and equipment, at cost (net) 666,092 87,749 4,066 (C) 759,952
2,045 (D)
Deferred charges and other assets 211,215 1,147 5,814 (E) 218,176
Goodwill -- 137,038 (137,038)(F) --
Names and reputations (net) 491,107 -- 264,422 (G) 755,529
---------- ---------- ---------- ----------
$4,023,735 $256,532 $426,499 $4,706,766
========== ========== ========== ==========
Liabilities & Stockholders' Equity
Current liabilities:
Accounts payable and accrued liabilities $ 121,520 $ 22,607 $ 15,015(H) $ 159,142
Income taxes 20,937 14,407 -- 35,344
Current maturities of long-term debt 67,945 9,332 (8,562)(I) 68,715
---------- ---------- ---------- ----------
Total current liabilities 210,402 46,346 6,453 263,201
Long-term debt 1,117,940 19,292 (6,189)(I) 1,269,929
200,000 (J)
200,000 (K)
37,680 (L)
(298,794)(L)
Deferred income taxes 168,209 1,014 77,334 (M) 246,557
Other liabilities 211,421 1,498 -- 212,919
Deferred prearranged funeral contract
revenues 1,375,843 -- 54,889 (A) 1,430,732
Convertible preferred stock of subsidiary -- -- 150,000 (N) 150,000
Stockholders' equity 939,920 188,382 (188,382)(O) 1,133,428
193,508 (P)
---------- ---------- ---------- ----------
$4,023,735 $256,532 $426,499 $4,706,766
========== ========== ========== ==========
</TABLE>
S-21
<PAGE> 202
SERVICE CORPORATION INTERNATIONAL
NOTES TO THE UNAUDITED PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1994
Thousands, except per share amount
One UK pound sterling equivalent to $1.54, which represents the exchange rate on
June 30, 1994
(A) To record the amount of prearranged funeral contracts outstanding and the
related deferred prearranged funeral contract revenues in accordance with
the Company's accounting policies for GSG ($38,719) and PG ($16,170). These
prearranged funeral contracts were not afforded balance sheet recognition
by GSG or PG.
(B) To increase GSG's cemeteries and cremation scatter gardens to estimated
fair value.
(C) To record various assets acquired from J. D. Field & Sons Limited (the
former majority shareholder of GSG) included as part of the acquisition of
GSG, consisting primarily of real estate associated with certain funeral
operations of GSG.
(D) To increase funeral home land and buildings to estimated fair value for
GSG.
(E) To record the estimated costs and expenses to be incurred in connection
with the TECONS Offering and the Senior Notes Offering. A portion of the
net proceeds of the Common Stock Offering ($4,078) is being used to pay the
costs and expenses to be invested in connection with the TECONS Offering.
(F) To eliminate the previously recorded GSG and PG goodwill.
(G) To allocate the excess of the purchase price over the estimated fair value
of PG net assets acquired to names and reputations. The estimated fair
value of the GSG net assets acquired fully absorbed the GSG purchase price.
(H) To accrue costs anticipated to be incurred in connection with the
acquisitions of GSG ($7,315) and PG ($7,700).
(I) To record the repayment of GSG existing debt.
(J) To record the amount assumed to remain outstanding under the UK Facilities
($200,000) after the assumed repayment of a portion of the UK Facilities
($238,900) from the proceeds from the TECONS Offering ($150,000) and a
portion of the net proceeds from the Common Stock Offering ($88,900).
(K) To record the Notes being issued in the Senior Notes Offering.
(L) To reflect borrowings under the Revolving Credit Facilities and/or through
the issuance of commercial paper to finance a portion of the purchase price
of GSG and PG ($37,680) and the use of $100,530 of the net proceeds of the
Common Stock Offering and all of the $198,264 net proceeds of the Senior
Notes Offering to the repayment of amounts outstanding under the Revolving
Credit Facilities and/or to retire commercial paper.
(M) To provide for additional deferred income taxes for GSG resulting from
differences in the carrying values of net assets for financial statement
and tax purposes.
(N) To record the aggregate liquidation preference of the securities being
offered in the TECONS Offering.
(O) To eliminate the historical stockholders' equity of GSG ($37,505) and PG
($150,877).
(P) To reflect the net proceeds from the issuance of 7,700 shares in the Common
Stock Offering at an assumed public offering price of $26 per share.
S-22
<PAGE> 203
The following adjustments were made to the historical financials of GSG and PG
in order to restate historical financial statements to US GAAP:
<TABLE>
<CAPTION>
--------------------------------------------------------------------
AS REPORTED
IN UNAUDITED
HISTORIC AMOUNTS PRO FORMA
CONVERTED TO US ADJUSTMENTS TO COMBINED
DOLLARS IN UK GAAP US GAAP BALANCE SHEET
GSG PG GSG PG GSG PG
------- ------- ------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Property, plant and equipment $37,016 $60,616 $(8,351)(1) $(1,532)(1) $28,665 $59,084
Goodwill -- -- 20,372(2) 116,666(2) 20,372 116,666
Deferred income taxes -- -- -- 1,014(3) -- 1,014
Stockholders' equity 25,484 36,757 12,021 114,120 37,505 150,877
</TABLE>
- ---------------
(1) To record the accumulated depreciation for GSG's and PG's buildings using a
50 year straight-line life. UK GAAP does not require the depreciation of
buildings.
(2) To reclass goodwill, net of accumulated amortization, which was previously
charged against equity as allowed by UK GAAP.
(3) To record certain deferred tax adjustments required by US GAAP.
S-23
<PAGE> 204
SERVICE CORPORATION INTERNATIONAL
UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1993
<TABLE>
<CAPTION>
-------------------------------------------------------------------------
HISTORICAL PRO FORMA
OTHER ACQUIRED
Thousands, except per share amounts THE COMPANY GSG AND PG COMPANIES ADJUSTMENTS COMBINED TOTAL
----------- ---------- -------------- ----------- --------------
<S> <C> <C> <C> <C> <C>
Revenues $ 899,178 $ 126,594 $ 110,214 $ 5,165 (A) $1,141,151
Costs and expenses (635,858) (101,300 ) (95,534) (3,590)(A) (820,489)
11,842 (B)
7,781 (C)
(70)(D)
(6,611)(E)
3,598 (F)
(437)(G)
(310)(H)
----------- ---------- -------------- ----------- --------------
Gross profit 263,320 25,294 14,680 17,368 320,662
General and administrative expenses (43,706) -- -- -- (43,706)
----------- ---------- -------------- ----------- --------------
Income from operations 219,614 25,294 14,680 17,368 276,956
Interest expense (59,631) (2,560 ) (3,541) (686)(A) (86,366)
(6,071)(B)
1,372 (I)
(11,750)(J)
9,165 (K)
(16,980)(L)
4,316 (M)
Dividends on convertible preferred stock
of subsidiary -- -- -- (8,625)(N) (8,625)
Other income 13,509 313 -- -- 13,822
----------- ---------- -------------- ----------- --------------
Income before income taxes 173,492 23,047 11,139 (11,891) 195,787
Provision for income taxes (70,400) (8,681 ) (4,167) 3,838 (O) (79,410)
----------- ---------- -------------- ----------- --------------
Income before cumulative effect
of change in accounting
principles $ 103,092 $ 14,366 $ 6,972 $ (8,053) $ 116,377
========== ========= =========== ========= ===========
Earnings per share:
Primary
Income before cumulative effect
of change in accounting
principles $1.24 $1.25
Fully diluted ===== =====
Income before cumulative effect
of change in accounting
principles $1.19 $1.20
===== =====
Primary weighted average number of shares 83,372 1,680(P) 92,752
====== 7,700(Q) ======
Fully diluted weighted average number of
shares 93,878 2,299(P) 108,685
======= 7,700(Q) =======
4,808(R)
</TABLE>
S-24
<PAGE> 205
SERVICE CORPORATION INTERNATIONAL
NOTES TO THE UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1993
Thousands
One UK pound sterling equivalent to $1.493, which represents the average
exchange rate for the period
(A) To record the acquisition of 13 separate businesses acquired at various
dates by PG between January 1, 1993 and June 30, 1994 as if such
acquisitions had occurred on January 1, 1993. Internally generated funds
were used for the purchase of these businesses; however, for purposes of
the unaudited pro forma combined statement of income, imputed interest
expense, calculated on the purchase price, has been included at a rate of
6%, which approximates the Company's UK borrowing rate.
(B) To record an adjustment to costs and expenses for the Other Acquired
Companies based on results actually achieved by the Company for the periods
subsequent to acquisition in the amount of $14,432, offset in part by
additional costs and expenses of $2,590 resulting from the effect of
applying purchase accounting adjustments, primarily amortization and
depreciation.
Interest expense was added for debt, including convertible debentures,
issued in the purchase of the Other Acquired Companies at stated rates. In
addition, interest expense has been added for the cash portion of the
purchase price assumed to be borrowed by the Company at a weighted average
annual interest rate of 3.51%, which represented the weighted average
borrowing rate under the Revolving Credit Facilities and commercial paper
for the year ended December 31, 1993. At September 30, 1994, the borrowing
rate under the Revolving Credit Facilities and commercial paper was 5.03%.
(C) To eliminate corporate expenses, consisting primarily of duplicate
personnel expenses, related to the acquisitions of GSG and PG.
(D) To record the depreciation expense (based on a 50 year useful life and
straight-line depreciation) on GSG's funeral home buildings resulting from
the estimated change in fair value over historical cost. See Note (D) to
the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(E) To record the amortization of names and reputations (based on a 40 year
straight-line amortization) created from the acquisition of PG by the
Company. See Note (G) to the Notes to the Unaudited Pro Forma Combined
Balance Sheet.
(F) To eliminate the historical GSG and PG goodwill amortization expense.
(G) To record the cost of GSG's cemetery and cremation memorialization
interment rights sold.
(H) To record the estimated amortization expense expected to result from the
costs and expenses associated with the TECONS Offering and the Senior Notes
Offering. See Note (E) to the Notes to the Unaudited Pro Forma Combined
Balance Sheet.
(I) To eliminate the interest expense on GSG debt to be repaid by the Company.
(J) To record the estimated interest expense on the net amount borrowed under
the UK Facilities ($200,000) in connection with the acquisitions of GSG and
PG as if such amount had been borrowed on January 1, 1993. The estimated
interest expense reflects a rate equal to the average UK pound sterling
LIBOR rate (5.86%) plus 20 basis points for the year ended December 31,
1993. At September 30, 1994, the UK pound sterling LIBOR rate was 5.88%.
See Note (J) to the Notes to the Unaudited Pro Forma Combined Balance
Sheet.
(K) To record the estimated reduction in interest expense resulting from the
expected repayment of $261,114 of indebtedness under the Revolving Credit
Facilities and/or the Company's commercial paper. The reduction was
calculated using a weighted average annual interest rate of 3.51%, which
represents the Company's weighted average borrowing rate under the
Revolving Credit Facilities and the Company's commercial paper for the year
ended December 31, 1993. See Note (L) to the Notes to the Unaudited Pro
Forma Combined Balance Sheet.
S-25
<PAGE> 206
(L) To record the estimated interest expense on the Notes being issued in the
Senior Notes Offering at an assumed annual interest rate of 8.49%. See Note
(K) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(M) To record the estimated reduction in net interest expense achieved from a
planned cross currency hedging transaction as if such transaction had been
entered into on January 1, 1993. This transaction will effectively convert
$272,500 of U.S. fixed rate indebtedness into floating rate UK pound
sterling indebtedness, raising SCI's total UK pound sterling exposure to
$472,500, which is comparable to the size of the acquisitions of GSG and
PG. Such transaction is assumed to allow the Company to receive fixed rate
interest on the $272,500 at a weighted average rate of 8.38% and pay UK
pound sterling LIBOR plus 41 basis points on $200,000 and pay UK pound
sterling LIBOR on $72,500.
(N) To record the estimated dividends on the securities being issued in the
TECONS Offering at an assumed annual dividend rate of 5.75%. See Note (N)
to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(O) To record the tax effect of the pro forma adjustments, including a $947 tax
benefit from the amortization of deferred taxes resulting from indexed
increases in the tax basis of UK assets.
(P) To give effect to the additional time period during which the SCI Common
Stock (in the case of the primary and fully diluted weighted average number
of shares) and convertible debt (in the case of the fully diluted weighted
average number of shares) issued during the period between January 1, 1993
and June 30, 1994 in respect to the acquisition of the Other Acquired
Companies would have been outstanding if all of such acquisitions had
occurred as of January 1, 1993.
(Q) To reflect the issuance of 7,700 shares in the Common Stock Offering. See
Note (P) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(R) To record the impact on the fully diluted weighted average number of shares
of SCI Common Stock of the securities being issued in the TECONS Offering.
The following adjustments were made to the historical financials of GSG and PG
in order to restate historical financial statements to US GAAP:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------
HISTORIC AMOUNTS AS REPORTED IN
CONVERTED TO US UNAUDITED
DOLLARS ADJUSTMENTS TO PRO FORMA COMBINED
IN UK GAAP US GAAP STATEMENT OF INCOME
GSG PG GSG PG GSG PG
-------- -------- ----- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Revenues $48,885 $77,709 $ -- $ -- $48,885 $77,709
Costs and expenses (38,234) (58,893) (272)(1) (303)(1) (39,078) (62,222)
(572)(2) (3,026)(2)
Interest expense and other (1,372) (875) -- -- (1,372) (875)
Provision for income taxes (3,228) (5,645) 90(1) 102(1) (3,138) (5,543)
-------- -------- ----- ------- -------- --------
Net income $6,051 $12,296 $(754) $(3,227) $5,297 $9,069
======== ======== ===== ======= ======== ========
</TABLE>
- ---------------
(1) To depreciate buildings straight-line over 50 years for GSG and PG. UK GAAP
does not require the depreciation of buildings.
(2) To amortize PG's historical goodwill balance straight-line over 40 years. UK
GAAP does not require the amortization of goodwill.
S-26
<PAGE> 207
SERVICE CORPORATION INTERNATIONAL
UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
SIX MONTHS ENDED JUNE 30, 1994
<TABLE>
<CAPTION>
--------------------------------------------------------------------
HISTORICAL PRO FORMA
OTHER
ACQUIRED COMBINED
Thousands, except per share amounts THE COMPANY GSG AND PG COMPANIES ADJUSTMENTS TOTAL
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Revenues $524,120 $66,925 $15,271 $ 1,146 (A) $607,462
Costs and expenses (357,837) (52,737) (13,583) (770)(A) (422,047)
1,907 (B)
2,818( C)
(35)(D)
(3,305)(E)
1,868 (F)
(218)(G)
(155)(H)
---------- ---------- ---------- ---------- ----------
Gross profit 166,283 14,188 1,688 3,256 185,415
General and administrative expenses (24,871) -- -- -- (24,871)
---------- ---------- ---------- ---------- ----------
Income from operations 141,412 14,188 1,688 3,256 160,544
Interest expense (32,456) (1,023) (466) (329)(A) (41,337)
(1,228)(B)
581 (I)
(5,215)(J)
5,131 (K)
(8,490)(L)
2,158 (M)
Dividends on convertible preferred
stock of subsidiary -- -- -- (4,313) (N) (4,313)
Other income 4,686 197 -- -- 4,883
---------- ---------- ---------- ---------- ----------
Income before income taxes 113,642 13,362 1,222 (8,449) 119,777
Provision for income taxes (46,002) (4,878) (474) 2,928(O) (48,426)
---------- ---------- ---------- ---------- ----------
Net income $67,640 $8,484 $ 748 $(5,521) $71,351
========== ========== ========== ========== ==========
Earnings per share:
Primary $0.79 $0.76
===== =====
Fully diluted $0.74 $0.72
===== =====
Primary weighted average number of
shares 86,033 366 (P) 94,099
====== =======
7,700 (Q)
Fully diluted weighted average number
of shares 96,166 455 (P) 109,129
====== =======
7,700 (Q)
4,808 (R)
</TABLE>
S-27
<PAGE> 208
SERVICE CORPORATION INTERNATIONAL
NOTES TO THE UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
SIX MONTHS ENDED JUNE 30, 1994
Thousands
One UK pound sterling equivalent to $1.5125, which represents the average
exchange rate for the period
(A) To record the acquisition of five separate businesses acquired at various
dates by PG between January 1, 1994 and June 30, 1994 as if such
acquisitions had occurred on January 1, 1994. Internally generated funds
were used for the purchase of these businesses; however, for purposes of
the unaudited pro forma combined statement of income, imputed interest
expense, calculated on the purchase price, has been included at a rate of
6%, which approximates the Company's UK borrowing rate.
(B) To record an adjustment to costs and expenses for the Other Acquired
Companies based on results actually achieved by the Company for the periods
subsequent to acquisition in the amount of $2,408, offset in part by
additional costs and expenses of $501 resulting from the effect of applying
purchase accounting adjustments, primarily amortization and depreciation.
Interest expense was added for debt, including convertible debentures,
issued in the purchase of the Other Acquired Companies at stated rates. In
addition, interest expense has been included for the cash portion of the
purchase price assumed to be borrowed by the Company at a weighted average
annual interest rate of 3.93%, which represented the weighted average
borrowing rate under the Revolving Credit Facilities and the Company's
commercial paper for the six months ended June 30, 1994. At September 30,
1994, the borrowing rate under the Revolving Credit Facilities and
commercial paper was 5.03%.
(C) To eliminate corporate expenses, consisting primarily of duplicate
personnel expenses, related to the acquisitions of GSG and PG.
(D) To record the depreciation expense (based on a 50 year useful life and
straight-line depreciation) on GSG's funeral home buildings resulting from
the estimated change in fair value over historical cost. See Note (D) to
the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(E) To record the amortization of names and reputations (based on a 40 year
straight-line amortization) created from the acquisition of PG by the
Company. See Note (G) to the Notes to the Unaudited Pro Forma Combined
Balance Sheet.
(F) To eliminate the historical GSG and PG goodwill amortization expense.
(G) To record the cost of GSG's cemetery and cremation memorialization
interment rights sold.
(H) To record the estimated amortization expense expected to result from the
costs and expenses associated with the TECONS Offering and the Senior Notes
Offering. See Note (E) to the Notes to the Unaudited Pro Forma Balance
Sheet.
(I) To eliminate the interest expense on GSG debt to be repaid by the Company.
(J) To record the estimated interest expense on the net amount borrowed under
the UK Facilities in connection with the acquisitions of GSG and PG as if
such amount had been borrowed on January 1, 1994. The estimated interest
expense reflects a rate equal to the average UK pound sterling LIBOR rate
(5.11%) plus 20 basis points for the six months ended June 30, 1994. At
September 30, 1994, the UK pound sterling LIBOR rate was 5.88%. See Note
(J) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(K) To record the estimated reduction in interest expense resulting from the
expected repayment of $261,114 of indebtedness under the Revolving Credit
Facilities and/or the Company's commercial paper. The reduction was
calculated using a weighted average annual interest rate of 3.93%, which
represents the Company's weighted average borrowing rate under the
Revolving Credit Facilities and the Company's commercial paper for the six
months ended June 30, 1994. See Note (L) to the Notes to the Unaudited Pro
Forma Combined Balance Sheet.
S-28
<PAGE> 209
(L) To record the estimated interest expense on the Notes being issued in the
Senior Notes Offering at an assumed annual interest rate of 8.49%. See Note
(K) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(M) To record the estimated reduction in net interest expense achieved from a
planned cross currency hedging transaction as if such transaction had been
entered into on January 1, 1994. This transaction will effectively convert
$272,500 of U.S. fixed rate indebtedness into floating rate UK pound
sterling indebtedness, raising SCI's total UK pound sterling exposure to
$472,500, which is comparable to the size of the acquisitions of GSG and
PG. Such transaction is assumed to allow the Company to receive fixed rate
interest on the $272,500 at a weighted average rate of 8.38% and pay UK
pound sterling LIBOR plus 41 basis points on $200,000 and pay UK pound
sterling LIBOR on $72,500.
(N) To record the estimated dividends on the securities being issued in the
TECONS Offering at an assumed annual dividend rate of 5.75%. See Note (N)
to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(O) To record the tax effect of the pro forma adjustments, including a $474 tax
benefit from the amortization of deferred taxes resulting from indexed
increases in the tax basis of UK assets.
(P) To give effect to the additional time period during which the SCI Common
Stock (in the case of the primary and fully diluted weighted average number
of shares) and convertible debt (in the case of the fully diluted weighted
average number of shares) issued during the period between January 1, 1994
and June 30, 1994 in respect to the acquisition of the Other Acquired
Companies would have been outstanding if all of such acquisitions had
occurred as of January 1, 1994.
(Q) To reflect the issuance of 7,700 shares in the Common Stock Offering. See
Note (P) to the Notes to the Unaudited Pro Forma Combined Balance Sheet.
(R) To record the impact on the fully diluted weighted average number of shares
of SCI Common Stock of the securities being issued in the TECONS Offerings.
The following adjustments were made to the historical financials of GSG and PG
in order to restate historical financial statements to US GAAP:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------
HISTORIC AMOUNTS
CONVERTED TO AS REPORTED IN UNAUDITED
US DOLLARS ADJUSTMENTS TO PRO FORMA COMBINED
IN UK GAAP US GAAP STATEMENT OF INCOME
GSG PG GSG PG GSG PG
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Revenues $25,986 $40,939 $ -- $ -- $25,986 $40,939
Costs and
expenses (19,625) (30,952) (138)(1) (154)(1) (20,053) (32,684)
(290)(2) (1,578)(2)
Interest expense
and other (581) (245) -- -- (581) (245)
Provision for
income taxes (1,906) (3,068) 45 (1) 51 (1) (1,861) (3,017)
---------- ---------- ---------- ---------- ---------- ----------
Net income $3,874 $6,674 $(383) $(1,681) $3,491 $4,993
========== ========== ========== ========== ========== ==========
</TABLE>
- ---------------
(1) To depreciate buildings straight-line over 50 years for GSG and PG. UK GAAP
does not require the depreciation of buildings.
(2) To amortize PG's historical goodwill balance straight-line over 40 years. UK
GAAP does not require the amortization of goodwill.
S-29
<PAGE> 210
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
OVERVIEW
The majority of the Company's funeral homes and cemeteries are managed in groups
called clusters. Clusters are primarily designated in metropolitan areas to take
advantage of operational efficiencies, including the sharing of operating
expenses such as service personnel, vehicles, preparation services, clerical
staff and certain building facility costs. At June 30, 1994, the Company has
approximately 166 clusters which ranged in size from two operations to 53
operations. There may be more than one cluster in a given metropolitan area,
depending upon the level and degree of shared costs.
The cluster management approach recognizes that, as the Company adds operations
to a geographic area that contains an existing Company presence, additional
operating efficiencies through cost sharing will be achieved and the Company
will also be in a better position to serve the population that resides within
the area served by the cluster. Funeral service and cemetery operations
primarily depend upon a long-term development of customer relationships and
loyalty. Over time, these client families may relocate within a cluster area
which may justify the relocation or addition of Company locations. The Company
attempts to satisfy this need for convenient locations by either acquiring
existing independent locations within the Company's cluster areas or
constructing satellite funeral homes (sometimes on Company-owned cemeteries)
while still maintaining the sharing of certain expenses within that cluster of
operations.
RESULTS OF OPERATIONS
Six Months Ended June 30, 1994 Compared to Six Months Ended June 30, 1993
Segment information for the Company's three lines of business are as follows:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------
SIX MONTHS ENDED JUNE 30, PERCENTAGE
Thousands 1994 1993 INCREASE INCREASE
---------- ---------- ---------- --------
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Funeral $350,008 $297,800 $52,208 17.5%
Cemetery 164,776 136,304 28,472 20.9
Financial services 9,336 7,316 2,020 27.6
---------- ---------- ----------
524,120 441,420 82,700 18.7
---------- ---------- ----------
Costs and expenses:
Funeral 240,612 206,665 33,947 16.4
Cemetery 112,073 97,122 14,951 15.4
Financial services 5,152 4,242 910 21.5
---------- ---------- ----------
357,837 308,029 49,808 16.2
---------- ---------- ----------
Gross profit and
margin percentage:
Funeral 109,396 31.3% 91,135 30.6% 18,261 20.0
Cemetery 52,703 32.0 39,182 28.7 13,521 34.5
Financial services 4,184 44.8 3,074 42.0 1,110 36.1
---------- ---------- ----------
$166,283 31.7% $133,391 30.2% $32,892 24.7%
========== ========== ==========
</TABLE>
S-30
<PAGE> 211
Funeral revenues were generated as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $311,770 $279,927 $31,843 11.4%
New clusters* 23,565 1,347 22,218
---------- ---------- ----------
Total clusters 335,335 281,274 54,061 19.2%
Non-cluster and disposed operations 14,673 16,526 (1,853)
---------- ---------- ----------
Total funeral revenues $350,008 $297,800 $52,208 17.5%
========== ========== ==========
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
The $31,843,000 increase in revenues at existing clusters was the result of
5,052 or 6.1% more funeral services performed and a $168 or 4.9% higher average
sales price. Included in this increase was $21,372,000 in revenues from
locations acquired since the beginning of 1993. It is anticipated that the
Company's revenue growth will primarily be generated from acquired operations
(added to existing clusters and the creation of new clusters) as well as higher
average sales prices.
During the six months ended June 30, 1994, the Company sold $108,749,000 of
prearranged funeral services compared to $70,142,000 for the same period in
1993. The revenues from prearranged funeral services are deferred and will be
recognized in funeral revenues in the periods that the funeral services are
performed. The current emphasis on sales of prearranged funerals is expected to
continue.
Funeral costs were incurred as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $198,393 $180,646 $17,747 9.8%
New clusters* 16,683 868 15,815
---------- ---------- ----------
Total clusters 215,076 181,514 33,562 18.5%
Non-cluster and disposed operations 11,390 12,334 (944)
Administrative overhead 14,146 12,817 1,329
---------- ---------- ----------
Total funeral costs $240,612 $206,665 $33,947 16.4%
========== ========== ==========
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
Total funeral gross profit margin increased to 31.3% compared to 30.6% recorded
last year. This gross profit margin improvement was achieved despite the large
number of acquisitions, added to both existing and new clusters, which have
occurred since the beginning of 1993. Typically, acquisitions will temporarily
exhibit slightly lower gross profit margins than the Company's existing
locations. Acquisitions since the beginning of 1993 accounted for $15,750,000 of
the existing cluster cost increase. The improved gross profit margin for
existing clusters reflects the increased revenues discussed above, without a
corresponding percentage increase in costs at other funeral homes included in
existing clusters. Administrative overhead costs related to funeral operations
decreased to 4.0% of revenues in 1994 compared to 4.3% of revenues in 1993.
