-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LY9lbcQ1Vn4SHJ3hwE2RIiJa8+kxN06tFuEGLRwOPzD2KKioySlzEgzMyMF9hMTN 5LZpuNsodbYxTLa8ccFN7g== 0001047469-98-039147.txt : 19981105 0001047469-98-039147.hdr.sgml : 19981105 ACCESSION NUMBER: 0001047469-98-039147 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19981104 GROUP MEMBERS: 3546373 CANADA INC. (FORMERLY LOEWEN FINANCIAL INC.) GROUP MEMBERS: ANNE LOEWEN GROUP MEMBERS: LOEWEN RAYMOND L & ANNE LOEWEN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: LOEWEN GROUP INC CENTRAL INDEX KEY: 0000845577 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PERSONAL SERVICES [7200] IRS NUMBER: 980121376 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-43525 FILM NUMBER: 98737494 BUSINESS ADDRESS: STREET 1: 4126 NORLAND AVE CITY: BURNABY BC CANADA V5 STATE: A1 ZIP: V5G 3S8 BUSINESS PHONE: 6042999321 MAIL ADDRESS: STREET 1: 4126 NORLAND AVE STREET 2: BRITISH COLUMIA CITY: BURNABY V5G 3S8 STATE: A1 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: LOEWEN RAYMOND L & ANNE LOEWEN CENTRAL INDEX KEY: 0000903357 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 4126 NORLAND AVE STREET 2: BURNABY PROVINCE CITY: BROTISH COLUMBIA BUSINESS PHONE: 6042999321 MAIL ADDRESS: STREET 2: 4126 NORLAND AVE., BURNABY PROVINCE CITY: BRITISH COLUMBIA SC 13D/A 1 SCHEDULE 13D/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 5 )1 The Loewen Group Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common shares without par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 54042L 10 0 ---------------------------------------- (CUSIP Number) Tina Swinton Loewen Capital Corporation 4126 Norland Avenue, Burnaby, British Columbia Canada V5G 3S8 (604) 293-9231 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 2, 1998 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box / /. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. (Continued on following pages) - ---------- 1 The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 1 of 9 Pages SCHEDULE 13D
- --------------------------- ------------------------ CUSIP No. 54042 L 10 0 Page 2 of 9 Pages - --------------------------- ------------------------ - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 3546373 Canada Inc. (formerly known as Loewen Financial Inc.) - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Canada - ------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 -------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY -------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 0 WITH -------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES * / / - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0 - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON * CO - ------------------------------------------------------------------------------- - -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D
- -------------------------- ------------------------- CUSIP No. 54042 L 10 0 Page 3 of 9 Pages - -------------------------- ------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Raymond L. Loewen - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* PF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Canada - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 1,477,664 -------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY -------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 1,477,664 WITH -------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,477,664 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES * / X / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.0 - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON * IN - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D
- -------------------------- ------------------------- CUSIP No. 54042 L 10 0 Page 4 of 9 Pages - -------------------------- ------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Anne Loewen - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* PF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Canada - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 2,254,838 ------------------------------------------------------------- 8 SHARED VOTING POWER NUMBER OF SHARES 0 BENEFICIALLY ------------------------------------------------------------- OWNED BY 9 SOLE DISPOSITIVE POWER EACH REPORTING 2,254,838 PERSON ------------------------------------------------------------- WITH 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,254,838 