Information Agent Agreement
Exhibit 4.5
FORM OF
September 9, 2019
StoneMor Partners L.P.
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This letter agreement (this “Agreement”) by and between ▇.▇. ▇▇▇▇ & Co., Inc. (“King”), and StoneMor Partners L.P. (the “Company”), sets forth the terms and conditions of the engagement of King by the Company, in connection with the offer (the “Rights Offer”) by the Company to issue Subscription Rights to holders of common units (the “Holders”). This Agreement shall commence on the date hereof and shall terminate on the completion, expiration or termination of the Rights Offering (the “Term”). Capitalized terms used herein and not defined shall have the definitions ascribed to such terms in the Prospectus.
1. Services.
(a) The Company hereby retains King as information agent (the “Information Agent”) in connection with the Rights Offer.
(b) In its capacity as Information Agent, King shall provide such advisory and consulting services as are customarily provided by information agents with respect to rights offers (“Information Agent Services”) and shall contact Holders, and provide information with respect to the Rights Offer. In no event shall King make any recommendation to any Holder regarding whether to participate in the Rights Offer.
(c) King shall use, and shall be provided by the Company with as many copies as King may reasonably request from time to time of, the following materials filed by the Company with the Securities and Exchange Commission (the “Commission”): (i) the Rights Offer; (ii) press releases and newspaper advertisements, if applicable; (iii) letters to brokers, dealers, banks and trust companies relating to the Rights Offer; and (iv) any and all amendments or supplements to the foregoing (collectively, the “Rights Offer Materials”).
2. Fees and Expenses.
(a) As consideration for the Services, the Company shall pay to King a non-refundable fee of $9,500, payable in full upon the signing of this agreement (the “Service Fee”).
(b) In the event that the Company (i) extends the four (4) month Term hereof for an additional Terms of two (2) months each, the Company shall pay to King an extension fee of $2,500 for such, and each subsequent, extension (the “Extension Fee”) and (ii) if the Company requests that King provide additional services in addition to the Information Agent Services, the Company shall pay to King additional fees for such services at King’s reasonable and customary rates, such fees to be mutually agreed to by the parties hereto at such time (the “Additional Service Fee”; together with the Service Fee and the Extension Fee, the “Fees”).
(c) The Company shall reimburse King for all reasonable and documented expenses incurred by King including, without limitation, reasonable fees and disbursements of counsel in connection with the Services (the “Expenses”).
3. Information. The Company acknowledges that it shall be solely responsible for the information contained in the Rights Offer Materials (the “Information”). King shall be entitled to use and rely upon the Information without responsibility for independent verification thereof and does not assume responsibility for the accuracy or completeness of the Information. The Company shall advise King reasonably promptly of any amendment or supplement to the Rights Offer Materials and shall provide such amendment or supplement to King as soon as practicable. The Company hereby agrees that none of the Rights Offer Materials shall make reference to King without prior review and written or oral approval (such approval not to be unreasonably withheld, delayed or conditioned) of King.
4. Representations and Warranties.
The Company and King each represents and warrants (except only the Company shall represent and warrant items (b), (c), (d) and (e) of this paragraph) that:
(a) this Agreement is valid and binding on it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(b) the Company has taken, or will take, all necessary corporate action prior to the commencement of the Rights Offer to authorize the Rights Offer;
(c) all Rights Offer Materials will comply, in all material respects, with the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (the “Exchange Act”), and none of the Rights Offer Materials, and no other report, filing, document, release or communication published or filed by the Company in connection with the Rights Offer, will contain any untrue or misleading statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading;
(d) the Rights Offer will comply, in all material respects, with all applicable requirements of law including the applicable rules or regulations of any governmental or regulatory authority or body, and no material consent or approval of, or filing with, any governmental or regulatory authority or body, (other than required filings under the Exchange Act) is required in connection with the making or consummation of the Rights Offer (or, if any such material consent, approval or filing is required it will be duly obtained or made prior to the commencement of the Rights Offer); and
(e) the Rights Offer and the execution, delivery and performance of this Agreement, will not conflict with or result in a breach of or constitute a default under the Company’s certificate of incorporation and by-laws, or any material agreement, indenture, mortgage, note or another instrument by which the Company is bound, except as would not reasonably be expected to have a material adverse effect on the Company or the transactions contemplated under the Rights Offer.
5. Confidentiality.
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(a) King shall preserve the confidentiality of all material non-public information provided by the Company or its agents for King’s use in fulfilling the Services (the “Confidential Information”), and shall not publish, disclose or otherwise divulge, such Confidential Information without the Company’s prior written consent, except to its officers, directors, agents, or employees on a confidential and need-to-know basis to perform the services required hereunder.
(b) Nothing herein shall prevent King from disclosing any such Confidential Information (i) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law or compulsory legal process based on the advice of counsel (in which case King agrees, to the extent practicable and not prohibited by applicable law, to inform the Company promptly thereof prior to disclosure), (ii) upon the request or demand of any regulatory authority having jurisdiction over King (in which case King agrees, to the extent practicable and not prohibited by applicable law, to inform the Company promptly thereof prior to disclosure), (iii) to the extent that such Confidential Information becomes publicly available other than by reason of improper disclosure by King in violation of any confidentiality obligations owing to the Company or any of its respective affiliates, (iv) to the extent that such information is received by King from a third party that is not, to King’s best knowledge, subject to contractual or fiduciary confidentiality obligations owing to the Company or its respective affiliates or related parties, and (v) to the extent such information was independently and lawfully developed by King without the use of any Confidential Information. Promptly upon the Company’s written request, King will deliver to the Company or destroy all Confidential Information.