S-31
<PAGE> 212
Cemetery revenues were generated as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $152,634 $130,671 $21,963 16.8%
New clusters* 6,599 -- 6,599
---------- ---------- ----------
Total clusters 159,233 130,671 28,562 21.9%
Non-cluster and disposed operations 5,543 5,633 (90)
---------- ---------- ----------
Total cemetery revenues $164,776 $136,304 $28,472 20.9%
========== ========== ==========
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
Revenues for the existing clusters increased primarily due to increased pre-need
and at need sales of merchandise and services. Included in the existing cluster
increase was $9,367,000 in increased revenues from cemeteries acquired since the
beginning of 1993.
Cemetery costs were incurred as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
SIX MONTHS ENDED
JUNE 30, INCREASE/ PERCENTAGE
Thousands 1994 1993 (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $97,135 $85,560 $11,575 13.5%
New clusters* 3,182 -- 3,182
---------- ---------- ----------
Total clusters 100,317 85,560 14,757 17.2%
Non-cluster and disposed operations 3,535 4,092 (557)
Administrative overhead 8,221 7,470 751
---------- ---------- ----------
Total cemetery costs $112,073 $97,122 $14,951 15.4%
========== ========== ==========
</TABLE>
- ---------------
* Represents new geographic areas entered into since the beginning of 1993 for
the period that those businesses were owned by the Company.
Costs at existing clusters increased $11,575,000 due primarily to an increase of
$6,626,000 from cemeteries acquired since the beginning of 1993. Costs from
other existing cluster cemeteries increased $4,949,000 due to the costs
associated with the increased revenues discussed above. The cemetery gross
margin of 32.0% this year compared to 28.7% last year reflects the strong
revenue growth as well as continued cost control, particularly in selling
expenses. Administrative overhead costs have decreased to 5.0% of revenues this
year compared to 5.5% last year.
Financial service revenues and costs have increased as a result of increased
loans outstanding. Improved interest rate spreads have increased the gross
margin percentage to 44.8% this year from 42.0% last year. The average
outstanding loan portfolio during the current year was $246,408,000 with an
average interest rate spread of 3.45% compared to $204,462,000 and 3.21%,
respectively, last year.
General and administrative expenses increased by $5,984,000 or 31.7%. Of the
increase, $3,503,000 is attributable to personnel expenses primarily in the form
of restricted stock costs. Professional fees have increased $2,455,000 in the
current year primarily from legal costs associated with the ongoing informal
Securities and Exchange Commission investigation of the Company. As a percentage
of revenues, general and administrative expenses were 4.7% this year compared to
4.3% last year.
Interest expense, which excludes the amount incurred through financial service
operations, increased $3,568,000 or 12.4% during the current year primarily due
to the issuance of $150,000,000 of 7.875% debentures in
S-32
<PAGE> 213
February 1993 and increased borrowings under the Company's lines of credit and
commercial paper primarily used to fund the Company's acquisition program.
The $2,021,000 increase in other income results primarily from the sale of
excess real estate and additional equity income on corporate investments in
1994.
The provision for income taxes has increased to 40.5% from 39.3% last year
primarily due to the August 1993 increase in the federal corporate tax rate.
Year to Year Comparisons -- Change in Accounting Principles
Effective January 1, 1993, the Company changed its method of accounting for
prearranged funeral service contracts and cemetery sales. For a more detailed
discussion of these changes, see Note 2 to the consolidated financial statements
in Item 8 of the Form 10-K for the year ended December 31, 1993 (the "Form
10-K"). The cumulative effect of these changes resulted in an after tax charge
of $2,031,000 or $.03 per share on January 1, 1993. Generally these changes will
result in reduced funeral revenues and funeral operating income, at least in the
near future, due to the deferral of previously recognized prearranged funeral
service trust fund income until performance of the specific funeral.
Additionally, these changes will generally result in higher cemetery revenues
and cemetery operating income because all cemetery sales and costs are recorded
in current income. See Item 3, Legal Proceedings, in the Form 10-K for
information regarding an informal investigation by the Securities and Exchange
Commission and the Company's Form 8-K dated October 18, 1994.
For purposes of management's discussion and analysis of results of operations
and financial condition, all comparisons to 1992 and 1991 reflect the pro forma
effects of applying the new accounting principles as if the changes had occurred
on December 31, 1990. The following table presents the pro forma results for the
years ended 1992 and 1991:
<TABLE>
<CAPTION>
--------------------------------------
YEARS ENDED DECEMBER 31,
AS UNAUDITED
REPORTED PRO FORMA
Thousands 1993 1992 1991
---------- ---------- ----------
<S> <C> <C> <C>
Revenues:
Funeral $603,099 $532,914 $430,565
Cemetery 280,421 217,100 194,434
Financial services 15,658 10,741 14,823
---------- ---------- ----------
899,178 760,755 639,822
Costs and expenses:
Funeral (426,008) (379,223) (307,090)
Cemetery (200,682) (164,188) (149,822)
Financial services (9,168) (6,632) (10,666)
---------- ---------- ----------
(635,858) (550,043) (467,578)
---------- ---------- ----------
Gross profit 263,320 210,712 172,244
General and administrative expenses (43,706) (38,693) (35,448)
Interest expense (59,631) (53,902) (42,429)
Other income 13,509 9,876 8,241
---------- ---------- ----------
Income before income taxes 173,492 127,993 102,608
Income taxes (70,400) (48,500) (33,200)
---------- ---------- ----------
Income before cumulative effect of change in accounting
principles $103,092 $79,493 $69,408
========== ========== ==========
</TABLE>
S-33
<PAGE> 214
Year Ended December 31, 1993 Compared to Year Ended December 31, 1992
In 1993, total funeral revenues increased $70,185,000 or 13.2% over 1992.
Funeral revenues were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
---------- ---------- ---------- ----------
(THOUSANDS)
<S> <C> <C> <C> <C>
Existing clusters $548,771 497,092 $51,679 10.4%
New clusters** 28,376 2,259 26,117
---------- ---------- ----------
Total clusters 577,147 499,351 77,796 15.6%
Non-cluster and disposed operations 25,952 33,563 (7,611)
---------- ---------- ----------
Total funeral revenues $603,099 532,914 $70,185 13.2%
========== ========== ==========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
The $51,679,000 increase in revenues at existing clusters was the result of
10,193 or 6.9% more funeral services performed and a $111 or 3.3% higher average
sales price. Included in this increase were $29,281,000 in revenues from
locations acquired during the two year period. Overall, funeral services
performed are expected to grow slowly for the near future and it is expected
that the Company's revenue growth will primarily be generated from acquired
operations (added to existing clusters and the creation of new clusters) as well
as higher average sales prices.
During 1993, the Company sold $159,000,000 of prearranged funeral services
compared to $119,000,000 for 1992. These prearranged funeral services are
deferred and will be reflected in funeral revenues in the periods that the
funeral services are performed. An increased emphasis on sales of prearranged
funerals is expected to continue.
Total funeral costs increased $46,785,000 or 12.3% in 1993. Funeral costs were
as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
---------- ---------- ---------- ----------
(THOUSANDS)
<S> <C> <C> <C> <C>
Existing clusters $357,118 $324,893 $32,225 9.9%
New clusters** 21,571 1,755 19,816
---------- ---------- ----------
Total clusters 378,689 326,648 52,041 15.9%
Non-cluster and disposed operations 18,838 27,654 (8,816)
Administrative overhead 28,481 24,921 3,560
---------- ---------- ----------
Total funeral costs $426,008 $379,223 $46,785 12.3%
========== ========== ==========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
Existing cluster funeral costs, expressed as a percentage of revenues, were
65.1%, which was slightly lower than the 65.4% recorded in 1992. This gross
profit margin improvement was achieved despite the large number of acquisitions
which occurred during the two year period. Typically, acquisitions will
temporarily exhibit slightly lower gross profit margins than the Company's
existing locations. These acquisitions accounted for $19,548,000 of the existing
cluster cost increase. The improved gross profit margin reflects increased
revenues, reduced personnel costs (the largest funeral expense item) and
facility costs at other funeral homes included in existing clusters. As a
percentage of revenues, administrative overhead costs related to funeral
operations remained at 4.7% in both years.
S-34
<PAGE> 215
Total cemetery revenues increased $63,321,000 or 29.2% over 1992. Cemetery
revenues were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $254,343 $202,709 $51,634 25.5%
New clusters** 14,818 946 13,872
---------- ---------- ----------
Total clusters 269,161 203,655 65,506 32.2%
Non-cluster and disposed operations 11,260 13,445 (2,185)
---------- ---------- ----------
Total cemetery revenues $280,421 $217,100 $63,321 29.2%
========== ========== ==========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
Revenues for the existing clusters increased due to increased at-need and
pre-need sales volumes, higher average at-need and pre-need contract prices and
additional earnings from cemetery perpetual care and merchandise and service
trust funds. Included in the existing cluster increase was $40,059,000 in
increased revenues from cemeteries acquired during the two year period.
Total cemetery costs increased $36,494,000 or 22.2% over the prior year.
Cemetery costs were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1993 1992* (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $167,635 $141,178 $26,457 18.7%
New clusters** 8,414 892 7,522
---------- ---------- ----------
Total clusters 176,049 142,070 33,979 23.9%
Non-cluster and disposed operations 8,038 10,437 (2,399)
Administrative overhead 16,595 11,681 4,914
---------- ---------- ----------
Total cemetery costs $200,682 $164,188 $36,494 22.2%
========== ========== ==========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1991 for the
period that those businesses were owned by the Company.
The entire increase in existing cluster costs resulted from increased costs at
cemeteries acquired during the two year period. There was no increase in costs
at other cemeteries included in existing clusters despite the sales increase
discussed above. Cost containment in the areas of selling and maintenance
expenses contributed to the lack of increase. Cemetery costs, expressed as a
percentage of revenues, at existing clusters decreased to 65.9% this year from
69.6% in 1992. The Company believes that the gross margins realized in 1993 are
achievable in the future through continued aggressive sales as well as cost
containment programs. Administrative overhead costs have increased slightly,
when expressed as a percentage of revenues, to 5.9% currently from 5.4% in 1992.
Financial service revenues and costs have increased in 1993 as a result of
increased loans outstanding and improved interest rate spreads. The average
outstanding loan portfolio during 1993 was $215,726,000 with an average interest
rate spread of 3.3% compared to $143,773,000 and 2.6%, respectively, in 1992.
Financial services are provided through Provident which is a major source of
funding to independent funeral home and cemetery operators. Unlike a commercial
bank, Provident does not have access to low-cost deposit funds so its net
interest margin is lower because it borrows money at market rates. Additionally,
Provident does not incur as much administrative costs as does a commercial bank.
Through Provident's relationships with these borrowers, the Company derives the
benefit of developing a continuing relationship with these entities. The credit
risk for this type of leading is considered minimal to the Company.
S-35
<PAGE> 216
General and administrative expenses increased by $5,013,000 or 13.0%. The
increase is primarily attributable to compensation expense in connection with
performance-based vesting of restricted stock grants to Company management.
Vesting is based on a formula primarily tied to earnings per share growth.
Interest expense, which excludes the amount incurred through financial service
operations, increased $5,729,000 or 10.6% during 1993. In February 1993, the
Company issued $150,000,000 of 7.875% debentures due in 2013. The proceeds were
primarily used to repay existing credit agreement borrowings. Also in February
1993, the Company called the $100,000,000 6.5% convertible debentures originally
issued in 1986. Holders of the debentures converted $97,164,000 into Company
common stock at $17.33 per share (5,607,000 shares) with the remaining
$2,836,000 redeemed in cash. Additionally, interest expense was reduced by
decreased average interest rates on amounts borrowed under the Company's credit
agreements during 1993 compared to 1992.
Other income includes the recognition of gains from the sale of excess real
estate and existing businesses during both periods.
The provision for income taxes has increased to 40.6% from 37.9% during 1992
primarily due to the enactment of the Omnibus Budget Reconciliation Act of 1993
in August 1993 which increased corporate tax rates retroactively to January 1,
1993. As a result of the new law, the Company's 1993 tax expense increased
$2,431,000 from increased deferred income taxes and $1,700,000 from the higher
corporate tax rate on 1993 earnings ($.05 earnings per share).
Year Ended December 31, 1992 Compared to Year Ended December 31, 1991
In 1992, total funeral revenues increased $102,349,000 or 23.8% over 1991.
Funeral revenues were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, PERCENTAGE
Thousands 1992* 1991* INCREASE INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $456,617 $390,807 $65,810 16.8%
New clusters** 43,377 11,190 32,187
---------- ---------- ----------
Total clusters 499,994 401,997 97,997 24.4%
Non-cluster and disposed operations 32,920 28,568 4,352
---------- ---------- ----------
Total funeral revenues $532,914 $430,565 $102,349 23.8%
========== ========== ==========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
The $65,810,000 increase in revenues at existing clusters, which included an
increase of $59,598,000 from acquired operations, was the result of 13,857 or
11.4% more funeral services performed and a $157 or 4.9% higher average sales
price.
Total funeral costs increased $72,133,000 or 23.5% in 1992. Funeral costs were
as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, PERCENTAGE
Thousands 1992* 1991* INCREASE INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $292,331 $254,186 $38,145 15.0%
New clusters** 34,972 9,063 25,909
---------- ---------- ----------
Total clusters 327,303 263,249 64,054 24.3%
Non-cluster and disposed operations 26,999 26,032 967
Administrative overhead 24,921 17,809 7,112
---------- ---------- ----------
Total funeral costs $379,223 $307,090 $72,133 23.5%
========== ========== ==========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
S-36
<PAGE> 217
All of the increase in costs at existing clusters was the result of funeral
homes acquired during the two year period. For other funeral homes included in
existing clusters, personnel costs increased primarily as the result of higher
benefit costs. This was offset by decreased merchandise costs, reflecting more
effective purchasing arrangements with vendors and an additional year-end
discount from the revision of a merchandise purchasing contract with one vendor.
Discounts should continue through 1993 based on the provisions of the revised
contract as well as with agreements with other vendors. Facility costs also
declined when compared to 1991.
Total cemetery revenues increased $22,666,000 or 11.7% over 1991. Cemetery
revenues were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1992* 1991* (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $186,051 $171,273 $14,778 8.6%
New clusters** 13,823 5,308 8,515
---------- ---------- ----------
Total clusters 199,874 176,581 23,293 13.2%
Non-cluster and disposed operations 17,226 17,853 (627)
---------- ---------- ----------
Total cemetery revenues $217,100 $194,434 $22,666 11.7%
========== ========== ==========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
Revenues at existing clusters, which include an increase of $11,937,000 from
acquired operations, increased a total of $14,778,000 or 8.6% due to increased
at-need sales, higher average at-need and pre-need contract prices partially
offset by a slight decline in the number of pre-need contracts sold.
Total cemetery costs increased $14,366,000 or 9.6% over 1991. Cemetery costs
were as follows:
<TABLE>
<CAPTION>
----------------------------------------------------
YEARS ENDED
DECEMBER 31, INCREASE/ PERCENTAGE
Thousands 1992* 1991* (DECREASE) INCREASE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Existing clusters $127,626 $116,711 $10,915 9.4%
New clusters** 10,502 4,618 5,884
---------- ---------- ----------
Total clusters 138,128 121,329 16,799 13.8%
Non-cluster and disposed operations 14,379 13,315 1,064
Administrative overhead 11,681 15,178 (3,497)
---------- ---------- ----------
Total cemetery costs $164,188 $149,822 $14,366 9.6%
========== ========== ==========
</TABLE>
- ---------------
* Unaudited pro forma.
** Represents new geographic areas entered into after December 31, 1990 for the
period that those businesses were owned by the Company.
Costs at existing clusters, which include an increase of $9,667,000 from
acquired operations, increased a total of $10,915,000 or 9.4%. Merchandise and
repair and maintenance expenses increased at other cemeteries included in
existing clusters. Cemetery overhead costs declined in 1992 due to the closing
of the San Diego administrative office in late 1991. These costs were either
eliminated or transferred to general and administrative expense at the Houston
corporate offices.
Financial service revenues and costs decreased during 1992 as a result of a
decrease in the average outstanding loan portfolio and borrowed amounts for
Provident in 1992. Gross profit remained level for both years. For the year
1992, Provident's outstanding loan portfolio averaged $143,773,000 with an
average interest rate spread of 2.6% compared to $148,652,000 and 2.4%,
respectively, in 1991.
General and administrative expenses increased in 1992 by $3,245,000 or 9.2%.
Personnel costs, including the cost of restricted stock grants and other
employee benefit accruals, increased $2,141,000. The remainder of the
S-37
<PAGE> 218
increase resulted primarily from higher facility and administrative costs. A
portion of the additional costs resulted from the relocation of cemetery
administrative offices from San Diego to Houston.
Interest expense, which excludes the amount incurred through financial service
operations, increased $11,473,000 or 27.0% during 1992. In October 1991, the
Company issued $172,500,000 of 6.5% convertible debentures due in 2001. Also
contributing to the increase was the interest on debt assumed and not refinanced
from various 1991 acquisitions. Lower interest rates in 1992 helped to offset
increases in interest expense from increased average amounts borrowed under the
Company's credit agreements.
Other income increased during 1992 due primarily to the recognition of two gains
in 1992. One resulted from the collection of a note receivable that had
previously been written off, and the other from the sale of an equity
investment. Partially offsetting the increase was less income on corporate
investments. Both years include pretax gains associated with the disposition of
certain excess funeral and cemetery real property.
During the third quarter of 1991, certain Internal Revenue Service audits of the
Company were settled and resulted in the recognition of $4,800,000 or $.07 per
share of income tax benefits.
Financial Condition at June 30, 1994
The Company's acquisition of funeral homes and cemeteries and capital
expenditures, including major improvements to existing properties, continue to
require significant amounts of cash. Funds generated from earnings of existing
funeral and cemetery operations, together with unused lines of credit or other
available borrowings, are expected to be sufficient for the Company to continue
its current acquisition and operating policies. At August 5, 1994, the Company
had available approximately $298,000,000 of borrowing capacity under its various
credit lines.
In addition to the sources of cash from operations and credit lines, the Company
has 12,149,000 shares of common stock, $70,227,000 of guarantees of promissory
notes and $74,382,000 of convertible debentures registered with the Commission
to be used exclusively for future acquisitions.
Current maturities of long-term debt include $48,660,000 of medium-term notes
that mature in the first half of 1995. The Company's total debt to
capitalization ratio increased slightly to 55.8% from 55.1% at December 31,
1993.
Hedging Transactions (See Note 5 to Form 10-Q for the quarter ended June 30,
1994)
The Company has entered into hedging transactions to reduce its exposure to
adverse fluctuations in interest and foreign exchange rates. While the hedging
transactions are subject to risk of loss from change in interest rates and
exchange rates, these losses would generally be offset by gains on the exposures
being hedged. The Company has realized US $1,093,000 losses on contracts entered
into as hedge transactions since the beginning of 1993. These realized losses
were deferred and are being amortized into income over periods ranging from
eight months to five years.
At June 30, 1994, the Company had outstanding foreign currency and interest rate
swaps in the notional amounts of Australian dollar $142,715,000 and US
$75,000,000. As of June 30, 1994, net unrealized losses before taxes from these
hedging agreements were estimated to be US $3,800,000 (which is the estimated
cost to terminate these hedging agreements). In the opinion of management, such
losses were offset by the increased value of the exposures being hedged.
S-38
<PAGE> 219
CERTAIN TERMS OF THE TECONS
GENERAL
The following summary of certain terms and provisions of the TECONS supplements
the description of certain terms and provisions of the LLC Preferred Securities
of any series set forth in the accompanying Prospectus under the heading
"Description of the LLC Preferred Securities," to which description reference is
hereby made. Capitalized terms used and not defined in this Prospectus
Supplement shall have the meanings ascribed to them in the accompanying
Prospectus unless otherwise defined in this Prospectus Supplement. The TECONS
constitute a series of Preferred Shares of SCI Finance, which Preferred Shares
may be issued from time to time in one or more series with such dividend rights,
liquidation preferences, redemption provisions, voting rights, conversion or
exchange rights and other rights, preferences, privileges, limitations and
restrictions as are established by the Regulations of SCI Finance (the
"Regulations"), the Articles of Organization of SCI Finance (the "Articles") and
the amendment to the Regulations (the "Amendment") adopted, or to be adopted, by
the Manager prior to the closing of the sale of the TECONS offered hereby. The
Amendment will provide that so long as any TECONS are outstanding, SCI Finance
may not issue any interests of SCI Finance ranking, as to participation in the
profits or assets of SCI Finance, senior to the TECONS. The summary of certain
terms and provisions of the TECONS set forth below does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
Regulations, the Articles and the Amendment adopted by the Manager establishing
the rights, preferences, privileges, limitations and restrictions relating to
the TECONS. A copy of the Amendment will be included as an exhibit to a Current
Report on Form 8-K to be filed by SCI at or prior to the closing of the sale of
the TECONS offered hereby.
DIVIDENDS
The holders of the TECONS shall be entitled to receive, when and as declared by
SCI Finance by action of the Manager out of funds held by SCI Finance and
legally available therefor, cumulative cash dividends at the annual rate of
$ per TECONS, and no more. See "Description of the LLC Preferred
Securities -- Dividends."
LIQUIDATION PREFERENCE
The liquidation preference per TECONS is $50 plus accrued and unpaid dividends.
REDEMPTION
Subject to the second following paragraph, the TECONS may not be redeemed by SCI
Finance prior to , 1997. On and after , 1997 and prior to
, 1999, the TECONS will be redeemable at the option of SCI Finance, in
whole or in part, upon not fewer than 30 or more than 60 days' prior notice, at
the redemption price per TECONS equal to: $ , if such redemption is
effected on or after , 1997 and prior to , 1997; $
if such redemption is effected on or after , 1997 and prior to
, 1998; and $ if such redemption is effected on or after
, 1998 and prior to , 1999, in each case plus accrued and
unpaid dividends (whether or not declared) to the date fixed for redemption
(each such redemption price set forth in this sentence, the "Conditional
Redemption Price"). SCI Finance may exercise the option set forth in the
foregoing sentence only if (A) for 20 Trading Days within any period of 30
consecutive Trading Days (including the last Trading Day of such period) ending
on the Trading Day immediately prior to the date of the giving of the notice of
redemption the Closing Price of the SCI Common Stock exceeds 125% of the
Conversion Price (as defined below), (B) all dividends on the TECONS for all
dividend periods ending on or prior to the date of the giving of the notice of
redemption have been paid in full or declared and set aside for payment in full
and (C) SCI Finance shall have issued prior to 9:00 A.M. New York City time on
the second Trading Day after such 30 Trading Day period a press release
announcing the redemption and specifying the date on which such redemption will
be effective.
S-39
<PAGE> 220
On and after , 1999, the TECONS are redeemable, at the option of
SCI Finance, in whole or in part from time to time, out of proceeds received by
SCI Finance from the prepayment or repayment by SCI Limited or SCI of the Loans,
upon not fewer than 30 or more than 60 days' prior notice, at the respective
prices per TECONS set forth below, if redeemed during the 12-month period
beginning of the years indicated below, in each case plus accrued
and unpaid dividends (whether or not declared) to the date fixed for redemption
(the "Optional Redemption Price"):
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
1999..................... $
2000.....................
2001.....................
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
2002..................... $
2003.....................
2004 and thereafter...... 50.00
</TABLE>
; provided, however, that if the TECONS are listed on any national securities
exchange or quoted on the Nasdaq NM, then SCI Finance shall redeem the TECONS in
whole if a partial redemption thereof would result in a delisting of the TECONS
from such national securities exchange or suspension from the Nasdaq NM.
If a Tax Event shall occur and be continuing, the TECONS will be subject to
redemption, in whole but not in part, at the option of SCI Finance upon notice
given within 90 days following the occurrence of such Tax Event, at a redemption
price per TECONS equal to: $ if such redemption is effected after the date
of issuance of the TECONS and prior to , 1995; $ if such redemption
is effected on or after , 1995 and prior to , 1996; $ if
such redemption is effected on or after , 1996 and prior to ,
1997, plus in each case accrued and unpaid dividends (whether or not declared)
to the date fixed for redemption; and if such redemption is effected at any time
on or after , 1997, the applicable Conditional Redemption Price (whether
or not SCI Finance could otherwise then redeem the TECONS pursuant to the second
preceding paragraph above) or the applicable Optional Redemption Price, as the
case may be.
CONVERSION RIGHTS
The TECONS are convertible at the option of the holder, unless previously
redeemed, at any time at an initial conversion rate of shares of SCI Common
Stock for each TECONS (equivalent to a conversion price (the "Conversion Price")
of $ per share of SCI Common Stock), subject to adjustment in certain
circumstances. See "Description of the LLC Preferred Securities -- Conversion
Rights."
ADJUSTMENTS TO CONVERSION PRICE IN THE EVENT OF CERTAIN NON-STOCK FUNDAMENTAL
CHANGES OCCURRING PRIOR TO , 1997
If a Non-Stock Fundamental Change occurs after the date of issuance of the
TECONS and prior to , 1997, the Conversion Price immediately following such
Non-Stock Fundamental Change will be the lower of (A) the Conversion Price in
effect immediately prior to such Non-Stock Fundamental Change, but after giving
effect to any other adjustments effected pursuant to the provisions of the
Amendment and (B) the product of (1) the greater of the Applicable Price or the
then applicable Reference Market Price and (2) a fraction, the numerator of
which will be $50 and the denominator of which will be $ if such Non-Stock
Fundamental Change occurs after the issuance of the TECONS and prior to ,
1995; $ , if such Non-Stock Fundamental Change occurs on or after ,
1995 and prior to , 1996; and $ if such Non-Stock Fundamental Change
occurs on or after , 1996 and prior to , 1997.
REFERENCE MARKET PRICE
The Reference Market Price for the TECONS shall initially be $ (subject to
adjustment as provided in the Amendment).
S-40
<PAGE> 221
OPTIONAL PREPAYMENT OF THE LOANS
SCI Limited shall have the right to prepay the Loans, in whole or in part
(together with any accrued but unpaid interest on the portion being prepaid), at
any time (A) that SCI Finance shall have given a notice of redemption of the
TECONS in connection with a Tax Event as contemplated by the Amendment and (B)
otherwise, on or after , 1997; provided, however, that SCI Limited may
not prepay all or any portion of the Loans unless SCI Finance has the right
under the Amendment concurrently therewith to redeem the TECONS. The prepayment
price of the Loans will include a premium over the principal amount thereof
equal to the then applicable premium over the liquidation preference of the
TECONS to be redeemed.
SCI Limited shall have the right to prepay the Loans at any time by transfer to
SCI Finance of TECONS and the aggregate amount of the Loans then outstanding
shall be reduced in an amount equal to the Liquidation Preference per TECONS
(valued at 100% of the amount thereof) transferred to SCI Finance. Upon any such
prepayment, SCI Limited shall be deemed to represent and warrant to SCI Finance
that (i) the transfer of such shares has been duly authorized by all necessary
corporate action on the part of SCI Limited, (ii) SCI Limited has good and
marketable title to such shares, (iii) such shares are not subject to any lien,
charge or other encumbrance or defect in title and (iv) such transfer will not
conflict with or result in a breach or default under any contract or other
instrument binding upon SCI Limited or violate any law, rule or regulation, or
order or decree of any court of competent jurisdiction, binding upon SCI
Limited.