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES * / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.0 - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON * IN - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. ITEM 1. SECURITY AND ISSUER The class of equity securities to which this statement ("Statement") relates is the Common shares without par value ("Common Shares") of The Loewen Group Inc., a corporation organized under the laws of British Columbia, Canada ("TLGI"). TLGI owns and operates more than 1,100 funeral homes and over 500 cemeteries across the United States, Canada and the United Kingdom. The principal executive offices of TLGI are located at 4126 Norland Avenue, Burnaby, British Columbia, Canada V5G 3S8. ITEM 2. IDENTITY AND BACKGROUND This Statement is filed by 3546373 Canada Inc., a corporation organized under the Canada Business Corporations Act and formerly known as Loewen Financial Inc., a corporation organized under the laws of British Columbia, Canada ("LFI"), Raymond L. Loewen, an individual, and Anne Loewen, an individual. Raymond L. Loewen and Anne Loewen are husband and wife. The business address of LFI, Raymond L. Loewen and Anne Loewen is 4126 Norland Avenue, Burnaby, British Columbia, Canada V5G 3S8. Raymond L. Loewen is the sole shareholder and sole director of LFI. The only officers of LFI are Raymond L. Loewen, president, and Tina Swinton, secretary. On October 6, 1998, Mr. Loewen resigned as Chief Executive Officer and President of TLGI. His current principal occupation is Co-Chairman of the TLGI Board of Directors. The principal occupation of Tina Swinton is Vice President, Finance of Loewen Capital Corporation, a corporation organized under the laws of British Columbia, Canada. The principal business address of each of TLGI and Loewen Capital Corporation is 4126 Norland Avenue, Burnaby, British Columbia, Canada V5G 3S8. Anne Loewen is not employed. During the last five years, none of LFI, Raymond L. Loewen, Anne Loewen and Tina Swinton has been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors) or has been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Raymond L. Loewen, Anne Loewen and Tina Swinton are citizens of Canada. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION This Statement is being filed to report the transfer by LFI and Raymond L. Loewen, pursuant to the Sale Agreement (as defined in Item 4 below), of 10,062,125 Common Shares actually owned by them or by certain entities controlled by them. See Item 4 below. Raymond L. Loewen used personal funds to finance his purchases of the 10,743 Common Shares actually owned by him. The remaining 1,466,921 Common Shares beneficially owned by Raymond L. Loewen are shares which Mr. Loewen has the right to acquire within 60 days of November 2, 1998, pursuant to options granted to Mr. Loewen under TLGI's employee stock Page 5 of 9 Pages option plans (the "Stock Options"). Raymond L. Loewen also holds options to acquire an additional 240,300 Common Shares, which options will become exercisable from time to time beginning in May 1999. Under the TLGI 1994 Management Equity Investment Plan, Raymond L. Loewen was granted certain rights, and has certain obligations, to acquire an additional 2,000,000 Common Shares, beginning in June 1999. Anne Loewen used personal funds to finance her purchases of Common Shares. Anne Loewen's most recent purchase of Common Shares was made in February 1994. ITEM 4. PURPOSE OF TRANSACTION Prior to November 2, 1998, an aggregate of 10,062,125 Common Shares beneficially owned by LFI and Raymond L. Loewen (the "Pledged Shares") were pledged to Canadian Imperial Bank of Commerce, a Canadian chartered bank (the "Bank"), pursuant to the Credit Agreement dated as of October 23, 1997, as amended and restated as of August 21, 1998 and further amended as of October 23, 1998 (the "Credit Agreement"). The Pledged Shares were directly held as follows: (i) 836,000 shares by Raymond L. Loewen; (ii) 5,107,600 shares by LFI, (iii) 3,879,325 shares by Loewen Financial Limited Partnership, a limited partnership existing under the laws of Alberta in which LFI owns a 99.78% interest and is the sole general partner ("LFLP"); and (iv) 239,200 shares by Loewen Limited Partnership, a limited partnership existing under the laws of British Columbia in which Raymond L. Loewen owns a 99.99% interest and is