6. Indemnity.
(a) The Company hereby agrees to indemnify and hold harmless King and its affiliates and its and their officers, directors, employees, advisors, agents, , other representatives and controlling persons (King, and each such other person being an “Indemnified Person”; and such affiliates, officers, directors, employees, advisors, agents, other representatives and controlling persons of any such Indemnified Person are referred to herein as its “related parties”), from and against any and all losses, claims, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject to arising out of or in connection with this Agreement and the Services or any claim, litigation, investigation or proceeding (any of the foregoing, a “Proceeding”) relating to any of the foregoing, regardless of whether any such Indemnified Person is a party thereto or whether a Proceeding is brought by a third party or by the Company or any of its affiliates, and to reimburse each such Indemnified Person upon demand for any reasonable, documented legal or other out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing by one counsel to the Indemnified Persons taken as a whole and, in the case of a conflict of interest, one additional counsel to the affected Indemnified Persons taken as a whole; provided that the foregoing indemnity shall not, as to any Indemnified Person or related parties, apply to losses, claims, damages, liabilities or related expenses (i) to the extent they have resulted from the willful misconduct or gross negligence of such Indemnified Person or any of the related parties (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) arising from a material breach of the obligations of such Indemnified Person under this Agreement or (iii) arising out of, or in connection with, any Proceeding that does not involve an act or omission by the Company or any of its affiliates and that is brought by an Indemnified Person against any other Indemnified Person. The foregoing indemnity and the Company’s reimbursement obligations hereunder will be in addition to any liability which the Company may otherwise have and will be binding upon and inure to the benefit of any of the Company’s successors and assigns and the Indemnified Persons.
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(b) No party hereto shall be liable to any other party on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings.
(c) In the event that an Indemnified Person is requested or required to appear as a witness or is deposed in any action brought by or on behalf of or against the Company or any of its subsidiaries or affiliates in which such Indemnified Person is not named as a defendant, the Company agrees to reimburse such Indemnified Person for all reasonable expenses incurred by it in connection with such Indemnified Person’s appearing and preparing to appear as such a witness, including, without limitation, the reasonable fees and expenses of its legal counsel.
7. Notices. Any notice, report or payment required or permitted to be given or made under this Agreement by one party to the other shall be in writing and addressed to the other party at the following address (or at such other address as shall be given in writing by one party to the other):
If to the Company, at the address above, with a copy to:
StoneMor Partners L.P.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief Executive Officer
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
If to King:
▇.▇. ▇▇▇▇ & Co., Inc.
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Attention: ▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇
8. Miscellaneous.
(a) The Company acknowledges and agrees that (i) no fiduciary, advisory or agency relationship between the Company and King is intended to be or has been created in respect of any of the transactions contemplated by this Agreement and (ii) the Company and
(b) King each waives, to the fullest extent permitted by law, any claims that it may have against the other for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that each shall have no liability (whether direct or indirect) to the other in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company or King as applicable, including its Holders, employees or creditors.
(c) This Agreement shall be construed and enforced in accordance with the laws of the State of New York, without reference to its conflicts of law rules. It is agreed that any action, suit or proceeding arising out of or based upon this Agreement shall be brought in the United States District Court for the Southern District of New York or any court of the State of New York of competent jurisdiction located in such District. Service of any process by registered mail addressed to each party at the respective address above shall be effective service of process against such party upon receipt for any
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suit, action or proceeding brought in any such court. The parties hereto (i) waive, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Services in any New York State court or in any such Federal court, (ii) waive, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court, and (iii) agree that a final judgment upon exhaustion of appeal rights in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. EACH PARTY HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OF ANY SERVICES HEREUNDER.
(d) The compensation, confidentiality, reimbursement, indemnification, jurisdiction, governing law and waiver of jury trial provisions contained herein shall remain in full force and effect regardless of the termination of the Agreement. No amendment or waiver of any provision hereof shall be effective unless in writing and signed by the parties hereto and then only in the specific instance and for the specific purpose for which given. This Agreement is the only agreement between the parties hereto with respect to the matters contemplated hereby and sets forth the entire understanding of the parties with respect thereto. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission (or in “.pdf” or “.tif” form) shall be effective as delivery of a manually executed counterpart of this Agreement. If any provision of this Agreement shall be held illegal or invalid by any court, this Agreement shall be construed and enforced as if such provision had not been contained herein and shall be deemed an agreement between the parties hereto to the fullest extent permitted by law.
If the foregoing correctly sets forth the understanding between the Company and King, please indicate acceptance thereof in the space provided below for that purpose, whereupon this Agreement and the Company’s acceptance shall constitute a binding agreement between the parties hereto.
[Signature page follows]
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This Information Agent Agreement has been executed by the parties hereto as of the date first written above.
| ▇.▇. ▇▇▇▇ & CO., INC. | ||
| By: |
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| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||
| Title: Senior Vice President | ||
SIGNATURE PAGE TO
INFORMATION AGENT AGREEMENT
Accepted as of the date first above written:
| StoneMor Partners L.P. | ||
| By: |
| |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: President and Chief Executive Officer | ||
SIGNATURE PAGE TO
INFORMATION AGENT AGREEMENT