UNDERWRITING
Under the terms and subject to the conditions contained in an Underwriting
Agreement (the "Underwriting Agreement") dated the date hereof, the Underwriters
named below have severally agreed to purchase, and SCI Finance has agreed to
sell to them, severally, the respective number of TECONS set forth opposite
their names below:
<TABLE>
<CAPTION>
-----------
NUMBER OF
TECONS
-----------
<S> <C>
UNDERWRITERS:
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
-----------
Total 3,000,000
==========
</TABLE>
The Underwriting Agreement provides that the obligations of the several
Underwriters to pay for and accept delivery of the TECONS offered hereby are
subject to the approval of certain legal matters by their counsel and to certain
other conditions. The Underwriters are committed to take and pay for all of the
TECONS offered hereby (other than those covered by the over-allotment option
described below) if any are taken.
The Underwriters initially propose to offer the TECONS in part directly to the
public at the public offering price set forth on the cover page of this
Prospectus Supplement and in part to certain dealers at such price less a
concession not in excess of $ per TECONS. The Underwriters may allow, and
such dealers may reallow, a concession not in excess of $ per TECONS to
certain other dealers. After the initial public offering of the TECONS offered
hereby, the public offering price and such concessions may be changed.
In view of the fact that substantially all of the proceeds of the sale of the
TECONS will be loaned by SCI Finance to SCI Limited, a wholly-owned subsidiary
of SCI, the Underwriting Agreement provides that SCI will pay to the
Underwriters the underwriters' compensation set forth on the cover page of this
Prospectus Supplement and will pay all expenses of the offering made hereby.
Pursuant to the Underwriting Agreement, SCI Finance and SCI have granted to the
Underwriters an option, exercisable for 30 days from the date of this Prospectus
Supplement, to purchase up to an additional 450,000 TECONS at the public
offering price set forth on the cover page of this Prospectus Supplement. The
Underwriters may exercise such option to purchase solely for the purpose of
covering over-allotments, if any,
S-41
<PAGE> 222
made in connection with the sale of the TECONS offered hereby. To the extent
such option is exercised, each Underwriter will become obligated, subject to
certain conditions, to purchase approximately the same percentage of such
additional TECONS as the number set forth next to such Underwriter's name in the
preceding table bears to the total number of TECONS offered hereby.
In the Underwriting Agreement, SCI Finance and SCI have agreed jointly and
severally to indemnify the Underwriters against certain liabilities, including
liabilities under the federal securities laws, or to contribute to payments
which the Underwriters may be required to make in respect thereof.
J.P. Morgan Securities Inc. ("JPMS"), Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and affiliates of JPMS and Merrill Lynch are
acting as underwriters in connection with the Common Stock Offering, for which
they will receive customary underwriting compensation. In addition, JPMS and
Merrill Lynch are acting as underwriters in connection with the Senior Notes
Offering, for which they will receive customary underwriting compensation. As of
October 5, 1994, JPMS and certain of its affiliates beneficially owned (as
defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended)
approximately 12.09% of the outstanding SCI Common Stock, such figure
representing beneficial ownership in both a fiduciary capacity on behalf of
third parties and for their own accounts. As of such date, JPMS and such
affiliates owned the economic interest in less than 1.00% of the outstanding SCI
Common Stock. JPMS and its affiliates and Merrill Lynch from time to time
provide commercial banking and/or investment banking services to SCI for which
they receive customary fees and expense reimbursement.
Upon application of the net proceeds of the offering made hereby as described
under "Use of Proceeds," an affiliate of JPMS will receive in excess of 10% of
the net proceeds of this offering. Pursuant to paragraph 8 of Article III,
Section 44 of the Rules of Fair Practice of the National Association of
Securities Dealers, Inc. (the "NASD"), such receipt by an affiliate of JPMS of
such proceeds requires that the offering made hereby be made in compliance with
certain of the requirements of Schedule E ("Schedule E") to the Bylaws of the
NASD. In this regard, the offering made hereby is being made pursuant to such
paragraph 8. Pursuant thereto, the offering made hereby will comply with Section
3(c) of Schedule E.
SCI Finance, SCI and each of SCI's executive officers have agreed not to effect
any offer, sale or other disposition of any LLC Preferred Securities, any shares
of SCI Common Stock or any securities convertible into or exchangeable for any
shares of SCI Common Stock (except for the TECONS offered hereby, the SCI Common
Stock issuable upon conversion of the TECONS and upon conversion of SCI's
presently outstanding convertible securities, pursuant to SCI's existing
employee benefit plans as in effect on the date hereof, the offering and sale of
up to 8,855,000 shares of SCI Common Stock in the Common Stock Offering and,
subject to certain limitations, in connection with acquisitions) for a period of
90 days after the date of this Prospectus Supplement, without the prior consent
of JPMS.
Prior to the offering made hereby, there has been no public market for the
TECONS. Application will be made to list the TECONS on the NYSE under the symbol
"SRV prT."
S-42
<PAGE> 223
***************************************************************************
* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
PROSPECTUS SUBJECT TO COMPLETION
NOVEMBER 1, 1994
$1,000,000,000
SERVICE CORPORATION INTERNATIONAL
Debt Securities, Common Stock, Preferred Stock and
Common Stock Warrants
SCI FINANCE LLC
LLC Preferred Securities
Service Corporation International (the "Company" or "SCI") may from time to time
offer (i) Debt Securities consisting of debentures, notes and/or other unsecured
evidences of indebtedness, (ii) Common Stock, par value $1.00 per share ("Common
Stock" or "SCI Common Stock"), along with Series C Junior Participating
Preferred Stock Purchase Rights, (iii) Preferred Stock, par value $1.00 per
share ("Preferred Stock"), and (iv) Common Stock Warrants. SCI Finance LLC ("SCI
Finance") may from time to time offer LLC Preferred Securities in one or more
series with the payment of dividends and the payments on liquidation or
redemption of the LLC Preferred Securities guaranteed on a subordinated basis by
SCI to the extent described herein or in the accompanying Prospectus Supplement.
See "Description of the LLC Preferred Securities -- Description of the
Guarantee" and "-- Description of the Loans" for a description of various
contractual backup undertakings of SCI with respect to the LLC Preferred
Securities. The Debt Securities, the Common Stock, along with Series C Junior
Participating Preferred Stock Purchase Rights, the Preferred Stock, the Common
Stock Warrants and the LLC Preferred Securities are collectively referred to as
the "Securities," and will have an aggregate initial offering price of up to
$1,000,000,000 (or the equivalent thereof if Debt Securities are denominated in
a currency other than U.S. dollars or in currency units). The Securities may be
offered as separate series, in amounts, at prices and on terms to be determined
at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the Securities
in respect of which this Prospectus is being delivered the terms of such
Securities, including, where applicable, (i) in the case of Debt Securities, the
specific title (including whether senior, senior subordinated or subordinated
and whether or not convertible), aggregate principal amount, denominations
(which may be in U.S. dollars, in any other currency or in composite
currencies), maturity (which may be fixed or extendible), interest rate, if any
(which may be fixed or variable), and time of payment of any interest, any terms
for redemption at the option of the Company or the holder, any terms for sinking
fund payments, any class or classes of stock into which the Debt Securities are
convertible and other conversion terms, if any, any covenants or events of
default that are in addition to or different from those described herein, any
listing on a securities exchange, the initial public offering price and any
other terms in connection with the offering and sale of such Debt Securities,
(ii) in the case of Common Stock, the initial public offering price, (iii) in
the case of Preferred Stock, the specific title, any dividend, liquidation and
other rights, any class or classes of stock into which the Preferred Stock is
convertible and other conversion terms, if any, any redemption provisions, any
sinking fund provisions, any covenants, any listing on a securities exchange,
the initial public offering price and any other terms in connection with the
offering and sale of such Preferred Stock, (iv) in the case of Common Stock
Warrants, the duration, exercise price, initial public offering price and any
other terms in connection with the offering and sale of such Common Stock
Warrants and (v) in the case of the LLC Preferred Securities, any dividend,
conversion and other rights, any listing on a securities exchange, the initial
public offering price and any other terms in connection with the offering and
sale of such LLC Preferred Securities.
The Company and SCI Finance may sell Securities to or through underwriters, and
also may sell Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased by
underwriters and the compensation, if any, of such underwriters or agents.
SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
, 1994
<PAGE> 224
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS, IF ANY, MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE
SECURITIES AND, IF THE SECURITIES ARE CONVERTIBLE, THE OUTSTANDING CLASS OR
CLASSES OF STOCK OF THE COMPANY INTO WHICH THEY ARE CONVERTIBLE, AT LEVELS ABOVE
THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED ON ANY SECURITIES EXCHANGE ON WHICH SUCH SECURITIES MAY BE LISTED, IN
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus or
the accompanying Prospectus Supplement and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Company or any underwriter, dealer or agent. Neither this Prospectus nor the
accompanying Prospectus Supplement constitutes an offer to sell or a
solicitation of an offer to buy Securities in any jurisdiction in which such
offer or solicitation is not authorized or in which the person making such offer
or solicitation is not qualified to do so or to any person to whom it is
unlawful to make such offer or solicitation.
In this Prospectus, references to "dollar" and "$" are to United States dollars,
and the terms "United States" and "U.S." mean the United States of America, its
states, its territories, its possessions and all areas subject to its
jurisdiction.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................ 3
Incorporation of Certain Documents by
Reference.......................... 4
The Company.......................... 5
SCI Finance.......................... 5
Certain Investment Considerations.... 6
Use of Proceeds...................... 6
Description of Debt Securities....... 7
Description of Preferred Stock....... 22
Description of Common Stock
Warrants........................... 25
Description of the LLC Preferred
Securities......................... 28
Certain Federal Income Tax
Considerations Regarding the LLC
Preferred Securities............... 45
Plan of Distribution................. 49
Legal Matters........................ 50
Experts.............................. 50
</TABLE>
2
<PAGE> 225
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at 450 Fifth Street N.W., Washington,
D.C. 20549; 500 West Madison Street, Chicago, Illinois 60661; and 7 World Trade
Center, New York, New York 10048. Copies of such material can also be obtained
from the public reference section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, such material can be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
Additional information regarding the Company, SCI Finance and the Securities is
contained in the Registration Statement of which this Prospectus is a part and
the exhibits relating thereto (the "Registration Statement") filed with the
Commission under the Securities Act of 1933, as amended (the "Act"). For further
information pertaining to the Company, SCI Finance and the Securities reference
is made to the Registration Statement, which may be inspected without charge at
the office of the Commission at 450 Fifth Street N.W., Washington, D.C. 20549,
and copies thereof may be obtained from the Commission at prescribed rates. This
Prospectus and the accompanying Prospectus Supplement do not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission.
Statements made in this Prospectus and the accompanying Prospectus Supplement as
to the contents of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made to
the exhibit for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such reference.
No separate financial statements of SCI Finance have been included or
incorporated by reference herein. SCI Finance and SCI do not consider that such
financial statements would be material to holders of the LLC Preferred
Securities, because SCI Finance is a newly-organized special purpose entity, has
no operating history and no independent operations and is not engaged in any
activity other than the issuance of its preferred interests (the "LLC Preferred
Shares"), such as the LLC Preferred Securities, and its common interests (the
"LLC Common Shares"), and the lending of 99% of the proceeds thereof to SCI
International Limited, a wholly-owned subsidiary of SCI ("SCI Limited"), and
because SCI will guarantee SCI Finance's obligations under the terms of the LLC
Preferred Securities to the extent set forth herein. See "SCI Finance." SCI
Finance is a limited liability company organized under the laws of the State of
Texas and will be managed by SCI, as manager (sometimes referred to herein as
the "Manager"). SCI owns all of the LLC Common Shares, which are
nontransferable.
3
<PAGE> 226
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by SCI with the Commission are
incorporated herein by reference:
1. SCI's Annual Report on Form 10-K for the fiscal year ended December 31, 1993,
as amended on Form 10-K/A, dated April 5, 1994;
2. SCI's Quarterly Reports on Form 10-Q for the quarterly periods ended March
31, 1994 and June 30, 1994;
3. The Company's Current Report on Form 8-K dated October 18, 1994;
4. Description of the Company's capital stock set forth under the caption
"Item 1. Description of Securities to be Registered -- Capital Stock" in the
Form 8, Amendment No. 3, dated September 15, 1982, to the Company's Registration
Statement on Form 8-A; and
5. Description of the Company's preferred share purchase rights contained in the
Company's Registration Statement on Form 8-A dated July 26, 1988, as amended by
Amendment No. 1 thereto filed under cover of Form 8 and dated May 11, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus and to be part hereof from the date
of filing such documents. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed to constitute a part hereof except as so modified or
superseded.
The Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the request of any such person, a copy of any or
all of the documents which are incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests should be directed to Service
Corporation International, 1929 Allen Parkway, Houston, Texas 77019, Attention:
James M. Shelger, Senior Vice President, General Counsel and Secretary (Tel.
(713) 522-5141).
4
<PAGE> 227
THE COMPANY
The Company is the largest provider of funeral and cemetery services and
products in the world. Giving effect to the recent acquisitions of Great
Southern Group plc ("GSG") and Plantsbrook Group plc ("PG"), as of September 30,
1994, the Company owned and operated 1,431 funeral homes, 213 cemeteries
(including 92 funeral home and cemetery combinations) and 99 crematoria located
in 40 U.S. states, the District of Columbia, Australia, Canada and the United
Kingdom.
The Company was incorporated in Texas on July 5, 1962. The Company's principal
executive offices are located at 1929 Allen Parkway, Houston, Texas 77019,
telephone number (713) 522-5141. As used herein, unless the context indicates
otherwise, the terms "Company" and "SCI" refer to the Company and its
subsidiaries.
SCI FINANCE
SCI Finance is a limited liability company organized under the laws of the State
of Texas. The address of SCI Finance's principal executive offices is 1929 Allen
Parkway, Houston, Texas 77019. SCI owns all of the LLC Common Shares, which are
nontransferable. SCI Finance exists for the sole purpose of issuing LLC Common
Shares and LLC Preferred Shares and lending 99% of the proceeds thereof to SCI
Limited. The remaining 1% of the proceeds from the issuance of LLC Common Shares
and LLC Preferred Shares will be invested by SCI Finance in Eligible Investments
(as defined in SCI Finance's Articles of Organization (the "LLC Articles")). See
"Use of Proceeds."
5
<PAGE> 228
CERTAIN INVESTMENT CONSIDERATIONS
In evaluating an investment in the Securities, prospective purchasers should
carefully consider the following factor, together with (i) other information
included in the accompanying Prospectus Supplement (which may include additional
factors and may contain information modifying or superseding the factor set
forth below), (ii) information included elsewhere in this Prospectus, and (iii)
information incorporated herein by reference (which may modify or supersede the
factor set forth below).
SECURITIES AND EXCHANGE COMMISSION INVESTIGATION
The staff of the Division of Enforcement of the Commission has advised SCI that
it is considering recommending to the Commission that it institute an
administrative proceeding pursuant to Section 21C of the Exchange Act seeking
cease and desist orders against SCI, R. L. Waltrip, Chairman of the Board and
Chief Executive Officer, L. William Heiligbrodt, President and Chief Operating
Officer, and Samuel W. Rizzo, Executive Vice President and Chief Financial
Officer/Treasurer, for violations of certain reporting and disclosure
requirements of the Exchange Act and the regulations promulgated thereunder. The
recommendation under consideration by the staff arises out of the informal
private investigation previously disclosed by SCI relating to, among other
things, the change in SCI's accountants and SCI's Form 8-K dated March 31, 1993,
as amended in April 1993, reporting such change. See Items 3 and 9 of SCI's
Annual Report on Form 10-K for the fiscal year ended December 31, 1993. The
staff has offered SCI and the named individuals the opportunity to make a
presentation with respect to the recommendation under consideration.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement accompanying
this Prospectus, the net proceeds to the Company from the sale or sales of the
Securities other than LLC Preferred Securities will be used for general
corporate purposes. Except as set forth in the Prospectus Supplement
accompanying this Prospectus, 99% of the proceeds from any offering of the LLC
Preferred Securities will be lent by SCI Finance to SCI Limited (the "Loans"),
which will use such proceeds in connection with SCI's foreign acquisition
program, and the remaining 1% will be invested by SCI Finance in Eligible
Investments.
6
<PAGE> 229
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior, senior subordinated or
subordinated debt of the Company and will be issued, in the case of Debt
Securities that will be senior debt ("Senior Debt Securities"), under a Senior
Indenture (the "Senior Debt Indenture") dated as of February 1, 1993, between
the Company and The Bank of New York, as trustee; in the case of Debt Securities
that will be senior subordinated debt ("Senior Subordinated Debt Securities"),
under a Senior Subordinated Indenture (the "Senior Subordinated Debt Indenture")
to be entered into between the Company and Texas Commerce Bank National
Association ("Texas Commerce Bank"), as trustee; and, in the case of Debt
Securities that will be subordinated debt ("Subordinated Debt Securities" and,
together with the Senior Subordinated Debt Securities, the "Subordinated
Securities") under a Subordinated Indenture (the "Subordinated Debt Indenture"
and, together with the Senior Subordinated Debt Indenture, the "Subordinated
Indentures") dated as of September 1, 1991 between the Company and Texas
Commerce Bank, as trustee. The Senior Debt Indenture, the Senior Subordinated
Debt Indenture and the Subordinated Debt Indenture are sometimes hereinafter
referred to individually as an "Indenture" and collectively as the "Indentures."
Each of The Bank of New York and Texas Commerce Bank (and any successors thereto
as trustees under the respective Indentures) is hereinafter referred to as the
"Trustee" with respect to the Indenture under which it acts as Trustee. The
Indentures are filed as exhibits to the Registration Statement. The following
summaries of certain provisions of the Indentures and the Debt Securities do not
purport to be complete, and such summaries are subject to the detailed
provisions of the applicable Indenture to which reference is hereby made for a
full description of such provisions, including the definition of certain
capitalized terms used herein but not otherwise defined herein. Whenever defined
terms of the applicable Indenture are referred to, such defined terms are
incorporated herein by reference as part of the statement made, and the
statement is qualified in its entirety by such reference. The Indentures are
substantially identical, except for certain covenants of the Company, events of
default and provisions relating to subordination and conversion.
The Debt Securities may be issued from time to time in one or more series. The
following description of the Debt Securities sets forth certain general terms
and provisions of the Debt Securities of all series. The particular terms of
each series of Debt Securities offered by any Prospectus Supplement will be
described therein.
PROVISIONS APPLICABLE TO SENIOR, SENIOR SUBORDINATED AND SUBORDINATED DEBT
SECURITIES
General. The Debt Securities will be unsecured senior, senior subordinated or
subordinated obligations of the Company and may be issued from time to time in
one or more series. The Indentures will not limit the amount of Debt Securities,
Senior Indebtedness, debentures, notes or other types of indebtedness that may
be issued by the Company or any of its Subsidiaries nor will they restrict
transactions between the Company and its Affiliates, the payment of dividends or
the making of investments by the Company or the transfer of assets by the
Company to its Subsidiaries. The Company currently conducts substantially all
its operations through Subsidiaries. Consequently, the rights of the Company to
receive assets of any Subsidiary (and thus the ability of holders of Debt
Securities to benefit indirectly from such assets) are subject to the prior
claims of creditors of that Subsidiary. Other than as may be set forth in any
Prospectus Supplement, the Indentures and the Debt Securities will not contain
any covenants or other provisions that are intended to afford holders of the
Debt Securities special protection in the event of a highly leveraged
transaction by the Company. As of June 30, 1994, the Company had outstanding
approximately $988 million of secured debt or Senior Indebtedness (including
approximately $34 million principal amount of guarantees) and approximately $198
million of unsecured subordinated debt.
Reference is made to the Prospectus Supplement relating to any Debt Securities
for the following terms of and information relating to such Debt Securities (to
the extent such terms are applicable thereto): (i) the title of such Debt
Securities; (ii) classification as Senior Debt Securities, Senior Subordinated
Debt Securities or Subordinated Debt Securities, aggregate principal amount,
purchase price and denomination; (iii) whether such Debt Securities that
constitute Senior Subordinated Debt Securities or Subordinated Debt Securities
are convertible into Common Stock and, if so, the terms and conditions upon
which such conversion will be effected including the initial conversion price or
conversion rate and any adjustments thereto in addition to or different from
those described herein, the conversion period and other conversion provisions in
addition to or in lieu of
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those described herein; (iv) the date or dates on which such Debt Securities
will mature; (v) the method by which amounts payable in respect of principal of
or premium, if any, or interest, if any, on or upon the redemption of such Debt
Securities may be calculated; (vi) the interest rate or rates (or the method by
which such will be determined), and the dates from which such interest, if any,
will accrue; (vii) the date or dates on which any such interest will be payable;
(viii) the place or places where and the manner in which the principal of and
premium, if any, and interest, if any, on such Debt Securities will be payable
and the place or places where such Debt Securities may be presented for transfer
and, if applicable, conversion; (ix) the obligations, if any, of the Company to
redeem, repay or purchase such Debt Securities pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof or the right, if any,
of the Company to redeem, repay or purchase such Debt Securities at its option
and the period or periods within which, the price or prices at which and the
terms and conditions upon which such Debt Securities will be redeemed, repaid or
purchased pursuant to any such obligation or right (including the form or method
of payment thereof if other than cash); (x) any terms applicable to such Debt
Securities issued at an original issue discount below their stated principal
amount, including the issue price thereof and the rate or rates at which such
original issue discount shall accrue; (xi) any index used to determine the
amount of payments of principal of and any premium and interest on such Debt
Securities; (xii) any special United States federal income tax consequences; and
(xiii) any other specified terms of such Debt Securities, including any
additional or different events of default or remedies or any additional
covenants provided with respect to such Debt Securities, and any terms which may
be required by or advisable under applicable laws or regulations.
Unless otherwise specified in any Prospectus Supplement, the Debt Securities
will be issued only in fully registered form and in denominations of $1,000 and
any integral multiple thereof. No service charge will be made for any transfer
or exchange of any Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par that are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable Prospectus Supplement.
The Indentures and the Debt Securities will be governed by Texas law.
Global Securities. The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities ("Global Securities") that
will be deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series. Global
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to the
nominee of the Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global Security
or its nominee will credit, on its book-entry registration and transfer system,
the respective principal amounts of the individual Debt Securities represented
by such Global Security to the accounts of persons that have accounts with such
Depositary. Such accounts shall be designated by the dealers, underwriters or
agents with respect to such Debt Securities or by the Company if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in a Global Security will be limited to persons that have accounts
with the applicable Depositary ("participants") or persons that may hold
interests through participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the applicable Depositary or its nominee
(with respect to interests of participants) and the
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records of participants (with respect to interests of persons other than
participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary for a Global Security or its nominee is the registered
owner of such Global Security, such Depositary or its nominee, as the case may
be, will be considered the sole owner or holder of the Debt Securities of the
series represented by such Global Security for all purposes under the Indenture
governing such Debt Securities. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have any of the
individual Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture governing such Debt
Securities.
Payments of principal of and premium, if any, and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominees will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. Neither the Company, the Trustee for such
Debt Securities, any paying agent nor the registrar for such Debt Securities
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt Securities or its
nominee, upon receipt of any payment of principal, premium or interest in
respect of a Global Security representing any such Debt Securities, immediately
will credit participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the principal amount of such Global
Security for such Debt Securities as shown on the records of such Depositary or
its nominee. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name." Such payments will be the responsibility of such participants.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series in exchange for the Global Security representing such
series of Debt Securities. In addition, the Company may at any time and in its
sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any Debt
Securities of a series represented by one or more Global Securities and, in such
event, will issue individual Debt Securities of such series in exchange for the
Global Security or Securities representing such series of Debt Securities.
Further, if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company and the
Depositary for such Global Security, receive individual Debt Securities of such
series in exchange for such beneficial interests, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities. In any
such instance, an owner of a beneficial interest in a Global Security will be
entitled to a physical delivery of individual Debt Securities of the series
represented by such Global Security equal in principal amount to such beneficial
interest and to have such Debt Securities registered in its name. Individual
Debt Securities of such series so issued will be issued in denominations, unless
otherwise specified by the Company, of $1,000 and integral multiples thereof.
Consolidation, Merger, Sale. Each Indenture provides that the Company may
consolidate or merge with or into any other corporation, and may sell, lease,
exchange or otherwise dispose of all or substantially all of its property and
assets to any other corporation authorized to acquire and operate the same,
provided that in any such case (i) immediately after such transaction the
Company or such other corporation formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, will not be in default in the performance or observance of any
of the terms, covenants and conditions in the Indenture to be kept or performed
by the Company, (ii) the corporation (if other than the Company) formed by or
surviving any such consolidation or merger, or to which such sale, lease
exchange or other disposition shall have been made, shall be a corporation
organized under the laws of the United States of America, any state
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thereof or the District of Columbia, and (iii) the corporation (if other than
the Company) formed by such consolidation, or into which the Company shall have
been merged, or the corporation which shall have acquired or leased such
property and assets, shall assume, by a supplemental indenture, the Company's
obligations under such Indenture. In case of any such consolidation, merger,
sale, lease, exchange or other disposition and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named in
such Indenture as the Company and subject to the conditions set forth in the
Indenture, and the Company shall be relieved of any further obligation under
such Indenture and any Debt Securities issued thereunder.
Discharge and Defeasance. The Company may discharge or defease its obligations
with respect to each series of Debt Securities as set forth below.
The Company may discharge all of its obligations (except those set forth below)
to holders of any series of Debt Securities issued under any Indenture, which
Debt Securities have not already been delivered to the Trustee for cancellation
and which either have become due and payable or are by their terms due and
payable within one year (or are to be called for redemption within one year) by
depositing with the Trustee cash or U.S. Government Obligations, or a
combination thereof, as trust funds in an amount certified to be sufficient to
pay when due the principal of and premium, if any, and interest, if any, on all
outstanding Debt Securities of such series and to make any mandatory sinking
fund payments thereon when due.
Unless otherwise provided in the applicable Prospectus Supplement, the Company
may also discharge at any time all of its obligations (except those set forth
below) to holders of any series of Debt Securities issued under any Indenture
(other than convertible Debt Securities) ("defeasance") if, among other things:
(i) the Company irrevocably deposits with the Trustee cash or U.S. Government
Obligations, or a combination thereof, as trust funds in an amount certified to
be sufficient to pay the principal of and premium, if any, and interest, if any,
on all outstanding Debt Securities of such series when due and to make any
mandatory sinking fund payments thereon when due, and such funds have been so
deposited for 91 days; (ii) such deposit will not result in a breach or
violation of, or cause a default under, any agreement or instrument to which the
Company is a party or by which it is bound; and (iii) the Company delivers to
the Trustee an opinion of counsel to the effect that the holders of such series
of Debt Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance, and that such
defeasance will not otherwise alter the United States federal income tax
treatment of principal and interest payments on such series of Debt Securities.