the sole general partner ("LLP" and together with LFLP and LFI, the "Loewen Affiliates"). The Loewen Affiliates had guaranteed Raymond L. Loewen's obligations under the Credit Agreement (the "Guarantees"). On November 2, 1998, Raymond L. Loewen, the Loewen Affiliates and the Bank entered into an Agreement (the "Sale Agreement"), pursuant to which the Pledged Shares were transferred to the Bank by way of a sale. The purchase price paid or payable by the Bank for the Pledged Shares is (a) US$91,188,008 (the "Initial Consideration"), plus (b) any Additional Consideration (as defined in Item 6 below) that may become payable under the Amended Credit Agreement (as defined below). A portion of the Initial Consideration was used to repay principal, interest and other amounts owing under the Credit Agreement, and the balance was deposited in a security account (the "Security Account"). The Credit Agreement was amended and restated as of November 2, 1998 (the "Amended Credit Agreement"), to fix the interest rate at 5.27% and to change the collateral securing Raymond L. Loewen's obligations under such agreement. Raymond L. Loewen's obligations to the Bank under the Amended Credit Agreement are secured by amounts held in the Security Account, Mr. Loewen's rights to receive Additional Consideration (as defined in Item 6 below) and certain rights relating to the Stock Options. See Item 6. As of November 2, 1998, the Loewen Affiliates were released from their obligations and liabilities under the Guarantees. The Bank has indicated to Raymond L. Loewen that it intends to seek offers for the sale of the Pledged Shares; however, the Bank has agreed that, prior to December 2, 1998, it will not sell the Pledged Shares for less than US$16 per share, unless (a) the closing price of the Common Shares on the New York Stock Exchange falls below $8 per share or (b) Raymond L. Loewen consents to the sale. The Bank has engaged Raymond L. Loewen to assist and advise the Bank in its efforts to sell the Pledged Shares. See Item 6. Page 6 of 9 Pages Except as stated in this Item 4 and in Item 6, none of the reporting persons has any plans or proposals which would result in any of the events described in Item 4 (a) through (j). ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) After giving effect to the transfer of the Pledged Shares to the Bank, as of November 2, 1998, Raymond L. Loewen beneficially owns 1,477,664 Common Shares, representing 2.0% of the Common Shares outstanding. 1,466,921 of such Common Shares are shares which Raymond L. Loewen has the right to acquire within 60 days of November 2, 1998, pursuant to the Stock Options. Anne Loewen beneficially owns 2,254,838 Common Shares, representing 3.0% of the Common Shares outstanding. Raymond L. Loewen disclaims beneficial ownership of the Common Shares held by Anne Loewen. (b) Raymond L. Loewen has sole voting and dispositive power with respect to the 10,743 Common Shares he actually owns. If Raymond L. Loewen exercises the Stock Options to acquire any of the 1,477,664 Common Shares underlying the Stock Options, he will have sole voting and dispositive power with respect to such shares, except that such powers may be limited by or shared with the Bank if the shares are pledged to the Bank under the Amended Credit Agreement. See Item 6 below. Anne Loewen has sole voting and dispositive power with respect to the 2,254,838 Common Shares she beneficially owns. (c) On November 2, 1998, pursuant to the terms of the Sale Agreement, all of the Pledged Shares were transferred to the Bank. See Items 4 and 6. (d) None of the persons named in paragraph (a) of this Item 5 is aware of any other person who has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Shares currently beneficially owned by Raymond L. Loewen or Anne Loewen. If Common Shares owned or subsequently acquired by Raymond L. Loewen are pledged to the Bank, dividends and distributions paid in respect of such shares must be delivered to the Bank, to be held as additional collateral for Mr. Loewen's obligations under the Amended Credit Agreement. See Item 6 below. (e) As of November 2, 1998, each of LFI and Raymond L. Loewen ceased to be the beneficial owner of more than 5% of the Common Shares outstanding. See Item 4 above. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Pursuant to the Sale Agreement, if the Bank sells the Pledged Shares prior to November 1, 2000 and if the net proceeds from such sale (the "Sale Proceeds") exceed the Initial Consideration, then a portion of such excess proceeds based on the formula set forth in the Sale Agreement ("Additional Consideration") will be credited toward any obligations then payable by Raymond L. Loewen under the Amended Credit Agreement ("Current Obligations"). On November 2, 1998, Raymond L. Loewen and the Bank entered into a letter agreement (the "Fee Agreement") pursuant to which Mr. Loewen has agreed to advise the Bank Page 7 of 9 Pages with respect to the potential sale of the Pledged Shares. Under the Fee Agreement, if the Bank sells the Pledged Shares prior to March 31, 1999 and if the Sale Proceeds exceed the sum of the Initial Consideration and the Current Obligations, Raymond L. Loewen will be entitled to a portion of such excess proceeds, based on the formula set forth in the Fee Agreement. If the market value of the Common Shares exceeds the exercise price of any of the Stock Options and if the Bank loans to Mr. Loewen sufficient funds to pay the aggregate exercise price of such Stock Options, subject to certain exceptions, the Bank may require Mr. Loewen to exercise such Stock Options and acquire the underlying Common Shares. The exercise prices of the Stock Options range from Cdn.$15.75 to Cdn.$42.25. Common Shares acquired by any exercise of Stock Options that is required by the Bank would be pledged to the Bank to secure Raymond L. Loewen's obligations under the Amended Credit Agreement, and the amount advanced to Mr. Loewen to pay the exercise price would be added to the principal amount owing under the Amended Credit Agreement. The foregoing is qualified in its entirety by reference to the Sale Agreement and the Fee Agreement, each of which is filed as an exhibit to this Statement. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 1: Joint Filing Agreement required by Rule 13d-1(f) under the Securities Exchange Act of 1934, as amended* Exhibit 2: Guarantee and Reimbursement Agreement dated June 13, 1995 between Raymond L. Loewen and LFI* Exhibit 3: Agreement dated as of November 2, 1998, between Raymond L. Loewen, LFI, LFLP, LLP and the Bank Exhibit 4: Fee Agreement dated as of November 2, 1998, between Raymond L. Loewen and the Bank - ---------- * Previously filed. Page 8 of 9 Pages SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: November 3, 1998 3546373 Canada Inc. By: /s/ Raymond L. Loewen ----------------------------------------- Name: Raymond L. Loewen --------------------------------------- Title: President -------------------------------------- /s/ Raymond L. Loewen --------------------------------------------- Raymond L. Loewen /s/ Anne Loewen --------------------------------------------- Anne Loewen Page 9 of 9 Pages EX-3 2 SALE AGREEMENT THIS AGREEMENT made the 2nd day of November, 1998 B E T W E E N: RAYMOND L. LOEWEN, a businessman residing in Burnaby, British Columbia, (hereinafter referred to as "LOEWEN"), OF THE FIRST PART, - and - 3546373 CANADA INC. , (formerly Loewen Financial Inc.), a company existing under the laws of Canada, (hereinafter referred to as "LFI") OF THE SECOND PART, - and - LOEWEN FINANCIAL LIMITED PARTNERSHIP, a limited partnership existing under the laws of the Province of Alberta acting through its General Partner, 3546373 CANADA INC. (hereinafter referred to as "LFLP") OF THE THIRD PART, - and - LOEWEN LIMITED PARTNERSHIP, a limited partnership existing under the laws of the Province of British Columbia acting through its General Partner, RAYMOND L. LOEWEN, (hereinafter referred to as "LLP") OF THE FOURTH PART, - and - - 2 - CANADIAN IMPERIAL BANK OF COMMERCE, a Canadian chartered bank, acting through its CIBC Capital Partners Division, (hereinafter referred to in such capacity as the "CIBCCP"), OF THE FIFTH PART. WHEREAS Loewen and CIBCCP are parties to a Second Amended and Restated Credit Agreement made as of November 2, 1998 (the "Loan Agreement"); AND WHEREAS prior to the execution and delivery of this Agreement: (i) LLP transferred to Loewen all of the right, title and interest of LLP to 239,200 common shares (the "Common Shares") in the capital of The Loewen Group Inc., the certificates for which are set forth in Part I of Schedule A hereto (the "LLP Transfer"); (ii) thereafter, LFI transferred to Loewen all of the right, title and interest to 5,107,600 Common Shares, the certificates for which are