Such opinion of counsel must be based on a ruling of the Internal Revenue
Service or a change in United States federal income tax law occurring after the
date of the Indenture relating to the Debt Securities of such series, since such
a result would not occur under current tax law.
In the event of such discharge and defeasance of a series of Debt Securities,
the holders thereof would be entitled to look only to such trust funds for
payment of the principal of and any premium and interest on such Debt
Securities.
Notwithstanding the foregoing, no discharge or defeasance described above shall
affect the following obligations to or rights of the holders of any series of
Debt Securities: (i) rights of registration of transfer and exchange of Debt
Securities of such series; (ii) rights of substitution of mutilated, defaced,
destroyed, lost or stolen Debt Securities of such series; (iii) rights of
holders of Debt Securities of such series to receive payments of principal
thereof and interest, if any, thereon when due and to receive mandatory sinking
fund payments, if any, thereon when due from the trust funds held by the
Trustee; (iv) the rights, obligations, duties and immunities of the Trustee; (v)
the rights of holders of Debt Securities of such series as beneficiaries with
respect to property deposited with the Trustee payable to all or any of them;
(vi) the obligations of the Company to maintain an office or agency in respect
of Debt Securities of such series; and (vii) if applicable, the obligations of
the Company with respect to the conversion of Debt Securities of such series
into Common Stock.
Modification of the Indenture. Each Indenture provides that the Company and the
Trustee may enter into supplemental indentures without the consent of the
holders of the Debt Securities to (i) evidence the assumption by a successor
corporation of the obligations of the Company under such Indenture, (ii) add
covenants or new events of default for the protection of the holders of such
Debt Securities, (iii) cure any ambiguity or correct any inconsistency in the
Indenture, (iv) establish the form and terms of any series of Debt Securities
and to
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provide for adjustment of conversion rights, (v) evidence the acceptance of
appointment by a successor trustee, (vi) amend the Indenture in any other manner
which the Company may deem necessary or desirable and which will not adversely
affect the interests of the holders of Debt Securities issued thereunder or
(vii) in the case of Senior Debt Securities, secure such Debt Securities.
Each Indenture also contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities then Outstanding of each series affected
by such supplemental Indenture, to add any provisions to, or change in any
manner or eliminate any of the provisions of, such Indenture or modify in any
manner the rights of the holders of the Debt Securities of such series; provided
that the Company and the Trustee may not, without the consent of the holder of
each outstanding Debt Security affected thereby, (i) extend the stated maturity
of the principal of any Debt Security, reduce the principal amount thereof,
reduce the rate or extend the time of payment of any interest thereon, reduce or
alter the method of computation of any amount payable on redemption, repayment
or purchase thereof, reduce the portion of the principal amount of any Original
Issue Discount Security payable upon acceleration or provable in bankruptcy,
change the coin or currency in which principal and interest, if any, are
payable, impair or affect the right to institute suit for the enforcement of any
payment, repayment or purchase thereof or, if applicable, adversely affect the
right to convert Debt Securities, any right of repayment at the option of the
holder or (solely with respect to the Senior Subordinated Debt Indenture)
change, amend or modify the subordination provisions of such Indenture or any of
the definitions used in the subordination provisions of such Indenture or
consent to the departure from any of the terms of the subordination provisions
of such Indenture in each case in any manner that would adversely affect the
holders of any of the Senior Subordinated Debt Securities issued thereunder or
(ii) reduce the percentage in aggregate principal amount of Debt Securities of
any series issued under such Indenture, the consent of the holders of which is
required for any such modification.
The Senior Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Senior Subordinated Debt Securities, and the
Subordinated Debt Indenture may not be amended to alter the subordination of any
outstanding Subordinated Debt Securities, in each case without the consent of
each holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
Each of the Indentures provides that the term "Original Issue Discount Security"
means any Debt Security that provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to the terms of the Indenture.
In each of the Indentures, the definition of the term "Outstanding," with
reference to Debt Securities, provides that in determining whether the holders
of the requisite aggregate principal amount of Outstanding Debt Securities of
any or all series have given any request, demand, authorization, direction,
notice, consent or waiver under the applicable Indenture, the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
for such purposes shall be the portion of the principal amount thereof that
would be due and payable as of the date of such determination (as certified by
the Company to the Trustee) upon a declaration of acceleration of the maturity
thereof pursuant to the terms of the Indenture.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
General. Senior Debt Securities will be issued under the Senior Debt Indenture,
and each series will rank pari passu as to the right of payment of principal,
premium, if any, and interest, if any, with each other series and with all other
Senior Indebtedness of the Company.
Events of Default. Unless otherwise specified in the Prospectus Supplement, an
Event of Default is defined under the Senior Debt Indenture with respect to the
Senior Debt Securities of any series issued thereunder as being any one or more
of the following events:
(i) default in the payment of any installment of interest upon any of the Senior
Debt Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(ii) default in the payment of the principal of any of the Senior Debt
Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
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(iii) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Senior Debt Securities of such series, as
and when such obligation shall become due and payable; or
(iv) failure on the part of the Company duly to observe or perform any other of
the covenants or agreements on the part of the Company in the Senior Debt
Securities of such series or in the Senior Debt Indenture continued for a period
of 60 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Company by the Trustee by
registered or certified mail, or to the Company and the Trustee by the holders
of at least 25 percent in aggregate principal amount of the Senior Debt
Securities of such series then Outstanding; or
(v) without the consent of the Company a court having jurisdiction shall enter
an order for relief with respect to the Company under the Bankruptcy Code or
without the consent of the Company a court having jurisdiction shall enter a
judgment, order or decree adjudging the Company a bankrupt or insolvent, or
enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Bankruptcy Code or
applicable state insolvency law and the continuance of any such judgment, order
or decree is unstayed and in effect for a period of 60 consecutive days; or
(vi) the Company shall institute proceedings for entry of an order for relief
with respect to the Company under the Bankruptcy Code or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to,
reorganization, arrangement, composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to the filing of such petition or to
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of substantially all of its
property, or the Company shall make a general assignment for the benefit of
creditors as recognized under the Bankruptcy Code; or
(vii) default under any bond, debenture, note or other evidence of Indebtedness
for money borrowed by the Company or any Subsidiary or under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
Subsidiary (other than Non-Recourse Indebtedness), whether such Indebtedness
exists on the date of the Senior Debt Indenture or shall thereafter be created,
which default shall have resulted in such Indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, or any default in payment of such Indebtedness (after
the expiration of any applicable grace periods and the presentation of any debt
instruments, if required), if the aggregate amount of all such Indebtedness
which has been so accelerated and with respect to which there has been such a
default in payment shall exceed $5,000,000, without each such default and
acceleration having been rescinded or annulled within a period of 30 days after
there shall have been given to the Company by the Trustee by registered mail, or
to the Company and the Trustee by the holders of at least 25 percent in
aggregate principal amount of the Senior Debt Securities of such series then
Outstanding, a written notice specifying each such default and requiring the
Company to cause each such default and acceleration to be rescinded or annulled
and stating that such notice is a "Notice of Default" under the Senior Debt
Indenture; or
(viii) any other Event of Default provided with respect to the Senior Debt
Securities of such series.
If an Event of Default with respect to Senior Debt Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Senior Debt Securities of such series shall
have already become due and payable, either the Trustee or the holders of not
less than 25 percent in aggregate principal amount of the Senior Debt Securities
of such series then Outstanding, by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the unpaid principal amount
(or, if the Senior Debt Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all the Senior Debt Securities of such series and the
interest, if any, accrued thereon to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything in the Senior Debt Indenture or in the Senior Debt Securities
of such series contained to the contrary notwithstanding. This provision,
however, is subject to the condition that, if at any time after the unpaid
principal amount (or such specified amount) of the Senior Debt Securities of
such series shall have been so declared due and payable and before any judgment
or
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decree for the payment of the moneys due shall have been obtained or entered,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest, if any, upon all of the Senior Debt
Securities of such series and the principal of any and all Senior Debt
Securities of such series which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest, if any, to the
extent that payment of such interest is enforceable under applicable law and on
such principal at the rate borne by the Senior Debt Securities of such series to
the date of such payment or deposit) and the reasonable compensation,
disbursements, expenses and advances of the Trustee, and any and all defaults
under the Senior Debt Indenture, other than the nonpayment of such portion of
the principal amount of and accrued interest, if any, on Senior Debt Securities
of such series which shall have become due by acceleration, shall have been
cured or shall have been waived in accordance with the Senior Debt Indenture or
provision deemed by the Trustee to be adequate shall have been made
therefor -- then and in every such case the holders of a majority in aggregate
principal amount of the Senior Debt Securities of such series then Outstanding,
by written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default with respect to the Company
specified in clause (v) or (vi) above occurs, the unpaid principal amount (or,
if the Senior Debt Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Senior Debt
Securities of each series then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act by the Trustee
or any Securityholder. If the Trustee shall have proceeded to enforce any right
under the Senior Debt Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company, the Trustee and the Securityholders shall be
restored respectively to their several positions and rights under the Senior
Debt Indenture, and all rights, remedies and powers of the Company, the Trustee
and the Securityholders shall continue as though no such proceeding had been
taken. Except with respect to an Event of Default pursuant to clause (i), (ii)
or (iii) above, the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to the Trustee by
the Company, a Paying Agent or any Securityholder.
The Senior Debt Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Senior
Debt Indenture at the request or direction of any of the holders of Senior Debt
Securities issued under the Senior Debt Indenture, unless such holders shall
have offered to the Trustee reasonable security or indemnity.
No holder of any Senior Debt Securities of any series then Outstanding shall
have any right by virtue of or by availing of any provision of the Senior Debt
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to the Senior Debt Indenture or the Senior Debt
Securities or for the appointment of a receiver or trustee or similar official,
or for any other remedy under the Senior Debt Indenture or under the Senior Debt
Securities, unless such holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, and unless the holders
of not less than 25 percent in aggregate principal amount of the Senior Debt
Securities of such series then Outstanding shall have made written request to
the Trustee to institute such action, suit or proceeding in its own name as
Trustee and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. Notwithstanding any other provisions in the
Senior Debt Indenture, however, the right of any holder of any Senior Debt
Security to receive payment of the principal of and interest, if any, on such
Senior Debt Security, on or after the respective due dates expressed in such
Senior Debt Security, or to institute suit for the enforcement of any such
payment on or after such respective dates shall not be impaired or affected
without the consent of such holder.
The holders of at least a majority in aggregate principal amount of the Senior
Debt Securities of any series then Outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Senior Debt Securities of such series; provided, however, that
(subject to certain exceptions) the Trustee shall have the
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right to decline to follow any such direction if the Trustee shall determine
upon advice of counsel that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith shall determine that the
action or proceeding so directed would involve the Trustee in personal
liability. The holders of 66 2/3% in aggregate principal amount of the Senior
Debt Securities of any series then Outstanding may on behalf of the holders of
all of the Senior Debt Securities of such series waive any past default or Event
of Default and its consequences except a default in the payment of interest, if
any, on, or the principal of, the Senior Debt Securities of such series. Upon
any such waiver the Company, the Trustee and the holders of the Senior Debt
Securities of such series shall be restored to their former positions and rights
under the Senior Debt Indenture, respectively; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default shall have been
waived as permitted, said default or Event of Default shall for all purposes of
the Senior Debt Securities and the Senior Debt Indenture be deemed to have been
cured and to be not continuing.
The Trustee shall, within 90 days after the occurrence of a default, with
respect to Senior Debt Securities of any series then Outstanding, mail to all
holders of Senior Debt Securities of such series, as the names and the addresses
of such holders appear upon the Senior Debt Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of these provisions being hereby defined to be the events specified
in clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) of "-- Provisions
Applicable Solely to Senior Debt Securities -- Events of Default" above, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (iv) or (vii) but in the
case of any default of the character specified in said clause (iv) or (vii) no
such notice to Securityholders shall be given until at least 60 days after the
giving of written notice thereof to the Company pursuant to said clause (iv) or
(vii), as the case may be); provided, however, that, except in the case of
default in the payment of the principal of or interest, if any, on any of the
Senior Debt Securities, or in the payment or satisfaction of any sinking fund or
other purchase obligation, the Trustee shall be protected in withholding such
notice if and so long as the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
The Company is required to furnish to the Trustee annually a statement as to the
fulfillment by the Company of all of its obligations under the Senior Debt
Indenture.
Limitation on Liens. The Company may not, nor may any Subsidiary, mortgage,
pledge, encumber or subject to any lien or security interest to secure any
obligation of the Company or any obligation of any Subsidiary (other than
obligations owing to the Company or a wholly-owned Subsidiary) any assets,
whether owned as of the date the Senior Debt Indenture was executed or
thereafter acquired, without effectively providing that the Senior Debt
Securities shall be secured equally and ratably with (or prior to) such
obligation, unless, after given effect thereto, the aggregate amount of all such
secured debt of the Company and its Subsidiaries (excluding secured Indebtedness
existing as of the date the Senior Debt Indenture was executed and any
extensions, renewals or refundings thereof that do not increase the principal
amount of Indebtedness so extended, renewed or refunded and excluding secured
Indebtedness incurred pursuant to clauses (a), (b), (c) and (d) set forth below)
would not exceed 10% of Consolidated Net Worth of the Company and its
Subsidiaries; provided, however, that this restriction will not prevent the
Company or any Subsidiary: (a) from acquiring and retaining property subject to
mortgages, pledges, encumbrances, liens or security interests existing thereon
at the date of acquisition thereof, or from creating within one year of such
acquisition mortgages, pledges, encumbrances or liens upon property acquired by
it after the date of the Senior Debt Indenture, as security for purchase money
obligations incurred by it in connection with the acquisition of such property,
whether payable to the person from whom such property is acquired or otherwise;
(b) from mortgaging, pledging, encumbering or subjecting to any lien or security
interest Current Assets to secure Current Liabilities; (c) from extending,
renewing or refunding any Indebtedness secured by a mortgage, pledge,
encumbrance, lien or security interest on the same property theretofore subject
thereto, provided that the principal amount of such Indebtedness so extended,
renewed or refunded shall not be increased; or (d) from securing the payment of
workmen's compensation or insurance premiums or from making good faith pledges
or deposits in connection with bids, tenders, contracts (other than contracts
for the payment of money) or leases, deposits to secure public or statutory
obligations, deposits to secure surety or
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appeal bonds, pledges or deposits in connection with contracts made with or at
the request of the United States Government or any agency thereof, or pledges or
deposits for similar purposes in the ordinary course of business.
"Consolidated Net Worth" means, at any date, the sum of (i) the par value (or
value stated on the books of the Company) of the capital stock of all classes of
the Company (including preferred stock), plus (or minus in the case of a
deficit) (ii) the amount of the consolidated surplus, whether capital or earned,
of the Company and its Subsidiaries, determined in accordance with generally
accepted accounting principles.
"Current Assets" of any Person includes all assets of such Person which would be
classified as current assets in accordance with generally accepted accounting
principles.
"Current Liabilities" of any Person includes all liabilities of such Person
which would be classified as current liabilities in accordance with generally
accepted accounting principles.
Limitation on Sale and Leaseback Transactions. Neither the Company nor any
Subsidiary will enter into any transaction with any bank, insurance company or
other lender or investor, or to which any such lender or investor is a party,
providing for the leasing to the Company or a Subsidiary of any real property
(except a lease for a temporary period not to exceed three years by the end of
which it is intended that the use of such real property by the lessee will be
discontinued) which has been or is to be sold or transferred by the Company or
such Subsidiary to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such
real property unless either: (1) such transaction is the substantial equivalent
of a mortgage, pledge, encumbrance, lien or security interest which the Company
or any Subsidiary would have been permitted to create under the "Limitation on
Liens" covenant without equally and ratably securing the Senior Debt Securities,
or (2) the Company within 120 days after such transaction applied (and in any
such case the Company covenants that it will so apply) an amount equal to the
greater of (i) the net proceeds of the sale of the real property leased pursuant
to such transaction or (ii) the fair value of the real property so leased at the
time of entering into such transaction (as determined by the Board of
Directors), to the retirement of Funded Debt of the Company; provided that the
amount to be applied to the retirement of Funded Debt of the Company shall be
reduced by: (a) the principal amount of any Senior Debt Securities (for this
purpose if the Senior Debt Securities of that series are Original Issue Discount
Securities, the principal amount of the Outstanding Senior Debt Securities of
that series shall be computed and adjusted as may be specified in the terms of
that series) delivered within 120 days after such sale to the Trustee for
retirement and cancellation and (b) the principal amount of Funded Debt, other
than Senior Debt Securities, voluntarily retired by the Company within 120 days
after such sale; provided that no retirement referred to in this clause (2) may
be effected by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision.
"Funded Debt" means Indebtedness for money borrowed which by its terms matures
at or is extendible or renewable at the option of the obligor to a date more
than 12 months after the date of the creation of such Indebtedness.
PROVISION APPLICABLE SOLELY TO SENIOR SUBORDINATED DEBT SECURITIES
Prohibition on Incurrence of Senior Subordinated Debt. The Company will not
incur or suffer to exist Indebtedness that is or purports to be, pursuant to its
terms or the terms of any agreement relating thereto, senior in right of payment
to the Senior Subordinated Debt Securities and subordinate or junior in right of
payment to any other Indebtedness of the Company, provided that no Indebtedness
of the Company shall be deemed to be subordinate to any other Indebtedness of
the Company solely by virtue of any such other Indebtedness being secured or
otherwise having the benefit of any lien or security interest.
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PROVISIONS APPLICABLE SOLELY TO SENIOR SUBORDINATED AND SUBORDINATED DEBT
SECURITIES
Events of Default. Unless otherwise specified in the Prospectus Supplement, an
Event of Default is defined under each of the Subordinated Indentures with
respect to the Subordinated Securities of any series issued under such Indenture
as being as one or more of the following events:
(i) default in the payment of any installment of interest upon any of the
Subordinated Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(ii) default in the payment of the principal of any of the Subordinated
Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(iii) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Subordinated Securities of such series, as
and when such obligation shall become due and payable; or
(iv) failure on the part of the Company duly to observe or perform any other of
the covenants or agreements on the part of the Company in the Subordinated
Securities of such series or in the Subordinated Indenture applicable to such
series continued for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given to the
Company by the Trustee by registered mail, or to the Company and the Trustee by
the holders of at least 25 percent in aggregate principal amount of the
Subordinated Securities of such series issued under the applicable Subordinated
Indenture then Outstanding; or
(v) without the consent of the Company a court having jurisdiction shall enter
an order for relief with respect to the Company under the Bankruptcy Code or
without the consent of the Company a court having jurisdiction shall enter a
judgment, order or decree adjudging the Company a bankrupt or insolvent, or
enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Bankruptcy Code or
applicable state insolvency law and the continuance or any such judgment, order
or decree is unstayed and in effect for a period of 60 consecutive days; or
(vi) the Company shall institute proceedings for entry of an order for relief
with respect to the Company under the Bankruptcy Code or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to filing of such petition or to the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of substantially all of its
property, or the Company shall make a general assignment for the benefit of
creditors as recognized under the Bankruptcy Code; or
(vii) default under any bond, debenture, note or other evidence of Indebtedness
for money borrowed by the Company or under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company, whether such Indebtedness
exists on the date of such Subordinated Indenture or shall thereafter be
created, which default shall have resulted in such Indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, or any default in payment of such Indebtedness
(after the expiration of any applicable grace periods and the presentation of
any debt instrument, if required), if the aggregate amount of all such
Indebtedness which has been so accelerated and with respect to which there has
been such a default in payment shall exceed $5,000,000, without each such
default and acceleration having been rescinded or annulled within a period of 30
days after there shall have been given to the Company by the Trustee by
registered mail, or to the Company and the Trustee by the holders of at least 25
percent in aggregate principal amount of the Subordinated Securities of such
series then Outstanding, a written notice specifying each such default and
requiring the Company to cause each such default and acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
under the applicable Subordinated Indenture; or
(viii) any other Event of Default provided with respect to the Subordinated
Securities of such series under the applicable Subordinated Indenture.
If an Event of Default with respect to Subordinated Securities of any series
then Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Subordinated Securities of
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such series shall have already become due and payable, either the Trustee or the
holders of not less than 25 percent in aggregate principal amount of the
Subordinated Securities of such series then Outstanding, by notice in writing to
the Company (and to the Trustee if given by Securityholders), may declare the
unpaid principal amount (or, if the Subordinated Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all the Subordinated Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in the applicable Subordinated Indenture
or in the Subordinated Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that, if
at any time after the unpaid principal amount (or such specified amount) of the
Subordinated Securities of such series shall have been so declared due and
payable and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest, if
any, upon all of the Subordinated Securities of such series and the principal of
any and all Subordinated Securities of such series which shall have become due
otherwise than by acceleration (with interest on overdue installments of
interest, if any, to the extent that payment of such interest is enforceable
under applicable law and on such principal at the rate borne by the Subordinated
Securities of such series to the date of such payment or deposit) and the
reasonable compensation, disbursements, expenses and advances of the Trustee,
its agents, attorneys and counsel, and any and all defaults under the applicable
Subordinated Indenture, other than the nonpayment of such portion of the
principal amount of and accrued interest, if any, on Subordinated Securities of
such series which shall have become due by acceleration, shall have been cured
or shall have been waived in accordance with the applicable Subordinated
Indenture or provision deemed by the Trustee to be adequate shall have been made
therefor -- then and in every such case the holders of a majority in aggregate
principal amount of the Subordinated Securities of such series then Outstanding,
by written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default with respect to the Company
specified in clause (v) or (vi) above occurs, the unpaid principal amount (or,
if the Subordinated Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Subordinated
Securities of each series then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act by the Trustee
or any Securityholder. If the Trustee shall have proceeded to enforce any right
under the applicable Subordinated Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company, the Trustee and the Securityholders shall be
restored respectively to their several positions and rights under the applicable
Subordinated Indenture, and all rights, remedies and powers of the Company, the
Trustee and the Securityholders shall continue as though no such proceeding had
been taken. Except with respect to an Event of Default pursuant to clause (i),
(ii) or (iii) above, the Trustee shall not be charged with knowledge of any
Event of Default unless written notice thereof shall have been given to the
Trustee by the Company, a Paying Agent or any Securityholder.
Each of the Subordinated Indentures provides that, subject to the duty of the
Trustee during default to act with the required standard of care, the Trustee
will be under no obligation to exercise any of its rights or powers under such
Subordinated Indenture at the request or direction of any of the holders or
Subordinated Securities issued under the such Subordinated Indenture, unless
such holders shall have offered to the Trustee reasonable security or indemnity.
No holder of any Subordinated Securities of any series then Outstanding shall
have any right by virtue of or by availing of any provision of the applicable
Subordinated Indenture to institute any suit, action or proceeding in equity or
at law upon or under or with respect to such Subordinated Indenture or the
Subordinated Securities issued under such Subordinated Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy under such Subordinated Indenture or thereunder, unless such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as provided in such Subordinated Indenture, and unless the
holders of not less than 25 percent in aggregate principal amount of the
Subordinated Securities of such series then Outstanding shall have made written
request to the Trustee to institute such
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action, suit or proceeding in its own name as Trustee under such Subordinated
Indenture and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. Notwithstanding any other provisions in the
applicable Subordinated Indenture, but subject to the subordination provisions
of the applicable Subordinated Indenture, the right of any holder of any
Subordinated Security to receive payment of the principal of and interest, if
any, on such Subordinated Security, on or after the respective due dates
expressed in such Subordinated Security, or, if applicable, to convert such
Subordinated Security as provided in the applicable Subordinated Indenture, or
to institute suit for the enforcement of any such payment on or after such
respective dates or for the enforcement of any such right to convert shall not
be impaired or affected without the consent of such holder.
The holders of a majority in aggregate principal amount of the Subordinated
Securities of any series then Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Subordinated Securities of such series; provided, however, that
(subject to certain exceptions) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine upon advice of counsel
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith shall determine that the action or proceeding so directed
would involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Subordinated Securities of any series then
Outstanding may on behalf of the holders of all of the Subordinated Securities
of such series waive any past default or Event of Default under the applicable
Subordinated Indenture and its consequences except a default in the payment of
interest, if any, on, or the principal of, the Subordinated Securities of such
series. Upon any such waiver the Company, the Trustee and the holders of the
Subordinated Securities of such series shall be restored to their former
positions and rights under the applicable Subordinated Indenture, respectively;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event of
Default shall have been waived as permitted, said default or Event of Default
shall for all purposes of the applicable Subordinated Securities and the
applicable Subordinated Indenture be deemed to have been cured and to be not
continuing.
The Trustee shall, within 90 days after the occurrence of a default, with
respect to Subordinated Securities of any series then Outstanding, mail to all
holders of Subordinated Securities of such series, as the names and the
addresses of such holders appear upon the applicable Subordinated Security
register, notice of all defaults known to the Trustee with respect to such
series, unless such defaults shall have been cured before the giving of such
notice (the term "defaults" for the purpose of these provisions being hereby
defined to be the events specified in clauses (i), (ii), (iii), (iv), (v), (vi),
(vii) and (viii) of " -- Provisions Applicable Solely to Senior Subordinated and
Subordinated Debt Securities -- Events of Default" above, not including periods
of grace, if any, provided for therein and irrespective of the giving of the
written notice specified in said clause (iv) or (vii) but in the case of any
default of the character specified in said clause (iv) or (vii) no such notice
to Securityholders shall be given until at least 60 days after the giving of
written notice thereof to the Company pursuant to said clause (iv) or (vii), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Subordinated
Securities, or in the payment or satisfaction of any sinking fund or other
purchase obligation, the Trustee shall be protected in withholding such notice
if and so long as the Trustee in good faith determines that the withholding of
such notice is in the best interests of the Securityholders.
The Company is required to furnish to the Trustee annually a statement as to the
fulfillment by the Company of all of its obligations under the applicable
Subordinated Indenture.
Subordination. The Subordinated Securities will be subordinate and junior in
right to payment, to the extent set forth in the applicable Subordinated
Indenture, to all Senior Indebtedness (as defined below for each of the
Subordinated Indentures) of the Company. If the Company should default in the
payment of any principal of or premium or interest on any Senior Indebtedness
when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise, then, upon
written notice of such default to the Company by the holders of such Senior
Indebtedness or any trustee therefor and subject to
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certain rights of the Company to dispute such default and subject to proper
notification of the Trustee, unless and until such default shall have been cured
or waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) will be made or agreed to be made
for principal of or premium, if any, or interest, if any, on the applicable
Subordinated Securities, or in respect of any redemption, retirement, purchase
or other acquisition of the applicable Subordinated Securities other than those
made in capital stock of the Company (or cash in lieu of fractional shares
thereof) pursuant to any conversion right of the Subordinated Securities or
otherwise made in capital stock of the Company.