set forth in Part II of Schedule A hereto (the "LFI Transfer"); and (iii) thereafter, LFLP transferred to LFI all of the right, title and interest of LFLP to 3,879,325 Common Shares, the certificates for which are set forth in Part III of Schedule A hereto and thereafter, LFI transferred to Loewen all of LFI's right, title and interest to such Common Shares (such transfers referred to collectively as the "LFLP Transfer") (the LLP Transfer, the LFI Transfer and the LFLP Transfer being collectively referred to as the "Affiliate Transfers"). AND WHEREAS Loewen wishes to sell, and CIBCCP wishes to purchase, an aggregate of 10,062,125 Common Shares (collectively, the "Purchased Shares") on the terms and subject to the conditions set forth herein; AND WHEREAS the Purchased Shares, details of which are set forth in Schedule A hereto, are currently held by CIBCCP pursuant to the Continuing Loan Documents; NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the covenants and agreements herein contained and for other good and valuable consideration, the parties hereto agree as follows: - 3 - ARTICLE I INTERPRETATION 1.1 DEFINITIONS. In this Agreement, unless something in the subject matter or context is inconsistent therewith: "ADDITIONAL CONSIDERATION" shall be calculated on the Sale Date (or if there is more than one on the last Sale Date) and means the lesser of: (i) the amount, if any, by which (A) the Sale Price shall exceed (B) the Initial Consideration together with an amount equal to interest that would accrue on the Initial Consideration at the rate of 5.27% per annum calculated from and including the date hereof to but excluding the Sale Date and compounded quarterly; and (ii) the aggregate amount of the Obligations on that date (including accrued and unpaid interest), less the amount then credited to the Cash Security Account; "AFFILIATE TRANSFERS" has the meaning ascribed thereto in the recitals to this Agreement; "COMMON SHARES" has the meaning ascribed thereto in the recitals to this Agreement; "CURRENT OBLIGATIONS" means the amount of US$144,949,603, such amount being the aggregate amount of the Obligations outstanding as at the date hereof before giving effect to this Agreement consisting of (i) US$144,303,715 (such amount being the principal amount of the indebtedness of Loewen under the Loan Agreement) and (ii) US$645,888 (such amount being equal to the accrued but unpaid interest under the Loan Agreement to the date hereof); "INITIAL CONSIDERATION" has the meaning ascribed thereto in Section 2.1(b)(i); "LOAN AGREEMENT" has the meaning ascribed thereto in the recitals to this Agreement; "LOEWEN AFFILIATES" means, collectively, LFI, LFLP and LLP; "LOEWEN PARTIES" means, collectively, Loewen and the Loewen Affiliates; "PURCHASED SHARES" has the meaning ascribed thereto in the recitals to this Agreement; "RELATED PARTY" means a person not dealing at arm's length with CIBCCP for the purposes of the INCOME TAX ACT (Canada); - 4 - "SALE DATE" means the date, if any, on which a Sale of the Purchased Shares shall be completed; "SALE PRICE" means the aggregate amount or value of consideration received by CIBCCP (or a Related Person as provided in Section 1.5) for the Purchased Shares as a result of the Sale of the Purchased Shares net of all fees, expenses and commissions paid or incurred by CIBCCP or such Related Person in connection therewith; and "SALE OF THE PURCHASED SHARES" means a bona fide sale or sales of the Purchased Shares made by CIBCCP (or a Related Person as provided in Section 1.5) subsequent to the date hereof and on or prior to November 1, 2000 to a person or persons other than a Related Person; 1.2 OTHER DEFINITIONS. Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Loan Agreement. 1.3 SECTIONS AND HEADINGS. The division of this Agreement into Articles and Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms "this Agreement", "hereof", "hereunder" and similar expressions refer to this Agreement and not to any particular Article, Section or other portion hereof and include any agreement or instrument supplemental or ancillary hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to Articles and Sections are to Articles and Sections of this Agreement. 1.4 NUMBER. Words importing the singular number only shall include the plural and VICE VERSA, words importing the masculine gender shall include the feminine and neuter genders and VICE VERSA and words importing persons shall include individuals, partnerships, associations, trusts, unincorporated organizations and corporations and VICE VERSA. 