"Senior Indebtedness" is defined in the Senior Subordinated Debt Indenture as
Indebtedness of the Company outstanding at any time except (a) any Indebtedness
of the Company that pursuant to its terms or the terms of any agreement relating
thereto or by operation of law is subordinate or junior in right of payment to
any other Indebtedness of the Company, provided that no Indebtedness of the
Company shall be deemed to be subordinate to any other Indebtedness of the
Company solely by virtue of any such other Indebtedness being secured or
otherwise having the benefit of any lien or security interest, (b) any
Indebtedness as to which, by the terms of the instrument creating or evidencing
the same, it is provided that such Indebtedness is not senior in right of
payment to the Senior Subordinated Debt Securities, (c) the Senior Subordinated
Debt Securities, (d) the Company's subordinated indebtedness existing on the
date of the Senior Subordinated Debt Indenture, (e) any Indebtedness of the
Company to a wholly-owned Subsidiary of the Company, (f) interest accruing after
the filing of a petition initiating certain bankruptcy or insolvency proceedings
unless such interest is an allowed claim enforceable against the Company in a
proceeding under federal or state bankruptcy laws and (g) trade accounts
payable.
"Senior Indebtedness" is defined in the Subordinated Debt Indenture as
Indebtedness of the Company outstanding at any time except (a) any Indebtedness
as to which, by the terms of the instrument creating or evidencing the same, it
is provided that such Indebtedness is not senior in right of payment to the
Subordinated Debt Securities, (b) the Subordinated Debt Securities, (c) the
Company's subordinated indebtedness existing on the date of the Subordinated
Debt Indenture, (d) any Indebtedness of the Company to a wholly owned Subsidiary
of the Company, (e) interest accruing after the filing of a petition initiating
certain bankruptcy or insolvency proceedings unless such interest is an allowed
claim enforceable against the Company in a proceeding under federal or state
bankruptcy laws and (f) trade accounts payable.
"Indebtedness" is defined in each Subordinated Indenture as, with respect to any
Person, (a)(i) the principal of and premium and interest, if any, on
indebtedness for money borrowed of such Person evidenced by bonds, notes,
debentures or similar obligations, including any guaranty by such person of any
indebtedness for money borrowed of any other Person, whether any such
indebtedness or guaranty is outstanding on the date of such Subordinated
Indenture or is thereafter created, assumed or incurred, (ii) the principal of
and premium and interest, if any, on indebtedness for money borrowed, incurred,
assumed or guaranteed by such Person in connection with the acquisition by it or
any of its subsidiaries of any other businesses, properties or other assets and
(iii) lease obligations which such Person capitalizes in accordance with
Statement of Financial Accounting Standards No. 13 promulgated by the Financial
Accounting Standards Board or such other generally accepted accounting
principles as may be from time to time in effect, (b) any other indebtedness of
such Person, including any indebtedness representing the deferred and unpaid
balance of the purchase price of any property or interest therein, including any
such balance that constitutes a trade account payable, and any guaranty,
endorsement or other contingent obligation of such Person in respect of any
indebtedness of another, which is outstanding on the date of such Subordinated
Indenture or is thereafter created, assumed or incurred by such Person and (c)
any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clause (a) or (b) above.
If (i) without the consent of the Company a court having jurisdiction shall
enter (A) an order for relief with respect to the Company under the United
States federal bankruptcy laws, (B) a judgment, order or decree adjudging the
Company as bankrupt or insolvent or (C) an order for relief for reorganization,
arrangement, adjustment or composition of or in respect of the Company under the
United States federal bankruptcy laws or state insolvency laws or (ii) the
Company shall institute proceedings for the entry of an order for relief with
respect to the Company under the United States federal bankruptcy laws or for an
adjudication of insolvency, or shall consent to the institution of bankruptcy or
insolvency proceedings against it, or shall file a petition
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seeking, or seek or consent to reorganization, arrangement, composition or
similar relief under the United States federal bankruptcy laws or any applicable
state law, or shall consent to the filing of such petition or to the appointment
of a receiver, custodian, liquidator, assignee, trustee, sequestrator or similar
official in respect of the Company or of substantially all of its property, or
the Company shall make a general assignment for the benefit of creditors, then
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) will first be paid in full before any
payment or distribution, whether in cash, securities or other property, is made
on account of the principal of or premium, if any, or interest, if any, on the
applicable Subordinated Securities. In such event, any payment or distribution
on account of the principal of or premium, if any, or interest, if any, on the
applicable Subordinated Securities, whether in cash, securities or other
property (other than securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the applicable Subordinated Securities, to the payment of all
Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for the subordination provisions) be payable or deliverable in
respect of the applicable Subordinated Securities will be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the priorities
then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) has
been paid in full. In the event of any such proceeding, after payment in full of
all sums owing with respect to Senior Indebtedness, the holders of Subordinated
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Subordinated Securities issued under the applicable
Subordinated Indenture, will be entitled to be repaid from the remaining assets
of the Company the amounts at the time due and owing on account of unpaid
principal of or any premium or any interest on the Subordinated Securities
issued under the applicable Subordinated Indenture and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or obligations of the
Company ranking junior to the Subordinated Securities issued under the
applicable Subordinated Indenture and such other obligations. If,
notwithstanding the foregoing, any payment or distribution on the Subordinated
Securities issued under the applicable Subordinated Indenture of any character,
whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Subordinated
Securities issued under the applicable Subordinated Indenture, to the payment of
all Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan or reorganization or readjustment), shall be
received by the Trustee or any holder of any Subordinated Securities issued
under the applicable Subordinated Indenture in contravention of any of the terms
of the applicable Subordinated Indenture, such payment or distribution will be
received in trust for the benefit of, and will be paid over or delivered and
transferred to, the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all such Senior Indebtedness in full. In the event of the
failure of the Trustee or any holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is irrevocably
authorized to endorse or assign the same.
Each of the Subordinated Indentures will provide that Senior Indebtedness shall
not be deemed to have been paid in full unless the holders thereof shall have
received cash, securities or other property equal to the amount of such Senior
Indebtedness then outstanding. Upon the payment in full of all Senior
Indebtedness, the holders of Subordinated Securities of each series shall be
subrogated to all rights of any holders of Senior Indebtedness to receive any
further payments or distributions applicable to such Senior Indebtedness until
the indebtedness evidenced by the Subordinated Securities of such series shall
have been paid in full, and such payments or distributions received by such
holders, by reason of such subrogation, of cash, securities or other property
which otherwise would be paid or distributed to the holders of Senior
Indebtedness with respect to such Series, shall, as between the Company and its
creditors other than the holders of such Senior Indebtedness, on the one hand,
and such holders, on the other hand, be deemed to be a payment by the Company on
account of such Senior Indebtedness, and not on account of the Subordinated
Securities of such series.
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By reason of such subordination, in the event of the insolvency of the Company,
holders of Senior Indebtedness and holders of other obligations of the Company
that are not subordinated to Senior Indebtedness may receive more, ratably, than
holders of the Subordinated Securities. Such subordination will not prevent the
occurrence of an Event of Default or limit the right of acceleration in respect
of the Subordinated Securities.
Conversion. Each of the Subordinated Indentures will provide that a series of
Subordinated Securities may be convertible into Common Stock (or cash in lieu
thereof). The following provisions will apply to Debt Securities that are
convertible Subordinated Securities unless otherwise provided in the Prospectus
Supplement for such Debt Securities.
The holder of any convertible Subordinated Securities will have the right
exercisable at any time prior to maturity, subject to prior redemption by the
Company, to convert such Subordinated Securities into shares of Common Stock at
the conversion price or conversion rate set forth in the Prospectus Supplement,
subject to adjustment. The holder of convertible Subordinated Securities may
convert any portion thereof which is $1,000 in principal amount or any integral
multiple thereof.
In certain events, the conversion price or conversion rate will be subject to
adjustment as set forth in the applicable Subordinated Indenture. Such events
include issuance of shares of Common Stock as a dividend or distribution on the
Common Stock; subdivisions, combinations and reclassifications of the Common
Stock; redemption of the preferred share purchase rights associated with the
Common Stock; the issuance to all holders of Common Stock of rights or warrants
entitling the holders thereof (for a period not exceeding 45 days) to subscribe
for or purchase shares of Common Stock at a price per share less than the then
current market price per share of Common Stock (as determined pursuant to the
applicable Subordinated Indenture); and the distribution to substantially all
holders of Common Stock of evidences of indebtedness, equity securities
(including equity interests in the Company's Subsidiaries) other than Common
Stock, or other assets (excluding cash dividends paid from surplus) or
subscription rights or warrants (other than those referred to above). No
adjustment of the conversion price or conversion rate will be required unless an
adjustment would require a cumulative increase or decrease of at least 1% in
such price or rate. The Company has been advised by its counsel that certain
adjustments in the conversion price or conversion rate in accordance with the
foregoing provisions may result in constructive distributions to either holders
of the Subordinated Securities issued under the applicable Subordinated
Indenture or holders of Common Stock which would be taxable pursuant to Treasury
Regulations issued under Section 305 of the Internal Revenue Code of 1986. The
amount of any such taxable constructive distribution will be the fair market
value of the Common Stock that is treated as having been constructively
received, such value being determined as of the time the adjustment resulting in
the constructive distribution is made.
Fractional shares of Common Stock will not be issued upon conversion, but, in
lieu thereof, the Company will pay a cash adjustment based on the then current
market price for the Common Stock. Upon conversion, no adjustments will be made
for accrued interest or dividends, and therefore convertible Subordinated
Securities surrendered for conversion between the record date for an interest
payment and the interest payment date (except convertible Subordinated
Securities called for redemption on a redemption date during such period) must
be accompanied by payment of an amount equal to the interest thereon which the
registered holder is to receive.
In the case of any consolidation or merger of the Company (with certain
exceptions) or any sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company, the holder of
convertible Subordinated Securities, after the consolidation, merger, sale,
lease, exchange or other disposition, will have the right to convert such
convertible Subordinated Securities into the kind and amount of securities, cash
and other property which the holder would have been entitled to receive upon or
in connection with such consolidation, merger, sale, lease, exchange or other
disposition, if the holder had held the Common Stock issuable upon conversion of
such convertible Subordinated Securities issued under the applicable
Subordinated Indenture immediately prior to such consolidation, merger, sale,
lease, exchange or other disposition.
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CONCERNING THE TRUSTEES
Each of the Trustees is a depositary for funds of, makes loans to and performs
other services for the Company in the normal course of business.
In addition to serving as Trustee under the Senior Subordinated Indenture and
the Subordinated Indenture, Texas Commerce Bank also serves as Trustee under (i)
the Debenture Indenture (the "Debenture Indenture") dated as of June 15, 1992,
between the Company and Texas Commerce Bank, as trustee, and (ii) the Guarantees
of Notes of Subsidiaries Indenture (the "Guarantees Indenture") dated as of May
1, 1970, between the Company and Texas Commerce Bank, as trustee. Debt of the
Company issued pursuant to the Debenture Indenture and the Guarantees Indenture
constitutes Senior Indebtedness. As of June 30, 1994, the Company had
outstanding approximately $26 million principal amount of Senior Indebtedness
issued pursuant to the Debenture Indenture and approximately $34 million
principal amount of guarantees issued pursuant to the Guarantees Indenture.
Pursuant to the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), a trustee under an indenture may be deemed to have a conflicting
interest, and may, under certain circumstances set forth in the Trust Indenture
Act, be required to resign as trustee under such indenture, if the securities
issued under such indenture are in default (as such term is defined in such
indenture) and the trustee is the trustee under another indenture under which
any other securities of the same obligor are outstanding, subject to certain
exceptions set forth in the Trust Indenture Act. In such event, the obligor must
take prompt steps to have a successor trustee appointed in the manner provided
in the indenture from which the trustee has resigned.
Pursuant to the Trust Indenture Act, Texas Commerce Bank, as trustee under the
Senior Subordinated Indenture, the Subordinated Indenture, the Debenture
Indenture and the Guarantees Indenture, could be required to resign as trustee
under one or more of such indentures should a default occur under one or more of
such indentures. In such event, the Company would be required to take prompt
steps to have a successor trustee or successor trustees appointed in the manner
provided in the applicable indenture or indentures.
DESCRIPTION OF PREFERRED STOCK
Under SCI's Restated Articles of Incorporation, as amended (the "Articles"), SCI
has the authority to issue 1,000,000 shares of preferred stock, $1.00 par value
per share (the "Preferred Stock"). The Preferred Stock may be divided into such
amounts and issued from time to time in one or more series as may be fixed and
determined by the Board of Directors. The relative rights and preferences among
each series of Preferred Stock shall be such as are provided in any resolutions
adopted by the Board of Directors providing for the issue of such series of
Preferred Stock (each such resolution, a "Directors' Resolution"). The Board of
Directors is authorized to fix and determine such variations and the relative
rights and preferences as between series as shall be stated in a Directors'
Resolution. The preemptive rights of shareholders of Preferred Stock to acquire
authorized but unissued shares, or to acquire treasury shares, is expressly
denied. There are no shares of any series of SCI Preferred Stock currently
outstanding. However, in connection with the adoption of the Company's
shareholders' rights plans the Company has designated and reserved for issuance
upon exercise of rights granted to its shareholders 600,000 shares of Series C
Junior Participating Preferred Stock.
The Preferred Stock may be issued or sold to such persons and for such
consideration as may be determined from time to time by the Board of Directors
and, whether or not convertible into Common Stock, need not first be offered to
the holders of Common Stock, and when issued such shares of Preferred Stock
shall be considered fully paid and non-assessable.
The following summaries of certain provisions of the Preferred Stock do not
purport to be complete and are subject, and are qualified in their entirety by
reference, with respect to any particular series of Preferred Stock, to the
description of the terms thereof included in the applicable Prospectus
Supplement and to the applicable
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provisions of the Articles and the Company's Bylaws (the "Bylaws"). The
accompanying Prospectus Supplement with respect to any series of Preferred Stock
will set forth the following terms:
(a) The designation of such series;
(b) The number of shares constituting such series;
(c) The rate of dividends;
(d) The price at and the terms and conditions on which shares of such series may
be redeemed;
(e) The amount payable upon shares of such series in the event of involuntary
liquidation;
(f) The amount payable upon shares of each series in the event of voluntary
liquidation;
(g) Sinking fund provisions for the redemption or purchase of such series;
(h) The terms and conditions on which shares of such series may be converted;
and
(i) Any special rights of the shares of such series (and the accompanying
Prospectus Supplement may state that any of the terms set forth herein is
inapplicable to such series).
DIVIDENDS
The Preferred Stock of each series will be entitled to receive dividends, when
and as declared by the Board of Directors, at the rate and on such other terms
and conditions as may be fixed for such series, in preference to dividends on
the Common Stock or on other shares of capital stock of the Company ranking
junior to the Preferred Stock as to dividends ("Junior Stock").
DIVIDEND PREFERENCE
Subject to such further conditions or restrictions as may be imposed in any
Directors' Resolution, so long as any shares of Preferred Stock are outstanding,
the Company will not declare or pay any dividend, in cash or stock or otherwise
(other than dividends payable in shares of Junior Stock), on any shares of
Junior Stock or make any distribution upon or purchase or redeem or otherwise
acquire for a valuable consideration any shares of Junior Stock (a) unless all
dividends for Preferred Stock for all past dividend periods will have been paid
or declared and a sum sufficient for the payment thereof set apart for payment
and be in the process of payment, and the full dividend thereon for the current
dividend period will have been paid or declared, and (b) unless, as to each
series of the Preferred Stock for which a sinking fund will have been provided,
the Company will have retired the number of shares of Preferred Stock of such
series required to have been retired for the sinking fund or otherwise will have
met the obligations of said sinking fund.
REDEMPTION
Subject to such further conditions or restrictions as may be imposed in any
Directors' Resolution, the shares of any series of Preferred Stock will be
subject to redemption in whole or in part at the applicable redemption price as
provided for such series on the terms and conditions and upon notice as set
forth in the applicable Prospectus Supplement.
Notice of any such redemption will be given to each holder of shares being
called, either personally or by mail, not less than 20 nor more than 50 days
before the date fixed for redemption. If mailed, such notice will be deemed to
be delivered when deposited in the United States mail addressed to the
shareholder at the address as it appears on the stock transfer book of the
Company, with postage thereon prepaid.
If less than all outstanding shares of the series are to be redeemed, the shares
to be redeemed will be selected for redemption ratably or by lot in such manner
as may be prescribed by resolution of the Board of Directors. The notice of
redemption will set forth the designation of the series of which the shares to
be redeemed constitute a part, the date fixed for redemption, the redemption
price, the place at which the shareholders may obtain payment of the redemption
price upon the surrender of their respective share certificates and will include
a
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statement with respect to the existence of any right of conversion with respect
to the shares to be redeemed and the period within which such right may be
exercised.
The Company may, on or prior to the date fixed for redemption of any shares of
Preferred Stock, deposit with any bank or trust company in Texas, or any bank or
trust company in the United States, duly appointed and acting as transfer agent
for the Company, as a trust fund, a sum sufficient to redeem shares called for
redemption with irrevocable instructions and authority to such bank or trust
company to give or complete the notice of redemption thereof and to pay, on or
after the date fixed for such redemption, to the respective holders of the
shares as evidenced by a list of holders, the redemption price upon the
surrender of their respective share certificates. Thereafter, from and after the
date fixed for redemption, such shares will be redeemed and dividends thereon
will cease to accrue after such date fixed for redemption. Such deposit will be
deemed to constitute full payment of such shares to their holders. Thereafter,
such shares will no longer be deemed to be outstanding, and the holders thereof
will cease to be shareholders with respect to such shares, and will have no
rights with respect thereto except the right to receive from the bank or trust
company payment of the redemption price of such shares without interest, upon
the surrender of their respective certificates therefor, and any right to
convert such shares which may exist. In case the holders of such shares will
not, within six years after such deposit, claim the amount deposited for
redemption thereof, such bank or trust company will upon demand pay over to the
Company the balance of such amounts so deposited to be held in trust in such
bank or trust company and such trust company thereupon will be relieved of all
responsibility to the holders thereof.
Any shares of Preferred Stock which are redeemed or purchased by the Company and
cancelled will be restored to the status of authorized but unissued shares and
may be reissued as shares of another series.
VOTING
The holders of the Preferred Stock together with the holders of the Common
Stock, all voting as one class, will possess voting power for the election of
directors and for all other purposes, subject to such limitations as may be
imposed by law and by any provision of the Articles. In the exercise of its
voting power, the Preferred Stock will be entitled to one vote for each share
held.
SPECIAL DIRECTORS
Whenever, at any time or times, dividends payable on any series of Preferred
Stock are in arrears in an aggregate amount equivalent as to such series to six
full dividends, there will be vested in the holders of shares of all outstanding
Preferred Stock, voting as one class and with one vote for each share, the right
to elect two directors of the Company. Such right of the holders of Preferred
Stock to vote for the election of two directors may be exercised at any annual
meeting or at any special meeting called for such purpose, or at any adjournment
thereof, until all arrearages and dividends on the outstanding shares of
Preferred Stock have been paid in full or declared and funds sufficient for the
payment thereof deposited in trust, and when so paid or provided for, then such
right will cease. So long as such right to vote continues, the Secretary of the
Company may call, and upon written request of the holders of record of ten per
cent or more of the outstanding Preferred Stock, addressed to the Secretary at
the principal office of the Company, will call a special meeting of the holders
of Preferred Stock for the election of such two directors. Such meeting will be
held within 50 days after delivery of such request to such Secretary, at the
place and upon the notice provided by law and in the Bylaws for the holding of
meeting of its shareholders. If at any such meeting or any adjournment thereof
the holders of at least a majority of the then outstanding shares of Preferred
Stock then entitled to vote in such election are present or represented by
proxy, then, by vote of the holders of at least a majority of all such shares of
Preferred Stock present or represented in such meeting, the then authorized
number of directors of the Company will be increased by two and the holders of
such shares of Preferred Stock will be entitled to elect such two additional
directors. Directors so elected will serve until the next annual meeting or
until their successors are elected and will qualify; provided, however, that
whenever all arrearages and dividends on all outstanding shares of Preferred
Stock have been paid or declared and funds sufficient for the payment thereof
deposited in trust, the term of the office of the persons so elected as
directors will forthwith terminate, and the number of the whole Board of
Directors of the Company will be reduced accordingly. In case of any vacancy
occurring among the directors so elected, the remaining director who has been so
elected may appoint a successor to hold office for the unexpired term of the
director whose place is
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vacant. If both directors so elected by the holders of the Preferred Stock cease
to serve as directors before their term expires, the holders of Preferred Stock
then outstanding may, at a special meeting of such holders called as provided in
the Articles, elect successors to hold office for the unexpired terms of the
directors whose places are vacant. In any vote for directors as provided in the
Articles, each share of Preferred Stock will be entitled to vote.
APPROVAL OF CHANGES
The Company will not, without the approval (by vote at a meeting or by consent
in writing) of the holders of at least two-thirds of the outstanding shares of
Preferred Stock and subject to the provisions in the Articles with respect to
certain additional supermajority voting requirements:
(i) Amend or repeal any provision of, or add any provision to the Articles or
Bylaws if such action would alter or change the preferences, rights, privileges
or powers of, or the restrictions provided for the benefit of, the Preferred
Stock; or
(ii) Authorize or create shares of any class of stock having any preference or
priority as to dividends, assets or other characteristics superior to the
Preferred Stock, or authorize or create shares of stock of any class or any
bonds, indentures, notes or other obligations convertible into or exchangeable
for or having option or rights to purchase, any shares of stock having any such
preference or priority; or
(iii) Reclassify any Junior Stock into Preferred Stock or into shares having any
preference or priority as to dividends, assets or any other characteristics
superior to the Preferred Stock; or
(iv) Increase the aggregate number of authorized shares of Preferred Stock or
create a new class of shares having rights and preferences equal to the shares
of Preferred Stock.
LIQUIDATION PREFERENCE
In the event of any liquidation, dissolution or winding up of the Company, the
Preferred Stock of each series shall be entitled to payment of such amount or
amounts in preference to any payment on Junior Stock as shall be provided in the
Directors' Resolution providing for the issuance of such shares of Preferred
Stock. In any such event, if the assets available for distribution shall be
insufficient to permit payment of the full preferential amount to all holders of
Preferred Stock, then distribution shall be made ratably among such holders
according to the amount due to each.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue warrants (which may be titled either "options" or
"warrants") for the purchase of Common Stock (the "Common Stock Warrants"). The
Common Stock Warrants may be issued independently or together with any
Securities offered by any Prospectus Supplement and may be attached to or
separate from such Securities. Each series of Common Stock Warrants will be
issued under a separate warrant agreement (a "Warrant Agreement") to be entered
into between the Company and a bank or trust company, as Warrant Agent, all as
set forth in the Prospectus Supplement relating to the particular issue of
offered Common Stock Warrants. The Warrant Agent will act solely as an agent of
the Company in connection with the Common Stock Warrant Certificates and will
not assume any obligation or relationship of agency or trust for or with any
holders of Common Stock Warrant Certificates or beneficial owners of Common
Stock Warrants. The form of Warrant Agreement, including the form of Common
Stock Warrant Certificate representing the Common Stock Warrants, is filed as an
exhibit to the Registration Statement to which this Prospectus pertains. The
following summaries of certain provisions of the form of Warrant Agreement and
Common Stock Warrant Certificate do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all the provisions of
the Warrant Agreement and the Common Stock Warrant Certificate.
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GENERAL
Reference is made to the accompanying Prospectus Supplement relating to the
Common Stock Warrants for the following terms of the Common Stock Warrants:
(i) the offering price;
(ii) the number of shares of Common Stock purchasable upon exercise of each such
Common Stock Warrant and the price at which such number of shares of Common
Stock may be purchased upon such exercise;
(iii) the date on which the right to exercise such Common Stock Warrants shall
commence and the date on which such right shall expire (the "Expiration Date");
and
(iv) any other terms of such Common Stock Warrants (and the accompanying
Prospectus Supplement may state that any of the terms set forth herein is
inapplicable to such series).
Common Stock Warrants for the purchase of Common Stock will be offered and
exercisable for U.S. dollars only and will be in registered form only.
Common Stock Warrant Certificates may be exchanged for new Common Stock Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration or transfer, and may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement. Prior to the exercise of any Common Stock
Warrants, holders of such Common Stock Warrants will not have any rights of
holders of the Common Stock purchasable upon such exercise, including the right
to receive payments of dividends, if any, on the Common Stock purchasable upon
such exercise or to exercise any applicable right to vote.
EXERCISE OF COMMON STOCK WARRANTS
Each Common Stock Warrant will entitle the holder thereof to purchase such
shares of Common Stock at such exercise price as shall in each case be set forth
in, or calculable from, the Prospectus Supplement relating to the offered Common
Stock Warrants. After the close of business on the Expiration Date (or such
later date to which such Expiration Date may be extended by the Company)
unexercised Common Stock Warrants will become void.
Common Stock Warrants may be exercised by delivering to the Warrant Agent
payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Common Stock purchasable upon such exercise together
with certain information set forth on the reverse side of the Common Stock
Warrant Certificate. Common Stock Warrants will be deemed to have been exercised
upon receipt of payment of the exercise price, subject to the receipt, within
five business days, of the Common Stock Warrant Certificate evidencing such
Common Stock Warrants. Upon receipt of such payment and the Common Stock Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver the
Common Stock purchasable upon such exercise. If fewer than all of the Common
Stock Warrants represented by such Common Stock Warrant Certificate are
exercised, a new Common Stock Warrant Certificate will be issued for the
remaining amount of Common Stock Warrants.
AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENT
The Warrant Agreement for a series of Common Stock Warrants may be amended or
supplemented without the consent of the holders of the Common Stock Warrants
issued thereunder to effect changes that are not inconsistent with the
provisions of the Common Stock Warrants and that do not adversely affect the
interests of the holders of the Common Stock Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the exercise
price of, and the number of shares of Common Stock covered by, a Common Stock
Warrant are subject to adjustment in certain events,
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including: (i) the issuance of Common Stock as a dividend or distribution on the
Common Stock; (ii) subdivisions and combinations of the Common Stock; (iii) the
issuance to all holders of Common Stock of certain rights or warrants entitling
them to subscribe for or purchase Common Stock within 45 days after the date
fixed for the determination of the stockholders entitled to receive such rights
or warrants, at less than the current market price (as defined in the Warrant
Agreement for such series of Common Stock Warrants); and (iv) the distribution
to all holders of Common Stock of evidences of indebtedness or assets of the
Company (excluding certain cash dividends and distributions described below) or
rights or warrants (excluding those referred to above). In the event that the
Company shall distribute any rights or warrants to acquire capital stock
pursuant to clause (iv) above (the "Capital Stock Rights"), pursuant to which
separate certificates representing such Capital Stock Rights will be distributed
subsequent to the initial distribution of such Capital Stock Rights (whether or
not such distribution shall have occurred prior to the date of the issuance of a
series of Common Stock Warrants), such subsequent distribution shall be deemed
to be the distribution of such Capital Stock Rights; provided that the Company
may, in lieu of making any adjustment in the exercise price of, and the number
of shares of Common Stock covered by, a Common Stock Warrant upon a distribution
of separate certificates representing such Capital Stock Rights, make proper
provision so that each holder of such a Common Stock Warrant who exercises such
Common Stock Warrant (or any portion thereof) (a) before the record date for
such distribution of separate certificates shall be entitled to receive upon
such exercise shares of Common Stock issued with Capital Stock Rights and (b)
after such record date and prior to the expiration, redemption or termination of
such Capital Stock Rights shall be entitled to receive upon such exercise, in
addition to the shares of Common Stock issuable upon such exercise, the same
number of such Capital Stock Rights as would a holder of the number of shares of
Common Stock that such Common Stock Warrant so exercised would have entitled the
holder thereof to acquire in accordance with the terms and provisions applicable
to the Capital Stock Rights if such Common Stock Warrant was exercised
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Company or any majority owned subsidiary shall
not be deemed outstanding for the purpose of any adjustment required pursuant to
clause (iv) above.
No adjustment in the exercise price of, and the number of shares of Common Stock
covered by, a Common Stock Warrant will be made for regular quarterly or other
periodic or recurring cash dividends or distributions or for cash dividends or
distributions to the extent paid from retained earnings. No adjustment will be
required unless such adjustment would require a change of at least 1% in the
exercise price then in effect; provided that any such adjustment not so made
will be carried forward and taken into account in any subsequent adjustment; and
provided further that any such adjustment not so made shall be made no later
than three years after the occurrence of the event requiring such adjustment to
be made or carried forward. Except as stated above, the exercise price of, and
the number of shares of Common Stock covered by, a Common Stock Warrant will not
be adjusted for the issuance of Common Stock or any securities convertible into
or exchangeable for Common Stock, or securities carrying the right to purchase
any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Company or (iii) a sale or conveyance to
another corporation of the property and assets of the Company as an entirety or
substantially as an entirety, in each case as a result of which holders of the
Company's Common Stock shall be entitled to receive stock, securities, other
property or assets (including cash) with respect to or in exchange for such
Common Stock, the holders of the Common Stock Warrants then outstanding will be
entitled thereafter to convert such Common Stock Warrants into the kind and
amount of shares of stock and other securities or property which they would have
received upon such reclassification, change, consolidation, merger, sale or
conveyance had such Common Stock Warrants been exercised immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance.
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DESCRIPTION OF THE LLC PREFERRED SECURITIES
The following is a summary of certain terms and provisions of the LLC Preferred
Securities offered hereby. Reference is made to the LLC Articles, the
Regulations of SCI Finance (the "LLC Regulations") and the amendment to the LLC
Regulations adopted or to be adopted by the Manager establishing the rights,
preferences, privileges, limitations and restrictions relating to the LLC
Preferred Securities (the "Declaration"). The summaries set forth below and in
the accompanying Prospectus Supplement address the material terms of the LLC
Preferred Securities of any particular series but do not purport to be complete
and are subject to, and qualified in their entirety by reference to, the LLC
Articles, the LLC Regulations and the Declaration. Capitalized terms used in the
summaries below and not otherwise defined herein have the respective meanings
set forth in the LLC Articles, the LLC Regulations and the Declaration.
GENERAL
SCI Finance is authorized to issue up to 7,000,000 LLC Preferred Shares, in one
or more series or classes, with such dividend rights, liquidation preferences
per share, redemption provisions, voting rights, conversion or exchange rights
and other rights, preferences, privileges, limitations and restrictions as are
set forth in the LLC Articles, the LLC Regulations and the Declaration adopted
or to be adopted by the Manager. All of the LLC Preferred Shares which may be
issued in one or more series or classes, including the LLC Preferred Securities,
will rank pari passu with each other with respect to participation in profits
and assets. The LLC Articles and the LLC Regulations as currently in effect do
not permit the issuance of any preference interests ranking, as to participation
in the profits or the assets of SCI Finance, senior to the LLC Preferred Shares.
Reference is made to the accompanying Prospectus Supplement relating to the LLC
Preferred Securities for the following terms of the LLC Preferred Securities:
(a) title;
(b) the dividend terms (when dividends will accrue and be payable);
(c) the optional redemption provisions and the Redemption Price;
(d) the liquidation preference per LLC Preferred Security;
(e) the conversion rights for, and conversion price per share of, SCI Common
Stock;
(f) certain provisions relating to Non-Stock or Common Stock Fundamental Changes
(as defined below);
(g) the initial Reference Market Price (as defined below);
(h) book entry provisions, if other than as set forth below; and
(i) any other terms of the series (and the accompanying Prospectus Supplement
may state that any of the terms set forth herein is inapplicable to such
series).
DIVIDENDS
Cumulative dividends on the LLC Preferred Securities will accrue and be payable
as set forth in the accompanying Prospectus Supplement, when, as and if declared
by SCI Finance, except as otherwise described below.
The annual dividend payable on each LLC Preferred Security will be fixed as set
forth in the accompanying Prospectus Supplement. The amount of dividends is
computed on the basis of twelve 30-day months and a 360-day year and, for any
period shorter than a full monthly dividend period, will be computed on the
basis of the actual number of days elapsed in such period. Payment of dividends
generally is limited to the amount of funds held by SCI Finance and legally
available therefor.
Dividends declared on the LLC Preferred Securities are payable to the record
holders thereof as they appear on the register for the LLC Preferred Securities
on the record date, which will be one Business Day prior to the relevant payment
date. In the event that any date on which dividends are payable on the LLC
Preferred
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Securities is not a Business Day, then payment of the dividend payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. The term "Business Day" shall mean any
day other than a day on which banking institutions in The City of New York are
authorized or required by law to close.
Dividends on the LLC Preferred Securities of any series will be cumulative
(whether or not declared and whether or not there are profits, surplus or other
funds legally available for the payment of dividends). Dividends on the LLC
Preferred Securities must be declared by SCI Finance, by action of the Manager,
in any calendar year or portion thereof to the extent that the Manager
reasonably anticipates that at the time of payment SCI Finance will have, and
must be paid by SCI Finance to the extent that at the time of proposed payment
SCI Finance has, (x) funds legally available for the payment of such dividends
and (y) cash on hand sufficient to permit such payments. It is anticipated that
SCI Finance's earnings will result almost exclusively from payments under the
Loans of proceeds from the sale of the LLC Preferred Securities and the issuance
of LLC Common Shares (as described under "-- Description of the Loans"). SCI
Limited will have the right to extend interest payments on the Loans for up to
60 monthly interest payment periods over the term of the Loans. Interest shall
accrue on and be payable in respect of any dividend payment on the LLC Preferred
Securities which is in arrears at the interest rate payable in respect of the
Loans to the extent permitted by applicable law.
CERTAIN RESTRICTIONS ON SCI FINANCE
If dividends have not been paid in full on the LLC Preferred Securities, SCI
Finance may not:
(i) pay, or declare and set aside for payment, any dividends on any other LLC
Preferred Shares ranking pari passu with the LLC Preferred Securities as regards
participation in profits of SCI Finance ("SCI Finance Dividend Parity Shares"),
unless the amount of any dividends declared on any SCI Finance Dividend Parity
Shares is paid on SCI Finance Dividend Parity Shares and the LLC Preferred
Securities on a pro rata basis on the date such dividends are paid on such SCI
Finance Dividend Parity Shares, so that
(x)(a) the aggregate amount of dividends paid on the LLC Preferred
Securities bears the same ratio to (b) the aggregate amount of dividends
paid on such SCI Finance Dividend Parity Shares as
(y)(a) the aggregate amount of all accumulated arrears of unpaid dividends
in respect of the LLC Preferred Securities bears to (b) the aggregate
amount of all accumulated arrears of unpaid dividends in respect of such
SCI Finance Dividend Parity Shares;
(ii) pay, or declare and set aside for payment, any dividends on any interests
in SCI Finance ranking junior to the LLC Preferred Securities as to dividends
("SCI Finance Dividend Junior Shares"); or
(iii) call for redemption or redeem, purchase or otherwise acquire any SCI
Finance Dividend Parity Shares or SCI Finance Dividend Junior Shares or any LLC
Preferred Securities other than (x) the redemption of all outstanding LLC
Preferred Securities at the Redemption Price (as defined below), (y) pursuant to
a pro rata redemption of the LLC Preferred Securities at the Redemption Price or
(z) pursuant to a purchase or exchange offer made on the same terms to all
holders of the LLC Preferred Securities, it being understood that this provision
shall not limit the rights of holders of LLC Preferred Securities to exercise
their conversion rights
until, in each case, such time as all accumulated arrears of unpaid dividends
(whether or not declared) on the LLC Preferred Securities shall have been paid
in full for all dividend periods terminating on or prior to, in the case of
clauses (i) and (ii), such payment, and in the case of clause (iii), the date of
such call, redemption, purchase or acquisition. As of the date of this
Prospectus, SCI Finance has no SCI Finance Dividend Parity Shares outstanding
and has no plans to issue such shares.
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MANDATORY REDEMPTION
The proceeds from any prepayment or repayment of principal on the Loans to SCI
Limited of proceeds from the issuance and sale of LLC Preferred Securities and
LLC Common Shares must be applied to redeem the LLC Preferred Securities at the
Redemption Price upon not less than 30 nor more than 60 days' notice in writing
by SCI Finance to the holders of the LLC Preferred Securities except at final
maturity of the Loans, in which case the redemption of LLC Preferred Securities
will occur as soon as practicable thereafter.
OPTIONAL REDEMPTION
The LLC Preferred Securities are redeemable, at the option of SCI Finance
subject to the prior consent of the Manager, in whole or in part from time to
time, on or after the date and subject to the terms set forth in the
accompanying Prospectus Supplement, upon not less than 30 nor more than 60 days'
notice in writing by SCI Finance to the holders of LLC Preferred Securities, at
the prices set forth in the accompanying Prospectus Supplement (the "Redemption
Price"), in each case plus accrued and unpaid dividends (whether or not
declared) to the date fixed for redemption.
In the event that fewer than all the outstanding LLC Preferred Securities are to
be redeemed, the LLC Preferred Securities to be redeemed will be selected as
described under "-- Book-Entry Issuance; the Depository Trust Company" below,
pro rata as nearly as practicable or by lot, or by such other method as the
Paying and Conversion Agent may determine to be fair and appropriate. In the
event that any monthly dividend payable on the LLC Preferred Securities is in
arrears, LLC Preferred Securities may not be redeemed unless by conversion of
LLC Preferred Securities into shares of SCI Common Stock, and neither SCI nor
SCI Finance nor any other subsidiary of SCI may purchase or acquire any of such
shares otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of record of the LLC Preferred Securities.
If SCI Finance gives a notice of redemption in respect of LLC Preferred
Securities, then, by 12:00 noon, New York time, on the redemption date, SCI
Finance will irrevocably deposit with the Paying and Conversion Agent or the
Depository Trust Company ("DTC"), as the case may be, funds sufficient to pay
the Redemption Price and will give the Paying and Conversion Agent or DTC, as
the case may be, irrevocable instructions and authority to pay the Redemption
Price to the holders thereof. If notice of redemption shall have been given and
funds deposited as required, then upon the date of such deposit, all rights of
holders of LLC Preferred Securities so called for redemption will cease, except
the right of the holders of such shares to receive the Redemption Price, but
without interest, and such shares will cease to be outstanding. In the event
that any date on which any payment in respect of the redemption of LLC Preferred
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. In the event that payment of the Redemption
Price in respect of LLC Preferred Securities is improperly withheld or refused
and not paid either by SCI Finance or by SCI pursuant to the Guarantee (as
defined below), dividends on such shares will continue to accrue, at the then-
applicable rate, from the original redemption date to the date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
Subject to the foregoing, SCI or its subsidiaries may at any time and from time
to time purchase outstanding LLC Preferred Securities by tender, in the open
market or by private agreement.
TAX EVENT REDEMPTION
If a Tax Event (as defined below) shall occur and be continuing, the LLC
Preferred Securities will be subject to redemption, at the option of SCI
Finance, in whole but not in part, upon not less than 30 nor more than 60 days'
notice in writing by the Company to the holders of such LLC Preferred
Securities, such notice to be given within 90 days following the occurrence of
such Tax Event at a redemption price or prices set forth in the accompanying
Prospectus Supplement.
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"Tax Event" means, with respect to any LLC Preferred Securities, that SCI shall
have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters to the effect that, on or after the date of the
accompanying Prospectus Supplement relating to such LLC Preferred Securities, as
a result of (a) any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) any amendment
to, or change in, an interpretation or application of any such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any official interpretation
or pronouncement that provides for a position with respect to such laws or
regulations that differs from the generally accepted position or (d) any action
taken by any governmental agency or regulatory authority, which amendment or
change is enacted, promulgated, issued or effective or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after the date of such accompanying Prospectus Supplement, there is more than
an insubstantial risk that (i) SCI Finance is subject to federal income tax with
respect to interest accrued or received on the Loans or (ii) SCI Finance is
subject to liability for more than a de minimis amount of taxes, duties or other
governmental charges.
LIQUIDATION DISTRIBUTION
In the event of any voluntary or involuntary liquidation, dissolution or winding
up of SCI Finance, the holders of LLC Preferred Securities at the time
outstanding will be entitled to receive out of the assets of SCI Finance legally
available for distribution to shareholders, before any distribution of assets is
made to holders of the LLC Common Shares or any other class of interests in SCI
Finance ranking junior to the LLC Preferred Securities as regards participation
in assets of SCI Finance, but together with the holders of every other series of
LLC Preferred Shares outstanding, if any, ranking pari passu with the LLC
Preferred Securities as regards participation in the assets of SCI Finance ("SCI
Finance Liquidation Parity Shares"), an amount equal, in the case of the holders
of the LLC Preferred Securities, to the aggregate of the liquidation preference
per LLC Preferred Security set forth in the accompanying Prospectus Supplement
and all accumulated and unpaid dividends (whether or not declared) to the date
of payment (the "Liquidation Distribution"). If, upon any such liquidation, the
Liquidation Distribution can be paid only in part because SCI Finance has
insufficient assets available to pay in full the aggregate Liquidation
Distribution and the aggregate maximum liquidation distributions on SCI Finance
Liquidation Parity Shares, then the amounts payable by SCI Finance on the LLC
Preferred Securities and on such SCI Finance Liquidation Parity Shares shall be
paid on a pro rata basis, so that
(i)(x) the aggregate amount paid in respect of the Liquidation Distribution
bears the same ratio to (y) the aggregate amount paid as liquidation
distributions (including accrued and unpaid dividends) on SCI Finance
Liquidation Parity Shares as
(ii)(x) the aggregate Liquidation Distribution bears to (y) the aggregate
liquidation preference (including accrued and unpaid dividends) on SCI Finance
Liquidation Parity Shares.
Pursuant to the LLC Regulations, SCI Finance will be considered to have
commenced voluntary wind-up and dissolution automatically (i) when the period
fixed for the duration of SCI Finance expires, (ii) if the holders of the LLC
Common Shares pass a resolution requiring SCI Finance to be wound up and
dissolved, (iii) upon the bankruptcy, resignation, withdrawal, expulsion,
termination, cessation or dissolution of SCI or the Manager (if other than SCI),
(iv) upon the happening of any event that would cause a holder of LLC Common
Shares to cease to be a holder thereof or (v) if SCI transfers any LLC Common
Shares or if all of the LLC Common Shares are redeemed, repurchased or cancelled
by SCI Finance.
VOTING RIGHTS
Except as provided below and under "-- Description of the
Guarantee -- Amendments and Assignments" and "-- Description of the
Loans -- Miscellaneous," the holders of the LLC Preferred Securities will have
no voting rights.
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If (i) SCI Finance fails to pay dividends in full on the LLC Preferred
Securities (whether or not there are funds legally available therefor) for more
than 60 consecutive monthly dividend periods, (ii) an Event of Default (as
defined in the Loan Agreement relating to the Loans) occurs and is continuing on
the Loans or (iii) SCI is in default under any of its payment or other
obligations under the Payment, Guarantee and Conversion Agreement entered into
by the Company for the benefit of each holder of LLC Securities (the
"Guarantee"), then the holders of outstanding LLC Preferred Securities, together
with the holders of any other series of LLC Preferred Shares having the right to
vote for the appointment of a trustee in such event, acting as a single class,
will be entitled, by resolution passed by the holders of a majority in
liquidation preference (plus all accrued and unpaid dividends per share) of such
shares present in person or represented by proxy at a meeting of such holders
convened for such purpose (or by written consent), to appoint and authorize a
trustee to enforce SCI Finance's rights as a creditor under the Loans against
SCI Limited and SCI (including the acceleration of principal and accrued
interest on the Loans), enforce the obligations undertaken by SCI under the
Guarantee and the Liability Assumption Agreement (as defined below) and declare
and pay dividends on the LLC Preferred Securities. For purposes of determining
whether SCI Finance has failed to pay dividends in full for more than 60
consecutive monthly dividend periods, dividends shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full cumulative
dividends have been or contemporaneously are declared and paid with respect to
all monthly dividend periods terminating on or prior to the date of payment of
such full cumulative dividends. Not later than 45 days after such entitlement
arises, the Manager will convene a meeting for the above purposes. If the
Manager fails to convene such meeting within such 45-day period, the holders of
10% in liquidation preference (plus all accrued and unpaid dividends per share)
of the outstanding LLC Preferred Securities and such other LLC Preferred Shares
will be entitled to convene such meeting. The provisions of the LLC Regulations
regarding the convening and conduct of meetings will apply with respect to any
such meeting. Any trustee so appointed shall vacate office immediately with
respect to the LLC Preferred Securities, if SCI Finance (or SCI pursuant to the
Guarantee) shall have paid in full all accrued and unpaid dividends on the LLC
Preferred Securities or such default or breach by SCI shall have been cured.
If any resolution is presented to the members of SCI Finance providing for, or
the Manager otherwise proposes to effect (it being understood that the automatic
dissolution and liquidation events described in clauses (iii), (iv) and (v)
under "-- Liquidation Distribution" above will not be deemed to be a proposal by
the Manager, and are not subject to the approval procedures described in this
paragraph), (x) any amendment of the LLC Articles, the LLC Regulations, the
Declaration or other action that adversely varies or abrogates the rights,
preferences or privileges of the LLC Preferred Securities (including, without
limitation, the authorization or issuance of any interests in SCI Finance
ranking, as to participation in the profits or assets of SCI Finance, senior to
the LLC Preferred Securities, or the issuance of any debt by SCI Finance), (y)
the liquidation, dissolution or winding up of SCI Finance or (z) the
modification of the provisions of the LLC Articles and the LLC Regulations which
absolutely prohibit transfers of LLC Common Shares, then the holders of
outstanding LLC Preferred Shares of all series (and, in the case of a resolution
described in clause (x) above which would equally adversely affect the rights,
preferences or privileges of any SCI Finance Dividend Parity Shares or any SCI
Finance Liquidation Parity Shares, such SCI Finance Dividend Parity Shares or
such SCI Finance Liquidation Parity Shares, as the case may be, or, in the case
of any resolution described in clause (y) or (z) above, all SCI Finance
Liquidation Parity Shares) will be entitled to vote together as a class on such
resolution or action of the Manager (but not on any other resolution or action),
and such resolution or action shall not be effective except with the approval of
the holders of 66 2/3% in liquidation preference (plus all accrued and unpaid
dividends) of such outstanding shares; provided, however, that no such approval
or ratification shall be required if the liquidation, dissolution and winding up
of SCI Finance is proposed or initiated upon the initiation of proceedings, or
after proceedings have been initiated, for the liquidation, dissolution or
winding up of SCI or the Manager (if other than SCI).
No vote or consent of the holders of the LLC Preferred Securities will be
required for SCI Finance to redeem and cancel LLC Preferred Securities in
accordance with the LLC Regulations and the Declaration.
The rights attached to the LLC Preferred Securities will be deemed not to be
varied by the creation or issue of, and no vote will be required for the
creation of, any further series of LLC Preferred Shares or any other interests
in SCI Finance ranking as regards participation in the profits or assets of SCI
Finance pari passu with or junior to the LLC Preferred Securities.
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Any required approval of holders of LLC Preferred Securities may be given at a
meeting of such holders convened for such purpose, at a general meeting of
shareholders of SCI Finance or pursuant to written consent. SCI Finance will
cause a notice of any meeting at which holders of the LLC Preferred Securities
are entitled to vote, or of any matter upon which action by written consent of
such holders is to be taken, to be mailed to each holder of record of the LLC
Preferred Securities. Each such notice will include a statement setting forth
(i) the date of such meeting or the date by which such action is to be taken,
(ii) a description of any resolution proposed for adoption at such meeting on
which such holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies or written
consents.
Notwithstanding that holders of LLC Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the LLC Preferred
Securities and such other LLC Preferred Shares entitled to vote or consent with
such LLC Preferred Securities as a single class outstanding at such time that
are owned by SCI or any entity owned 50% or more by SCI, either directly or
indirectly, shall not be entitled to vote or consent and shall, for the purposes
of such vote or consent, be treated as if they were not outstanding.
CONVERSION RIGHTS
Except as otherwise provided in the Prospectus Supplement, the holders of the
LLC Preferred Securities will have the conversion rights as set forth below:
Each LLC Preferred Security will be convertible at any time at the option of the
holder thereof into such number of whole shares of SCI Common Stock as is equal
to the per share liquidation preference of the LLC Preferred Securities
surrendered for conversion divided by the initial conversion price per share of
SCI Common Stock set forth in the accompanying Prospectus Supplement, subject to
adjustment as described below. LLC Preferred Securities called for redemption
will not be convertible after the close of business on the second Business Day
preceding the date fixed for redemption, unless SCI Finance defaults in payment
of the applicable Redemption Price or SCI defaults in its obligation to deliver
SCI Common Stock in exchange for shares of LLC Preferred Securities previously
surrendered for conversion. No fractional shares of SCI Common Stock will be
issued as a result of conversion, but in lieu thereof, in the sole discretion of
SCI, either (i) such fractional interest will be rounded upon the next whole
share or (ii) an appropriate amount will be paid in cash by SCI.
The initial conversion price is subject to adjustment (under formulae set forth
in the Declaration) in certain events, including: (i) the issuance of SCI Common
Stock as a dividend or distribution on SCI Common Stock; (ii) certain
subdivisions and combinations of the SCI Common Stock; (iii) the issuance to all
holders of SCI Common Stock of certain rights or warrants to purchase SCI Common
Stock; (iv) the distribution to all holders of SCI Common Stock of (A) shares of
capital stock of SCI (other than SCI Common Stock), (B) evidences of
indebtedness of SCI and/or (C) other assets (including securities, but excluding
any rights or warrants referred to in clause (iii) above, any dividends or
distributions in connection with the liquidation, dissolution or winding-up of
SCI, any dividends payable solely in cash that may from time to time be fixed by
the Board of Directors of SCI and any dividends or distributions referred to in
clause (i) above); (v) distributions consisting of cash, excluding (a) any cash
dividends on the SCI Common Stock to the extent that the aggregate cash
dividends per share of SCI Common Stock in any consecutive 12-month period do
not exceed the greater of (x) the amount per share of SCI Common Stock of the
cash dividends paid on the SCI Common Stock in the immediately preceding
12-month period, to the extent that such dividends for the immediately preceding
12-month period did not require an adjustment of the conversion price pursuant
to this clause (v) (as adjusted to reflect subdivisions or combinations of the
SCI Common Stock), and (y) 15% of the average of the daily Closing Price (as
defined in the Declaration) of the SCI Common Stock for the ten consecutive
Trading Days (as defined in the Declaration) immediately prior to the date of
declaration of such dividend, and (b) any dividend or distribution in connection
with the liquidation, dissolution or winding up of SCI or a redemption of any
rights issued under a rights agreement (provided, however that no adjustment
shall be made pursuant to this clause (v) if such distribution would otherwise
constitute a Fundamental Change (as defined below) and be reflected in a
resulting adjustment described below); and (vi) payment in respect of a tender
or exchange offer by SCI or any subsidiary of SCI for SCI Common Stock to the
extent that the cash and value of any other consideration included in such
payment per share of SCI Common Stock exceeds (by more than 10%, with any
smaller excess being disregarded in computing the adjustment provided hereby)
the first
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reported sale price per share of SCI Common Stock on the Trading Day next
succeeding the Expiration Time (as defined in the Declaration) for such tender
or exchange offer. If any adjustment is required to be made as set forth in
clause (v) above as a result of a distribution which is a dividend described in
subclause (a) of clause (v) above, such adjustment would be based upon the
amount by which such distribution exceeds the amount of the dividend permitted
to be excluded pursuant to such subclause (a) of clause (v). If an adjustment is
required to be made as set forth in clause (v) above as a result of a
distribution which is not such a dividend, such adjustment would be based upon
the full amount of such distribution. If an adjustment is required to be made as
set forth in clause (vi) above, such adjustment would be calculated based upon
the amount by which the aggregate consideration paid for SCI Common Stock
acquired in the tender or exchange offer exceeds the value of such shares based
on the first reported sale price of the SCI Common Stock on the Trading Day next
succeeding the Expiration Time. In lieu of making such a conversion price
adjustment in the case of certain dividends or distributions, SCI may provide
that upon the conversion of LLC Preferred Securities the holder converting such
LLC Preferred Securities will receive, in addition to the shares of SCI Common
Stock of which such holder is entitled, the cash, securities or other property
which such holder would have received if such holder had, immediately prior to
the record date for such dividend or distribution, converted its LLC Preferred
Securities into SCI Common Stock.
SCI Finance from time to time may, to the extent permitted by law and with the
consent of the Manager, reduce the conversion price by any amount for any period
of at least 20 Business Days, in which case SCI Finance shall give at least 15
days' notice of such reduction to the holders of the LLC Preferred Securities.
SCI Finance may, at its option and with the consent of the Manager, make such
reduction in the conversion price, in addition to those set forth above, as SCI
Finance deems advisable to avoid or diminish any income tax to holders of SCI
Common Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for tax purposes or for any
other reasons.
In the event that SCI shall be a party to any transaction or series of
transactions constituting a Fundamental Change, including, without limitation,
(i) any recapitalization or reclassification of the SCI Common Stock (other than
a change in par value or as a result of a subdivision or combination of the SCI
Common Stock); (ii) any consolidation or merger of SCI with or into another
corporation as a result of which holders of SCI Common Stock shall be entitled
to receive securities or other property or assets (including cash) with respect
to or in exchange for the SCI Common Stock (other than a merger which does not
result in a reclassification, conversion, exchange or cancellation of
outstanding shares of SCI Common Stock); (iii) any sale or transfer of all or
substantially all of the assets of SCI; or (iv) any compulsory share exchange,
pursuant to any of which holders of SCI Common Stock shall be entitled to
receive other securities, cash or other property, then appropriate provision
shall be made so that the holder of each LLC Preferred Security then outstanding
shall have the right thereafter to convert such security only into (x) if any
such transaction constitutes a Non-Stock Fundamental Change (as defined below),
the kind and amount of the securities, cash or other property that would have
been receivable upon such recapitalization, reclassification, consolidation,
merger, sale, transfer or share exchange by a holder of the number of shares of
SCI Common Stock issuable upon conversion of such LLC Preferred Security
immediately prior to such recapitalization, reclassification, consolidation,
merger, sale, transfer or share exchange, after giving effect to any adjustment
in the conversion price in accordance with clause (i) of the following
paragraph, and (y) if any such transaction constitutes a Common Stock
Fundamental Change (as defined below), common stock of the kind received by
holders of SCI Common Stock as a result of such Common Stock Fundamental Change
in an amount determined in accordance with clause (ii) of the following
paragraph. The company formed by such consolidation or resulting from such
merger or which acquires such assets or which acquires the SCI Common Stock, as
the case may be, shall make provisions in its certificate or articles of
incorporation or other constituent document to establish such right. Such
certificate or articles of incorporation or other constituent document shall
provide for adjustments which, for events subsequent to the effective date of
such certificate or articles of incorporation or other constituent document,
shall be as nearly equivalent as practical to the relevant adjustments provided
for in the preceding paragraphs and in this paragraph.
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Notwithstanding any other provision in the preceding paragraphs, if any
Fundamental Change (as defined below) occurs, the conversion price in effect
will be adjusted immediately after that Fundamental Change as follows:
(i) in the case of a Non-Stock Fundamental Change, the conversion price per
share of SCI Common Stock immediately following such Non-Stock Fundamental
Change will be the lower of (A) the conversion price in effect immediately prior
to such Non-Stock Fundamental Change, but after giving effect to any other prior
adjustments effected pursuant to the preceding paragraphs, and (B) the result
obtained by multiplying the greater of the Applicable Price (as defined below)
or the then applicable Reference Market Price (as defined below) by a fraction
of which the numerator will be the liquidation preference of the LLC Preference
Securities as set forth in the applicable Prospectus Supplement and the
denominator of which will be the then current Redemption Price per LLC Preferred
Security (or, if such Redemption Price is to be determined prior to the date on
which the LLC Preferred Securities may first be called for redemption, the
prices set forth in the Prospectus Settlement); and
(ii) in the case of a Common Stock Fundamental Change, the conversion price per
share of SCI Common Stock immediately following the Common Stock Fundamental
Change will be the conversion price in effect immediately prior to the Common
Stock Fundamental Change, but after giving effect to any other prior adjustments
effected pursuant to the preceding paragraphs, multiplied by a fraction, the
numerator of which is the Purchaser Stock Price (as defined below) and the
denominator of which is the Applicable Price; provided, however, that in the
event of a Common Stock Fundamental Change in which (A) 100% of the value of the
consideration received by a holder of SCI Common Stock is common stock of the
successor, acquiror or other third party (and cash, if any, paid with respect to
any fractional interests in that common stock resulting from the Common Stock
Fundamental Change) and (B) all of the SCI Common Stock shall have been
exchanged for, converted into, or acquired for, common stock of the successor,
acquiror or other third party, the conversion price per share of SCI Common
Stock immediately following the Common Stock Fundamental Change shall be the
conversion price in effect immediately prior to the Common Stock Fundamental
Change multiplied by a fraction, the numerator of which is one (1) and the
denominator of which is the number of shares of common stock of the successor,
acquiror, or other third party received by a holder of one share of SCI Common
Stock as a result of the Common Stock Fundamental Change.
Depending upon whether the Fundamental Change is a Non-Stock Fundamental Change
or Common Stock Fundamental Change, a holder may receive significantly different
consideration upon conversion. In the event of a Non-Stock Fundamental Change,
the holder has the right to convert LLC Preferred Securities into the kind and
amount of shares of stock and other securities or property or assets (including
cash), except as otherwise provided above, as is determined by the number of
shares of SCI Common Stock receivable upon conversion at the conversion price as
adjusted in accordance with clause (i) of the preceding paragraph. However, in
the event of a Common Stock Fundamental Change in which less than 100% of the
value of the consideration received by a holder of SCI Common Stock is common
stock of the successor, acquiror or other third party, a holder of a LLC
Preferred Security who converts such share following the Common Stock
Fundamental Change will receive consideration in the form of such common stock
only, whereas a holder who converted such share prior to the Common Stock
Fundamental Change will have received consideration in the form of such common
stock as well as any other securities or assets (which may include cash)
issuable upon conversion of such LLC Preferred Security immediately prior to
such Common Stock Fundamental Change.
The term "Applicable Price" means (i) in the event of a Non-Stock Fundamental
Change in which the holders of SCI Common Stock receive only cash, the amount of
cash receivable by a holder of one share of SCI Common Stock and (ii) in the
event of any other Non-Stock Fundamental Change or any Common Stock Fundamental
Change, the average of the reported last sale price for one share of the SCI
Common Stock (determined as provided in the Declaration) during the ten Trading
Days immediately prior to the record date for the determination of the holders
of SCI Common Stock entitled to receive cash, securities, property or other
assets in connection with such Non-Stock Fundamental Change or Common Stock
Fundamental Change or, if there is no such record date, prior to the date on
which the holders of the SCI Common Stock will have the right to receive such
cash, securities, property or other assets.
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The term "Common Stock Fundamental Change" means any Fundamental Change in which
more than 50% of the value (as determined in good faith by SCI's Board of
Directors) of the consideration received by holders of SCI Common Stock pursuant
to such transaction consists of common stock that, for the ten consecutive
Trading Days immediately prior to such Fundamental Change, has been admitted for
listing or admitted for listing subject to notice of issuance on a national
securities exchange or quoted on the Nasdaq National Market; provided, however,
that a Fundamental Change will not be a Common Stock Fundamental Change unless
either (i) SCI continues to exist after the occurrence of such Fundamental
Change and the outstanding LLC Preferred Securities continue to exist as
outstanding LLC Preferred Securities, or (ii) the outstanding LLC Preferred
Securities continue to exist as LLC Preferred Securities and are convertible
into common stock of the successor to SCI.
The term "Fundamental Change" means the occurrence of any transaction or event
or series of transactions or events pursuant to which all or substantially all
of the SCI Common Stock is exchanged for, converted into, acquired for or
constitutes solely the right to receive cash, securities, property or other
assets (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise); provided, however, in the case of a plan involving more than one
such transaction or event, for purposes of adjustment of the conversion price,
such Fundamental Change will be deemed to have occurred when substantially all
of the SCI Common Stock received in such transaction has been exchanged for,
converted into, or acquired for or constitutes solely the right to receive cash,
securities, property or other assets but the adjustment shall be based upon the
consideration that the holders of SCI Common Stock received in the transaction
or event as a result of which more than 50% of the SCI Common Stock shall have
been exchanged for, converted into, or acquired for, or shall constitute solely
the right to receive such cash, securities, properties or other assets; and
provided further, that such term does not include (i) any transaction or event
in which SCI and/or any of its subsidiaries are the issuers of all the cash,
securities, property or other assets exchanged, acquired or otherwise issued in
the transaction or event, or (ii) any transaction or event in which the holders
of SCI Common Stock receive securities of an issuer other than SCI if,
immediately following such transaction or event, holders of SCI Common Stock
hold a majority of the securities having the power to vote normally in the
election of directors of such other issuer outstanding immediately following
such transaction or other event.
The term "Non-Stock Fundamental Change" means any Fundamental Change other than
a Common Stock Fundamental Change.
The term "Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change, the average of the reported last sale prices for one share
of the common stock received by holders of SCI Common Stock in such Common Stock
Fundamental Change during the ten Trading Days immediately prior to the record
date for the determination of the holders of SCI Common Stock entitled to
receive such common stock or, if there is no such record date, prior to the date
upon which the holders of SCI Common Stock shall have the right to receive the
common stock.
The term "Reference Market Price" will initially mean the price set forth in the
accompanying Prospectus Supplement (which unless otherwise specified in the
accompanying Prospectus Supplement will be 66 2/3% of the last reported sale
price for SCI Common Stock on the New York Stock Exchange on the date of such
Prospectus Supplement) and, in the event of any adjustment to the conversion
price other than as a result of a Fundamental Change, the Reference Market Price
will also be adjusted so that the ratio of the Reference Market Price to the
conversion price after giving effect to any adjustment will always be the same
as the ratio of the initial Reference Market Price to the initial conversion
price of the LLC Preferred Securities.
No adjustment in the conversion price will be required unless the adjustment
would require a change of at least 1% in the conversion price then in effect;
provided, however, that any adjustment that would otherwise be required to be
made shall be carried forward and taken into account in any subsequent
adjustment.
The holders of LLC Preferred Securities at the close of the business on a
dividend payment record date will be entitled to receive the dividend payment on
those shares on the corresponding dividend payment date notwithstanding the
subsequent conversion thereof or SCI Finance's default in payment of the
dividend due on that dividend payment date. A holder of LLC Preferred Securities
on a dividend payment record date who (or
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whose transferee) tenders any shares for conversion on a dividend payment date
will receive the dividend payable by SCI Finance on LLC Preferred Securities on
that date.
BOOK-ENTRY ISSUANCE; THE DEPOSITORY TRUST COMPANY
DTC will act only as securities depository for the LLC Preferred Securities. The
LLC Preferred Securities will be issued as fully-registered in the name of Cede
& Co. (DTC's partnership nominee). One or more fully-registered global LLC
Preferred Security certificates will be issued, representing in the aggregate
the total number of LLC Preferred Securities, and will be deposited with DTC.
DTC may act as securities depository for any of the other Securities; if it does
so, a description of the applicable book-entry procedures will be set forth in
the applicable Prospectus Supplement.
DTC is a limited-purpose trust company organized under the New York Banking Law,
a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations ("Direct Participants").
DTC is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks, and trust companies that clear
through or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The Rules applicable to DTC
and its Participants are on file with the Commission.
Purchases of LLC Preferred Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the LLC Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
each LLC Preferred Security ("Beneficial Owner") is in turn to be recorded on
the Direct and Indirect Participants' records. Beneficial Owners will not
receive written confirmations from DTC of their purchase, but Beneficial Owners
are expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from the Direct
or Indirect Participant through which the Beneficial Owner purchased LLC
Preferred Securities. Transfers of ownership interests in the LLC Preferred
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in LLC Preferred Securities,
except in the event that use of the book-entry system for the LLC Preferred
Securities is discontinued. The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such laws may impair the ability to transfer beneficial interests in a
global LLC Preferred Security certificate.
DTC has no knowledge of the actual Beneficial Owners of the LLC Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such LLC Preferred Securities are credited, which may or may
not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices will be sent to Cede & Co. If less than all of the LLC
Preferred Securities are being redeemed, DTC's practice is to determine by lot
the amount of the interest of each Direct Participant in such series to be
redeemed.
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Although voting with respect to the LLC Preferred Securities is limited, in
those cases where a vote is required, neither DTC nor Cede & Co. will consent or
vote with respect to LLC Preferred Securities. Under its usual procedures, DTC
mails an Omnibus Proxy to SCI Finance as soon as possible after the record date.
The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts the LLC Preferred Securities are credited
on the record date (identified in a listing attached to the Omnibus Proxy).
Dividend payments on the LLC Preferred Securities will be made to DTC. DTC's
practice is to credit Direct Participants' accounts on the relevant payment date
in accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC, SCI Finance or SCI, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
dividends to DTC is the responsibility of SCI Finance, disbursement of such
payments to Direct Participants will be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owner will be the responsibility
of Direct and Indirect Participants.
DTC has advised SCI and SCI Finance that it will take any action permitted to be
taken by a holder of LLC Preferred Securities (including, without limitation,
the presentation of a LLC Preferred Security certificate for conversion) only at
the direction of one or more Participants to whose account with DTC interest in
such shares represented by a global certificate are credited and only in respect
of such number of LLC Preferred Securities represented by a global certificate
as to which such Participant or Participants has or have given such direction.
DTC may discontinue providing its services as securities depository with respect
to the LLC Preferred Securities at any time by giving reasonable notice to SCI
Finance. Under such circumstances, in the event that a successor securities
depository is not obtained, LLC Preferred Securities certificates are required
to be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system has
been obtained from sources that SCI Finance believes to be reliable, but neither
SCI Finance, SCI nor any underwriter or agent takes responsibility for the
accuracy thereof.
MISCELLANEOUS
The Transfer Agent, Registrant and Paying and Conversion Agent for the LLC
Preferred Securities will be Society National Bank.
Registration of transfers of LLC Preferred Securities will be effected without
charge by the Transfer Agent, but upon payment (with the giving of such
indemnity as the Transfer Agent may require) in respect of any tax or other
governmental charges which may be imposed in relation to it.
The Transfer Agent will not be required to register or cause to be registered
the transfer of LLC Preferred Securities after such shares have been called for
redemption.
SCI Finance is not subject to any mandatory redemption or sinking fund
provisions with respect to the LLC Preferred Securities. Holders of LLC
Preferred Securities have no preemptive rights.
SCI and SCI Finance will enter into an agreement (the "Liability Assumption
Agreement") pursuant to which SCI, in its capacity as Manager and otherwise,
agrees to guarantee the payment of any liabilities incurred by SCI Finance
(other than obligations to holders of LLC Preferred Securities). The Liability
Assumption Agreement expressly provides that such agreement is for the benefit
of, and is enforceable by, third parties to whom SCI Finance owes such
obligations.
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee which will
be executed and delivered by SCI for the benefit of the holders from time to
time of the LLC Preferred Securities.
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General
SCI will irrevocably and unconditionally agree, to the extent set forth herein,
to pay in full, to the holders of LLC Preferred Shares of any series which may
be issued by SCI Finance, including the LLC Preferred Securities, the Guarantee
Payments (as defined below) (except to the extent paid by SCI Finance), as and
when due, regardless of any defense, right of set-off or counterclaim which SCI
Finance may have or assert. The following payments constitute the "Guarantee
Payments" for the LLC Preferred Shares: (i) any accumulated and unpaid dividends
which have been theretofore declared on the LLC Preferred Shares of any series
out of monies legally available therefor, (ii) the redemption price (including
all accumulated and unpaid dividends) to the date of payment payable with
respect to LLC Preferred Shares of any series called for redemption by SCI
Finance out of monies legally available therefor, and (iii) upon a liquidation
of SCI Finance, the lesser of (a) the aggregate liquidation preference per LLC
Preferred Share and all accumulated and unpaid dividends (whether or not
declared) to the date of payment and (b) the amount of remaining assets of SCI
Finance legally available to holders of LLC Preferred Shares. The Guarantee also
requires SCI to deliver upon conversion of any LLC Preferred Shares all shares
of SCI Common Stock or other property into which such LLC Preferred Shares are
convertible. SCI's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amount by SCI to the holders of LLC Preferred
Shares of any series or by causing SCI Finance to pay such amounts to such
holders.
Certain Covenants of SCI
In the Guarantee, SCI will covenant that, so long as any LLC Preferred Shares of
any series remain outstanding, SCI shall not declare or pay any dividend on, and
SCI shall not, and SCI shall not permit any of its majority-owned subsidiaries
to, redeem, purchase, acquire or make a liquidation payment with respect to, any
of SCI's capital stock (other than the redemption by the Company of Series C
Junior Participating Preferred Stock Purchase Rights in accordance with the
Rights Agreement relating thereto and any reacquisition by the Company of any of
its stock issued in any acquisition as a result of a purchase price adjustment
or settlement of breach of warranties in connection with such acquisition) or
make any guarantee payments with respect to the foregoing (other than payments
under the Guarantee), if at such time (i) there shall have occurred any event
that constitutes an Event of Default under the Loan Agreement, (ii) SCI shall be
in default with respect to its payment or other obligations under the Guarantee
or the Manager shall be in default under its obligations under the Liability
Assumption Agreement or (iii) there shall exist any nonpayment of interest under
the Loans, including during any valid extension of the interest payment periods.
In the Guarantee, SCI will also covenant that, so long as any LLC Preferred
Shares of any series remaining outstanding, it will (i) maintain direct 100%
ownership of the LLC Common Shares and any other interests in SCI Finance (other
than the LLC Preferred Shares); (ii) cause more than 20% of the total value
(initially measured by shareholders' equity determined under generally accepted
accounting principles) of SCI Finance and, subject to the preferential rights of
the holders of LLC Preferred Securities as to dividends and liquidation
distributions, more than 20% of all interests in the capital, income, gain,
loss, deduction and credit of SCI Finance to be represented by LLC Common
Shares; (iii) not voluntarily dissolve, wind-up or liquidate SCI Finance; (iv)
remain the Manager of SCI Finance and timely perform all of its duties as
Manager of SCI Finance (including the duty to declare and pay dividends on the
LLC Preferred Shares to the extent set forth in the LLC Articles) and (v) use
reasonable efforts to cause SCI Finance to remain a limited liability company
under the laws of the State of Texas (provided however that SCI Finance may
reorganize under the laws of another jurisdiction provided that SCI Finance has
received an opinion from nationally recognized legal counsel that such
reorganization will not have an adverse effect, including, without limitation,
an adverse tax effect, on the holders of the LLC Preferred Securities) and use
reasonable efforts to cause SCI Finance to continue to be treated as a
partnership for United States Federal income tax purposes.
Amendments and Assignments
Except with respect to any changes which do not adversely affect the rights of
holders of LLC Preferred Shares (in which case no vote will be required), the
Guarantee may be changed only with the prior approval of the holders of not less
than 66 2/3% in liquidation preference (plus all accrued and unpaid dividends
per share) of
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each series of LLC Preferred Shares then outstanding. The manner of obtaining
any such approval of holders of LLC Preferred Shares will be as set forth under
"Description of the LLC Preferred Securities -- Voting Rights." All guarantees
and agreements contained in the Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of SCI and shall inure to the benefit of
all LLC Preferred Shares then outstanding.
Termination of the Guarantee
The Guarantee will terminate and be of no further force and effect as to a
series of LLC Preferred Shares upon full payment of the redemption price
(including all accrued and unpaid dividends), or the retirement or cancellation
of all of such series of LLC Preferred Shares, or delivery of all shares of SCI
Common Stock or other property required to be delivered upon conversion, with
respect to all outstanding LLC Preferred Shares of that series, or shall
terminate completely upon full payment of the amounts payable upon liquidation
of SCI Finance including the delivery of all shares of SCI Common Stock or other
property required to be delivered upon conversion of any LLC Preferred Shares.
The Guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of LLC Preferred Shares of such series must
restore payment of any sums, SCI Common Stock or other property paid under the
LLC Preferred Shares of such series or the Guarantee.
Status of the Guarantee
The Guarantee will constitute an unsecured obligation of SCI and will rank (i)
junior in right of payment to all other liabilities of SCI and will be
subordinated in right of payment in the same manner and to the same extent as
SCI's guarantee of obligations under the Loan Agreement is subordinated to
Senior Indebtedness, (ii) senior to the preferred stock of any series issued at
or after the date of the Guarantee by SCI and (iii) pari passu with any
guarantee entered into at or after the date of the Guarantee by SCI in respect
of any preferred or preference stock of any affiliate of SCI. See
"-- Description of the Loans -- Subordination." The Guarantee will constitute a
guarantee of payment and not of collection. A holder of LLC Preferred Shares may
enforce the Guarantee directly against SCI, and SCI will waive any right or
remedy to require that any action be brought against SCI Finance or any person
or entity before proceeding against SCI. The Guarantee will not be discharged
except by payment of the Guarantee Payments in full (to the extent not paid by
SCI Finance) and by complete performance of all obligations under the Guarantee.
Governing Law
The Guarantee will be governed by and construed in accordance with the laws of
the State of New York.
DESCRIPTION OF THE LOANS
Set forth below is a summary of information concerning the Loans from SCI
Finance to SCI Limited of 99% of the proceeds from the issuance of (i) the LLC
Preferred Securities and (ii) the LLC Common Shares and related capital
contributions ("Common Share Payments").
General
Pursuant to the Loan Agreement, SCI Finance has agreed to make the Loans to SCI
Limited in an aggregate principal amount equal to 99% of the sum of the
aggregate liquidation preference of the LLC Preferred Securities issued and sold
by SCI Finance and the aggregate Common Share Payments.
The entire principal amount of the Loans will become due and payable (together
with any accrued and unpaid interest thereon) on the earlier of the date set
forth in the accompanying Prospectus Supplement or the date upon which SCI, SCI
Limited or SCI Finance shall be dissolved, wound-up or liquidated.
The Loans and SCI Limited's obligations under the Loan Agreement (i) will be
senior obligations of SCI Limited and will be secured by fifty percent of the
outstanding capital stock of Service Corporation International plc, the
principal assets of which are the capital stock of GSG and PG, and (ii) will be
unconditionally guaranteed by SCI on an unsecured subordinated basis.
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Mandatory Payment
If SCI Finance redeems LLC Preferred Securities in accordance with the terms
thereof, the Loans will become due and payable in a principal amount equal to
the aggregate liquidation preference of the LLC Preferred Securities so
redeemed, together with any and all accrued but unpaid interest thereon and any
premium in excess of such principal amount. Any payment pursuant to this
provision shall be made in immediately available funds prior to 12:00 noon, New
York time, on the date fixed for such redemption or at such other time on such
earlier date as SCI Finance, SCI Limited and SCI shall agree.
Optional Prepayment
SCI Limited will have the right to prepay the Loans, in whole or in part
(together with (i) a premium computed based on the same percentage as the
percentage difference between the then applicable Redemption Price on the LLC
Preferred Securities and the stated liquidation preference of the LLC Preferred
Securities and (ii) any accrued but unpaid interest), as set forth in the
accompanying Prospectus Supplement.
Interest
The Loans will bear interest at an annual rate as set forth in the accompanying
Prospectus Supplement from the date they are made until maturity. Such interest
shall be payable on the last day of each calendar month of each year, commencing
as set forth in the accompanying Prospectus Supplement. In the event that any
date on which interest is payable on the Loans is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date, subject to certain rights of extension described below.
Extended Interest Payment Period
SCI Limited shall have the right at any time or from time to time during the
term of the Loans, so long as SCI Limited is not in default in the payment of
interest on the Loans, to extend interest payments under the Loans for up to 60
monthly interest payment periods; and at the end of such extended period SCI
Limited shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Loans to the extent permitted by
applicable law); provided, however, that, during any such extended interest
payment period, or at any time during which there is an Event of Default under
the Loans, SCI shall not declare or pay any dividend on, and SCI shall not, and
shall not permit any of its majority-owned subsidiaries to, redeem, purchase,
acquire or make a liquidation payment with respect to, any of shares of common
or preferred stock of SCI (other than the redemption by the Company of Series C
Junior Participating Preferred Stock Purchase Rights in accordance with the
Rights Agreement relating thereto and any reacquisition by the Company of any of
its stock issued in any acquisition as a result of a purchase price adjustment
or settlement of breach of warranties in connection with such acquisition) or
make any guarantee payments with respect to the foregoing (other than payments
under the Guarantee). Prior to the termination of any such extended interest
payment period, SCI Limited may further extend the interest payment period,
provided, that such extended interest payment period together with all such
further extensions thereof may not exceed 60 monthly interest payments in the
aggregate over the term of the Loans. SCI Limited shall give SCI Finance notice
of its selection of an extended interest payment period at least one Business
Day prior to the earlier of (i) the date SCI Finance declares, or would be
scheduled to declare, the related dividend or (ii) the date SCI Finance is
required to give notice of the record or payment date of such related dividend
to any national securities exchange on which the LLC Preferred Securities are
listed or other applicable self-regulatory organization or to holders of the LLC
Preferred Securities, but in any event not less than two Business Days prior to
such record date. SCI shall cause SCI Finance to give such notice of SCI
Limited's selection of such extended interest payment period to the holders of
the LLC Preferred Securities concurrently therewith.
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Additional Interest
If at any time SCI Finance is or will be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
such case, SCI Limited also will pay as additional interest such amounts as
shall be required so that the net amounts received and retained by SCI Finance
after paying any such taxes, duties, assessments or governmental charges will
not be less than the amounts SCI Finance would have received had no such taxes,
duties, assessments or governmental charges been imposed.
Method and Date of Payment
Each payment by SCI Limited of principal of, premium, if any, and interest on
the Loans shall be made to SCI Finance in lawful money of the United States, at
such place and to such accounts as may be designated by SCI Finance.
Subordination
The Loan Agreement provides that SCI's guarantee of the Loans is subordinate and
junior in right of payment to all Senior Indebtedness as provided in the Loan
Agreement. In this section, the term "Senior Indebtedness" means the principal
of, and premium, if any, and interest on (i) all indebtedness of SCI, other than
ordinary trade credit and other accounts payable arising in the ordinary course
of business, whether outstanding on the date of the Loan Agreement or thereafter
created, incurred or assumed, which is for money borrowed, or evidenced by a
note or similar instrument given in connection with the acquisition of any
business, properties or assets, including securities, (ii) any indebtedness of
others of the kinds described in the preceding clause (i) for which SCI is
responsible or liable as guarantor and (iii) amendments, renewals, extensions
and refundings of any such indebtedness, unless in any instrument or instruments
evidencing or securing such indebtedness or pursuant to which the same is
outstanding, or in any such amendment, renewal, extension or refunding, it is
expressly provided that such indebtedness is not superior in right of payment to
SCI's guarantee of the Loans. The Senior Indebtedness shall continue to be
Senior Indebtedness and entitled to the benefits of the subordination provisions
of the Loan Agreement irrespective of any amendment, modification or waiver of
any term of the Senior Indebtedness or extension or renewal of the Senior
Indebtedness.