1.5 TRANSFERS TO RELATED PERSONS. For the purposes of this Agreement, a sale or other transfer of any of the Purchased Shares by CIBCCP to a Related Person or by a Related Person to another Related Person shall be deemed not to be a Sale of the Purchased Shares; provided that any sale of Purchased Shares by any such Related Person to a person which is not a Related Person completed on or prior to November 2, 2000 shall be deemed to be a Sale of the Purchased Shares by CIBCCP for the purposes of the calculation of the Additional Consideration; - 5 - ARTICLE II SALE OF PURCHASED SHARES 2.1 PURCHASE AND SALE OF PURCHASED SHARES. (a) Subject to the terms and conditions hereof, Loewen hereby sells, assigns and transfers to CIBCCP, and CIBCCP hereby purchases from Loewen, all of the Purchased Shares. (b) The aggregate purchase price (the "Purchase Price") for the Purchased Shares shall be the aggregate of: (i) US$91,188,008 (the "Initial Consideration") which shall be paid and satisfied as provided in Section 2.2; and (ii) the Additional Consideration, if any, which shall be paid and satisfied as provided in Section 2.3. 2.2 PAYMENT OF INITIAL CONSIDERATION. The Initial Consideration shall be paid and satisfied contemporaneously with the execution and delivery of this Agreement as follows: (a) as to US$86,606,996 by applying thereto an equal amount of the Obligations and, it is hereby agreed that by reason of such application the Obligations are reduced by the amount so applied; and (b) as to US$4,581,012 by crediting such amount to the Cash Security Account. 2.3 PAYMENT OF ADDITIONAL CONSIDERATION. The Additional Consideration, if any, shall only be payable on the Sale Date (or if there is more than one on the last Sale Date) if a Sale of the Purchased Shares occurs on or prior to November 1, 2000 and shall be satisfied by CIBCCP applying thereto an equal amount of the Obligations then outstanding such that the aggregate amount of the Obligations shall be reduced by the amount of the Additional Consideration. 2.4 DELIVERY OF PURCHASED SHARES. It is hereby agreed that the Purchased Shares shall be deemed to be delivered to CIBCCP as the buyer thereof contemporaneously with the execution and delivery of this Agreement free and clear of all Liens (including the Lien of the Security Documents). - 6 - ARTICLE III REPRESENTATIONS AND DELIVERIES 3.1 REPRESENTATIONS OF LOEWEN PARTIES. Each Loewen Party, jointly and severally, represents and warrants as follows to CIBCCP and acknowledges and confirms that CIBCCP is relying upon such representations and warranties: (a) AUTHORIZATION. This Agreement and the Affiliate Transfers have been duly authorized (in the case of each Loewen Affiliate in relation to the Agreement), executed and delivered by each Loewen Party and constitutes the legal, valid and binding obligation of each Loewen Party enforceable against such Loewen Party in accordance with its terms. (b) CONFLICT WITH CONSTATING DOCUMENTS AND AGREEMENTS. Neither the execution and delivery by a Loewen Party of this Agreement nor the consummation by any such Loewen Party of any of the transactions contemplated hereby nor the compliance by any such Loewen Party with the terms, conditions and provisions hereof nor the consummation by any Loewen Party of the Affiliate Transfers, conflicts with or results in a breach of any of the terms, conditions or provisions of: (i) in the case of a Loewen Affiliate, the partnership agreement or constating documents or by-laws of any such Loewen Affiliate; (ii) any agreement, instrument or arrangement to which any such Loewen Party is now a party or by which it, or its properties are, or may be, bound, or constitutes a default thereunder; (iii) any judgment or order, writ, injunction, decree or ruling of any Official Body; or (iv) any applicable law. (c) NO OTHER AUTHORIZATION NECESSARY. No action of, or filing with, any Official Body is or was required to authorize, or is or was otherwise required in connection with, the Affiliate Transfers or the execution, delivery and performance by any Loewen Party of this Agreement or the completion of any transaction contemplated thereby. (d) STATUS AND POWER. LFI is a company duly continued and validly subsisting under the CANADA BUSINESS