The rights of SCI Limited and its creditors, including SCI Finance as to the
Loans, and SCI and its creditors, including SCI Finance pursuant to SCI's
guarantee of the Loans and the holders under the Guarantee, to participate in
the assets of any subsidiary of SCI Limited or SCI upon any liquidation or
reorganization of such subsidiary or otherwise will be subject to the prior
claims of creditors of such subsidiary, except to the extent that SCI Limited or
SCI may itself be a creditor with recognized claims against the subsidiary. The
ability of SCI Limited or SCI to meet its obligations may be dependent upon the
payment to it of dividends, interest and other charges by its subsidiaries. The
ability of SCI Limited's subsidiaries and SCI's subsidiaries to pay dividends or
make other payments to SCI Limited or SCI, as the case may be, is not currently
subject to any contractual or legal restriction (except for limitations imposed
by applicable state corporation laws) which could materially affect SCI
Limited's and SCI's ability to meet their obligations under the Loan Agreement
and the Guarantee. Through their ownership of their subsidiaries, SCI Limited
and SCI currently control (subject to applicable state corporation laws) such
subsidiaries' payment of dividends or other distributions; there can be no
assurance, however, that SCI Limited and SCI will continue such ownership and
control of their subsidiaries.
In the event that (i) SCI shall default in the payment of any principal of,
premium, if any, or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or
declaration or otherwise or (ii) an event of default occurs with respect to any
Senior Indebtedness permitting the holders thereof to accelerate the maturity
thereof and written notice of such event of default is given to SCI by the
holders of such Senior Indebtedness, then unless and until such default in
payment or event of default shall have been cured or waived or shall have ceased
to exist, no direct or indirect payment (in cash, property, securities, by
set-off or otherwise) may be made or agreed to be made by SCI on account of
SCI's guarantee of the Loans or interest thereon or by SCI in respect of any
repayment, redemption, retirement, purchase or other acquisition of the Loans.
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In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to SCI or its property or for the benefit of its creditors, (ii) any proceeding
for the liquidation, dissolution or other winding up of SCI, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by SCI for the benefit of creditors or (iv) any other
marshaling of the assets of SCI, all Senior Indebtedness (including, without
limitation, interest accruing thereon after the commencement of any such
proceeding, assignment or marshaling of assets) shall first be paid in full
before any payment or distribution, whether in cash, securities or other
property, may be made by SCI on account of its guarantee obligations under the
Loan Agreement and the Loans. In any such event, any payment or distribution,
whether in cash, securities or other property (other than securities of SCI or
any other corporation provided for by a plan of reorganization or a
readjustment, the payment of which is subordinate, at least to the extent
provided in the subordination provisions relating to SCI's guarantee obligations
under the Loan Agreement and the Loans with respect to the indebtedness
evidenced by the Loans, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), which would otherwise (but for the
subordination provision) be payable or deliverable in respect of SCI's guarantee
obligations under the Loan Agreement and the Loans shall be paid or delivered
directly to the holders of Senior Indebtedness (or their representative or
trustee) in accordance with the priorities then existing among such holders
until all Senior Indebtedness shall have been paid in full. No present or future
holder of any Senior Indebtedness may be prejudiced in the right to enforce
subordination of SCI's guarantee obligations under the Loan Agreement and the
Loans by any act or failure to act on the part of SCI.
Senior Indebtedness shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, SCI Finance shall be subrogated to all the
rights of any holders of Senior Indebtedness to receive any further payments or
distributions applicable to the Senior Indebtedness until the Loans shall have
been paid in full, and such payments or distributions of cash, securities or
other property received by SCI Finance, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of Senior Indebtedness,
shall, as between SCI and its creditors other than the holders of Senior
Indebtedness on the one hand, and SCI Finance, on the other, be deemed to be a
payment by SCI on account of Senior Indebtedness, and not on account of SCI's
guarantee obligations under the Loan Agreement and the Loans.
Covenants
SCI will covenant that SCI will not declare or pay any dividend on, and SCI will
not, and will not permit any of its majority-owned subsidiaries to, redeem,
purchase, acquire or make a liquidation payment with respect to, any of SCI's
capital stock (other than the redemption by the Company of Series C Junior
Participating Preferred Stock Purchase Rights in accordance with the Rights
Agreement relating thereto and any reacquisition by the Company of any of its
stock issued in any acquisition as a result of a purchase price adjustment or
settlement of breach of warranties in connection with such acquisition), or make
any guarantee payments with respect to the foregoing (other than payments under
the Guarantee), if at such time (i) there shall have occurred any event that
constitutes an Event of Default under the Loan Agreement, (ii) SCI shall be in
default with respect to its payment or other obligations under the Guarantee or
SCI or the Manager shall be in default under its obligations under the Liability
Assumption Agreement or (iii) there shall exist any nonpayment of interest under
the Loans, including during any valid extension of the interest payment periods.
SCI will also covenant (i) to maintain direct 100% ownership of the LLC Common
Shares and any other interests of SCI Finance other than the LLC Preferred
Shares, (ii) to cause more than 20% of the total value (initially measured by
shareholders' equity determined in accordance with generally accepted accounting
principles) of SCI Finance and, subject to the preferential rights of the
holders of LLC Preferred Shares as to dividends and liquidation distributions,
more than 20% of all interests in the capital, income, gain, loss, deduction and
credit of SCI Finance to be represented by LLC Common Shares, (iii) not to
dissolve, wind-up or liquidate SCI Finance voluntarily, (iv) to remain the
Manager of SCI Finance and to timely perform all of its duties as Manager
(including the duty to declare and pay dividends on the LLC Preferred Shares as
described in "-- Dividends") and (v) to use its reasonable efforts to cause SCI
Finance to remain a limited liability company under the laws
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of the State of Texas (provided however that SCI Finance may reorganize under
the laws of another jurisdiction provided that SCI Finance has received a legal
opinion from nationally recognized legal counsel that such reorganization will
not have an adverse effect, including, without limitation, an adverse tax
effect, on the holders of the LLC Preferred Securities) and use reasonable
efforts to cause SCI Finance to continue to be treated as a partnership for
United States Federal income tax purposes. In addition, SCI has agreed to
maintain and reserve sufficient authorized but unissued Common Stock sufficient
to satisfy all conversion rights under the LLC Preferred Securities and to have
available for issuance such other property as may be subject to delivery
pursuant to such conversion rights.
SCI Finance may not waive compliance or waive any default in compliance by SCI
Limited of any covenant or other term in the Loan Agreement or by SCI of its
guarantee of the Loans without the approval of the same percentage of the
holders of LLC Preferred Securities, obtained in the same manner, as would be
required for an amendment of the Loan Agreement to the same effect.
Events of Default
If one or more of the following events (each an "Event of Default") shall occur
and be continuing:
(a) default in the payment of any interest on the Loans when due for 10 Business
Days; provided, however, that a valid extension of the interest payment period
by SCI Limited shall not constitute a default in the payment of interest for
this purpose (see "-- Description of the Loans-- Interest"); or
(b) default in the payment of principal of or premium of any, on the Loans when
due; or
(c) failure of SCI to comply with the conversion provisions of the LLC Preferred
Securities; or
(d) the dissolution, winding-up or liquidation of SCI Finance; or
(e) the bankruptcy, insolvency or liquidation of SCI or SCI Limited; or
(f) breach by SCI Limited or SCI of any of its covenants under the Loan
Agreement continued for 30 days after notice to SCI Limited and SCI from the
holders of not less than 25 percent in liquidation preference of the LLC
Preferred Securities then outstanding;
then, SCI Finance will have the right to declare the principal of and the
interest on the Loans (including any interest subject to an extension election)
and all other amounts payable under the Loan Agreement to be forthwith due and
payable and to enforce its other rights as a creditor with respect to the Loans.
Under the terms of the LLC Preferred Securities, the holders of outstanding LLC
Preferred Securities will have the rights referred to under "-- Description of
the LLC Preferred Securities -- Voting Rights," including the right to appoint a
trustee, which trustee will be authorized to exercise SCI Finance's right to
accelerate the principal amount of the Loans and to enforce SCI Finance's other
creditor rights under the Loans and the Loan Agreement, and SCI Limited and SCI
agree to cooperate with such trustee.
Miscellaneous
SCI Limited will have the right at all times to assign any of its rights or
obligations under the Loan Agreement to a direct or indirect wholly-owned
subsidiary of SCI; provided, however, that, in the event of any such assignment,
SCI Limited will remain jointly and severally liable for all such obligations;
and provided further, that SCI Limited shall receive an opinion of legal counsel
that the effect of any such assignment does not cause SCI Finance to be
considered an "investment company" under the Investment Company Act of 1940, as
amended. SCI Finance may not assign any of its rights under the Loan Agreement
without the prior written consent of SCI Limited and SCI. Subject to the
foregoing, the Loan Agreement will be binding upon and inure to the benefit of
SCI Limited, SCI and SCI Finance and their respective successors and assigns.
The Loan Agreement provides that it may not otherwise be assigned by SCI
Limited, SCI Finance or SCI.
The Loan Agreement will provide that neither SCI Limited nor SCI may permit
another entity to merge with or into SCI Limited or SCI, as the case may be,
unless (i) at such time no Event of Default has occurred and is continuing, or
would occur as a result of such merger, and (ii) either (a) SCI Limited or SCI,
as the case may
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be, is the survivor of such merger or (b) the survivor is a corporation
organized under the laws of the United States or any state thereof and expressly
assumes all of the obligations of SCI Limited or SCI, as the case may be, under
the Loan Agreement and the Loans and SCI Limited receives an opinion of counsel
from nationally recognized legal counsel that the merger will not result in the
recognition of taxable gain or loss by the holders of the LLC Preferred
Securities.
The Loan Agreement will be governed by and construed in accordance with the laws
of the State of New York.
The Loan Agreement may be amended by mutual consent of the parties in the manner
the parties shall agree; provided, however, that, so long as any of the LLC
Preferred Securities remain outstanding, no such amendment shall be made that
adversely affects the holders of LLC Preferred Securities, no termination of the
Loan Agreement shall occur, and no Event of Default or compliance with any
covenant under the Loan Agreement may be waived by SCI Finance, without the
prior consent of the holders of 66 2/3% in liquidation preference of the
outstanding LLC Preferred Securities, in writing or at a duly constituted
meeting of such holders.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
REGARDING THE LLC PREFERRED SECURITIES
GENERAL
In the opinion of Miller & Chevalier, Chartered, special tax counsel to SCI and
SCI Finance, the following discussion accurately describes, subject to the
qualifications stated herein, the material federal income tax considerations
relevant to the purchase, ownership and disposition of the LLC Preferred
Securities. This discussion, which may be modified or supplemented in a
Prospectus Supplement, is a summary that does not purport to deal with all
aspects of federal income taxation that may be relevant to holders of the LLC
Preferred Securities, nor to certain types of holders subject to special
treatment under the federal income tax laws (for example, banks, life insurance
companies, dealers, tax-exempt organizations, persons whose functional currency
is not the U.S. dollar, or foreign persons and foreign entities). Unless
otherwise stated, this discussion is directed at initial purchasers who acquire
the LLC Preferred Securities at original issue and hold the LLC Preferred
Securities as capital assets.
This discussion is based on the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury regulations, judicial decisions and Internal Revenue Service
("IRS") rulings and notices currently in effect, all of which are subject to
change, which change may possibly be applied in a retroactive manner that could
adversely affect a holder of the LLC Preferred Securities. While the discussion
is based on the opinion of Miller & Chevalier, Chartered, an opinion of counsel
is not binding on the IRS or the courts. Neither SCI nor SCI Finance has sought,
or intends to seek, a ruling from the IRS that the positions stated in the
discussion will be accepted by the IRS. Moreover, there are no cases or rulings
on similar transactions, and there can be no assurance that the IRS will agree
with the conclusions expressed below.
PROSPECTIVE PURCHASERS OF LLC PREFERRED SECURITIES ARE ADVISED TO CONSULT THEIR
OWN TAX ADVISORS AS TO THE FEDERAL INCOME, ESTATE AND GIFT TAX CONSEQUENCES OF
PURCHASING, HOLDING AND DISPOSING OF LLC PREFERRED SECURITIES, AS WELL AS THE
TAX CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, FOREIGN COUNTRY OR OTHER
JURISDICTION.
TAX CLASSIFICATION
While the following matters are not free from doubt, Miller & Chevalier,
Chartered is of the opinion that (i) SCI Finance will be classified as a
partnership for federal income tax purposes and not as an association (or as a
publicly traded partnership) taxable as a corporation, and (ii) the Loans will
be classified as indebtedness for such purposes. This advice is based upon the
terms of the Loans, the LLC Articles, the LLC Regulations and
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related documents and transactions as described in this Prospectus (and assumes
ongoing compliance with such documents).
Prospective investors and their advisors should be aware, however, that the
proper characterization of the arrangement involving SCI Finance, the Loans and
the LLC Preferred Securities is not entirely clear, and the IRS has recently
announced that it will scrutinize and may challenge transactions with some
features that are similar to this arrangement. If, contrary to the opinion of
tax counsel, the IRS successfully argued that SCI Finance should be taxable as a
corporation, SCI Finance would be subject to federal income tax at corporate
rates and distributions to holders of LLC Preferred Securities likely would be
taxable as dividend income. Similarly, if, contrary to the opinion of tax
counsel, the IRS successfully asserted that the Loans were properly classified
as stock or other equity, then payments on the Loans would not be deductible by
SCI Limited as interest, but instead likely would be treated as distributions to
holders taxable as dividends.
Prospective investors should also be aware that the IRS recently issued a
proposed Treasury regulation under which the IRS can disregard or recast the
form of a partnership transaction if the partnership is formed or availed of in
connection with a transaction (or series of related transactions) "with a
principal purpose of substantially reducing the present value of the partners'
aggregate federal tax liability" in a manner inconsistent with the intent of the
partnership provisions of the Code. The regulation is proposed to be effective
for all transactions occurring on or after May 12, 1994. In the view of Miller &
Chevalier, Chartered, SCI Finance should not be considered to be formed or
availed of with the purpose proscribed by the proposed regulation because the
transactions involving SCI Finance are not of the type intended to fall within
the scope of the proposed regulation. There can be no assurance, however, that
the IRS will agree with this view. It also is impossible to predict what changes
might be made in the proposed regulation before it is adopted in final form.
Unless otherwise noted, the remainder of this summary assumes, in accordance
with the opinion of Miller & Chevalier, Chartered, that SCI Finance is properly
classified as a partnership and the Loans are properly classified as
indebtedness for federal income tax purposes.
INCOME FROM LLC PREFERRED SECURITIES
As partners in a partnership, each holder of LLC Preferred Securities will be
required to include in gross income its distributive share of the net income of
SCI Finance, which net income generally will be equal to the amount of interest
received or accrued on the Loans. See "Original Issue Discount" below. Any
amount so included in a holder's gross income will increase its tax basis in the
LLC Preferred Securities, and the amount of distributions of cash or other
property by SCI Finance to the holder will reduce such holder's tax basis in the
LLC Preferred Securities. No portion of the amounts received on the LLC
Preferred Securities will be eligible for the dividends received deduction.
SCI Finance does not presently intend to make an election under Section 754 of
the Code. As a result, a subsequent purchaser of LLC Preferred Securities will
not be permitted to adjust the tax basis in its allocable share of SCI Finance's
assets so as to reflect any difference between its purchase price for the LLC
Preferred Securities and the underlying tax basis of SCI Finance in its assets.
As a result, a holder of LLC Preferred Securities may be required to report a
larger or smaller amount of income from holding LLC Preferred Securities than
would otherwise be appropriate based upon the holder's purchase price for the
LLC Preferred Securities.
ORIGINAL ISSUE DISCOUNT
Under the terms of the Loans, SCI Limited will have the right to extend interest
payments under the Loans for up to 60 monthly interest payment periods. If the
payment period is extended, SCI Finance will continue to accrue income, equal to
the amount of the interest payment due at the end of the extended payment
period, over the length of the extended payment period. As a result, holders of
record during an extended interest payment period will include interest in gross
income in advance of the receipt of cash, and any such holders who dispose of
LLC Preferred Securities prior to the record date for the payment of dividends
following such extended interest payment period will include such holder's
allocable share of such interest in gross income but will not receive any cash
from SCI Finance related thereto. The tax basis of an LLC Preferred Security
will be increased by the
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amount of any interest that is included in income without a receipt of cash and
will be decreased when and if such cash is subsequently received from SCI
Finance.
A holder should not be required to allocate a portion of the amount paid for an
LLC Preferred Security to any right to convert such LLC Preferred Security into
SCI Common Stock and, therefore, should not be required to include any amount in
income by reason of original issue discount on the LLC Preferred Security. The
IRS might take a contrary view, however, and require holders to allocate a
portion of the price paid for a convertible LLC Preferred Security to the right
to convert into SCI Common Stock. If the IRS were successful in requiring such
an allocation, a holder could be required to include an incremental amount of
original issue discount (in addition to stated interest) in income over the life
of such LLC Preferred Security. SCI intends to take the position that no
allocation that would result in additional original issue discount (in excess of
stated interest) is required.
USE OF CONVENTION
SCI Finance may adopt a convention for allocating all of the net income accrued
by SCI Finance in any calendar month, such as by allocating the net income to
the holders of record of the LLC Preferred Securities and the Common Shares on
the dividend record date. It is unclear whether this convention will be
respected for federal income tax purposes. If it is not respected, the
distributive share of SCI Finance's net income allocable to LLC Preferred
Securities in respect of a month in which such shares are sold may be allocated
between the seller and the purchaser on some other basis. Any amount so
allocated to the holder of record of the LLC Preferred Securities, whether as
seller or purchaser, would be includible in the holder's income and would
increase the holder's basis in the LLC Preferred Securities.
DISPOSITION OF LLC PREFERRED SECURITIES
Gain or loss will be recognized on a sale of LLC Preferred Securities, including
a complete redemption for cash, equal to the difference between the amount
realized and the holder's tax basis for the LLC Preferred Securities sold. Gain
or loss on the sale or exchange of LLC Preferred Securities held for more than
one year generally will be taxable as long-term capital gain or loss. The
adjusted tax basis of the LLC Preferred Securities sold by a holder will equal
the amount paid by such holder for the LLC Preferred Securities, plus the share
of partnership income allocated to such holder and reduced by any cash or other
property distributed to such holder by SCI Finance. A holder acquiring LLC
Preferred Securities at different prices may be required to maintain a single
aggregate adjusted tax basis in such LLC Preferred Securities, and, upon sale or
other disposition of some of the LLC Preferred Securities, allocate a pro rata
portion of such aggregate tax basis to the LLC Preferred Securities sold (rather
than maintaining a separate tax basis in each LLC Preferred Security for
purposes of computing gain or loss on a sale of that LLC Preferred Security).
If a holder of LLC Preferred Securities is required to recognize an aggregate
amount of income over the life of the LLC Preferred Securities that exceeds the
aggregate cash distributions with respect thereto, such excess generally will
result in a capital loss upon the retirement of the LLC Preferred Securities.
To the extent SCI Limited is required to pay a prepayment premium to SCI Finance
in connection with a prepayment of the Loans, SCI Finance will pay a
corresponding redemption premium to holders of LLC Preferred Securities whose
LLC Preferred Securities are redeemed. SCI Finance will recognize capital gain
on a prepayment of the Loans to the extent of the prepayment premium. SCI
Finance's gain will be allocated to the holders whose LLC Preferred Securities
are subsequently redeemed by SCI Finance, and the allocated gain should increase
such holders' adjusted tax basis in these LLC Preferred Securities. A holder who
has a basis increase due to such allocation will not have additional taxable
gain attributable to the redemption premium upon SCI Finance's subsequent
redemption of the holder's LLC Preferred Securities.
CONVERSION OF LLC PREFERRED SECURITIES
A holder who converts convertible LLC Preferred Securities into SCI Common Stock
will recognize gain or loss in an amount equal to the difference between the tax
basis of the LLC Preferred Securities and the fair market value of the SCI
Common Stock received plus the amount of cash received in lieu of fractional
shares. Such gain
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or loss will be long-term capital gain or loss if the LLC Preferred Securities
have been held for more than one year. The holder's tax basis in the SCI Common
Stock received in the conversion will equal its fair market value.
ADJUSTMENT OF CONVERSION PRICE
Treasury regulations under Section 305 of the Code would treat holders of LLC
Preferred Securities as having received a constructive distribution from SCI in
the event the conversion ratio of convertible LLC Preferred Securities were
adjusted if (i) as a result, the proportionate interest of the holders of such
LLC Preferred Securities in the assets or earnings and profits of SCI were
increased and (ii) the adjustment was not made pursuant to a bona fide,
reasonable antidilution formula. An adjustment in the conversion ratio would not
be considered made pursuant to such a formula if the adjustment was made to
compensate for certain taxable distributions with respect to the stock into
which such LLC Preferred Securities are convertible. Thus, under certain
circumstances, a reduction in the conversion price for the LLC Preferred
Securities is likely to be taxable to the holders thereof as dividend to the
extent of the earnings and profits of SCI.
INFORMATION RETURNS AND AUDIT PROCEDURES
The Manager will furnish each holder with a Schedule K-1 each year setting forth
such holder's allocable share of income for the prior calendar year. The Manager
is required, under the LLC Regulations, to furnish such Schedule K-1 as soon as
practicable following the end of the taxable year, but in any event prior to
March 31st of each succeeding year (assuming, as anticipated, that SCI Finance's
taxable year is a calendar year).
Any person who holds LLC Preferred Securities as nominee for another person is
required to furnish to SCI Finance (a) the name, address and taxpayer
identification number of the beneficial owner and the nominee; (b) information
as to whether the beneficial owner is (i) a person that is not a United States
person, (ii) a foreign government, an international organization or any
wholly-owned agency or instrumentality of either of the foregoing or (iii) a
tax-exempt entity; (c) the amount and description of LLC Preferred Securities
held, acquired or transferred for the beneficial owner; and (d) certain
information including the dates of acquisitions and transfers, means of such
acquisitions and transfers, and acquisition costs for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are United
States persons and certain information on LLC Preferred Securities they acquire,
hold or transfer for their own accounts. A penalty of $50 per failure (up to a
maximum of $100,000 per calendar year) is imposed by the Code for failure to
report such information to SCI Finance. The nominee is required to supply the
beneficial owners of the LLC Preferred Securities with the information furnished
to SCI Finance.
SCI, as the tax matters partner, will be responsible for representing the
holders in any dispute with the IRS. The Code provides for administrative
examination of a partnership as if the partnership were a separate and distinct
taxpayer. Generally, the statute of limitations for partnership items does not
expire before three years from the later of the filing or the last date for
filing of the partnership information return. Any adverse determination
following an audit of the return of SCI Finance by the appropriate taxing
authorities could result in an adjustment of the tax returns of the holders,
and, under certain circumstances, a holder may be precluded from separately
litigating a proposed adjustment to the items of the partnership. An adjustment
could also result in an audit of a holder's tax return and adjustments of items
not related to the income and losses of SCI Finance.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate U.S. holders from the sale of LLC Preferred Securities within the
United States, and "backup withholding" at a rate of 31% will apply to such
payments if the United States holder fails to provide an accurate taxpayer
identification number.
Payments of the proceeds from the sale by a United States Alien Holder (as
defined below) of LLC Preferred Securities made to or through a foreign office
of a broker will not be subject to information reporting or backup withholding,
except that, if the broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person 50% or more of
whose gross income is effectively connected with a United States trade or
business for a specified three-year period, information reporting may apply to
such payments.
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Payments of the proceeds from the sale of LLC Preferred Securities to or through
the United States office of a broker is subject to information reporting and
backup withholding unless the holder or beneficial owner certifies as to its
non-United States status or otherwise establishes an exemption for information
reporting and backup withholding.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any holder
who or which is (i) a nonresident alien individual or (ii) a foreign
corporation, foreign partnership, foreign estate or foreign trust, in any such
case not subject to United States federal income tax on a net income basis in
respect of an LLC Preferred Security.
Under present United States federal income tax law:
(i) payments with respect to interest from SCI Limited made to SCI Finance or
any of its paying agents to any holder of an LLC Preferred Security who or which
is a United States Alien Holder will not be subject to United States federal
withholding tax; provided that (a) the beneficial owner of the LLC Preferred
Security does not actually or constructively own 10% or more of the total
combined voting power of all classes of stock of SCI Limited entitled to vote,
(b) the beneficial owner of the LLC Preferred Security is not a controlled
foreign corporation that is related to SCI Limited through stock ownership, and
(c) either (A) the beneficial owner of the LLC Preferred Security certifies to
SCI Finance or its agent, under penalties of perjury, that it is not a United
States Holder and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "financial
institution") and holds the LLC Preferred Security certifies to SCI Finance or
its agent under penalties of perjury that such statement has been received from
the beneficial owner by it or by a financial institution between it and the
beneficial owner and furnishes the payor with a copy thereof; and
(ii) a United States Alien Holder of an LLC Preferred Security will not be
subject to United States withholding tax on any gain realized on the sale or
exchange of a LLC Preferred Security.
PLAN OF DISTRIBUTION
The Company and/or SCI Finance may sell Securities to or through underwriters,
and also may sell Securities directly to other purchasers or through agents. The
distribution of the Securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive compensation
from the Company and/or SCI Finance or from purchasers of Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and/or SCI Finance and any profit on the
resale of Securities by them may be deemed to be underwriting discounts and
commissions, under the Act. Any such underwriter or agent will be identified,
and any such compensation received from the Company and/or SCI Finance will be
described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company and/or SCI Finance,
underwriters and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company and/or SCI Finance against certain
liabilities, including liabilities under the Act.
If so indicated in the Prospectus Supplement, the Company and/or SCI Finance
will authorize underwriters or other persons acting as the Company's and/or SCI
Finance's agents to solicit offers by certain institutions to purchase
Securities from the Company and/or SCI Finance pursuant to contracts providing
for payments and delivery on a future date. Institutions with which such
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
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others, but in all cases such institutions must be approved by the Company
and/or SCI Finance. The obligations of any purchaser under any such contract
will be subject to the condition that the purchase of the offered Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
LEGAL MATTERS
The validity of the Guarantee offered hereby will be passed upon for the Company
by Wachtell, Lipton, Rosen & Katz, New York, New York, special counsel for the
Company. The validity of the Securities (other than the Guarantee) offered
hereby will be passed upon for the Company and SCI Finance, respectively, by
Fulbright & Jaworski L.L.P., Houston, Texas, special Texas counsel for the
Company. Certain tax matters with respect to the LLC Preferred Securities will
be passed upon for the Company and SCI Finance by Miller & Chevalier, Chartered,
Washington, D.C., special tax counsel for the Company. Certain legal matters in
connection with the Securities will be passed upon for any underwriters by
Cahill Gordon & Reindel (a partnership including a professional corporation),
New York, New York.
EXPERTS
The consolidated financial statements of Service Corporation International at
December 31, 1993, and for the year then ended appearing in Service Corporation
International's Annual Report (Form 10-K) for the year ended December 31, 1993,
have been audited by Coopers & Lybrand L.L.P., independent auditors, and at
December 31, 1992, and for each of the two years in the period ended December
31, 1992, by Ernst & Young LLP, independent auditors, as set forth in their
respective reports thereon incorporated herein by reference in reliance upon
such reports given upon the authority of such firms as experts in accounting and
auditing.
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[SERVICE CORPORATION INTERNATIONAL LOGO]