CORPORATIONS ACT; LLP is a limited partnership duly constituted and organized and validly subsisting under the laws of the Province of British Columbia; LFLP is a limited partnership duly constituted, organized and validly subsisting under the laws of the Province of Alberta; each Loewen Affiliate has adequate and sufficient power and authority to execute, deliver and perform its obligations under - 7 - this Agreement and to undertake any transaction contemplated thereby (including the Affiliate Transfers). (e) PURCHASED SHARES. The Purchased Shares are beneficially owned by Loewen and Loewen has good and marketable title thereto, free and clear of all Liens other than Liens created by the Security Documents. (f) CONTROL. The Loewen Parties, together with the Associates of the Loewen Parties and any other Person with whom the Loewen Parties or their Associates are acting jointly or in concert or who is part of a group established for the purpose of holding, disposing, acquiring or voting of any securities of the Corporation (or securities convertible into or exchangeable or exercisable for securities of the Corporation) do not own more than 20% of the issued and outstanding Voting Securities of the Corporation. (g) NO MATERIAL FACTS. None of the Loewen Parties has knowledge of any material fact or material change (as such terms are defined under applicable Canadian securities laws) relating to the Corporation or the Purchased Shares that has not been generally disclosed. 3.2 NATURE OF REPRESENTATIONS AND WARRANTIES. The representations and warranties set out in Section 3.1 shall survive the execution and delivery of this Agreement and CIBCCP shall be deemed to have relied on the making of such representations and warranties. 3.3 DELIVERIES. Contemporaneously with the execution and delivery of this Agreement, the Loewen Parties shall deliver to CIBCCP the following, in form and terms reasonably satisfactory to CIBCCP: (a) copies of all agreements, documents and corporate and partnership proceedings, authorizing the implementation by any of the Loewen Parties, or otherwise relating to, the Affiliate Transfers and this Agreement; and (b) a legal opinion or legal opinions as to the due authorization, execution and delivery of this Agreement by the Loewen Parties and as to the legality, validity, binding nature and enforceability of this Agreement against each of the Loewen Parties. - 8 - ARTICLE IV GENERAL 4.1 COSTS AND EXPENSES. The Loewen Parties agree that CIBCCP may deduct from the amount held in the Cash Security Account an amount equal to all reasonable costs and expenses incurred by the CIBCCP in connection with negotiation, preparation, execution, delivery and administration of this Agreement including, without limitation, the fees and out-of-pocket expenses of counsel to CIBCCP. 4.2 INDEMNIFICATION BY THE LOEWEN PARTIES. Each Loewen Party, jointly and severally, shall indemnify CIBCCP from and against all losses, liabilities, damages, penalties, costs and expenses (excluding consequential damages and loss of profits) ("Losses"), imposed on or incurred or suffered by CIBCCP or any of its directors, officers, employees or agents as a consequence of or relating to or arising out of any inaccuracy or breach by any Loewen Party of its representations and warranties or any of its covenants contained herein, including Losses arising under any applicable securities laws or stock exchange rules, or in relation to any investigation or proceeding thereunder, as a result of CIBCCP's reliance upon any such representations, warranties or covenants in connection with any disposition of any Purchased Shares. 4.3 SURVIVAL. All covenants, agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement and shall continue in full force and effect without limitation in time. 4.4 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. 4.5 COURTS. Any legal action or proceeding with respect to this Agreement may be brought in the courts of the Province of Ontario or British Columbia which courts the parties hereto acknowledge irrevocably to be a convenient forum for the resolution of any such legal action or proceeding. Each Loewen Party hereby accepts, for himself or itself and in respect of his or its assets and revenues, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts. 4.6 FURTHER ASSURANCES. Each Loewen Party, at its expense, will promptly execute and deliver, to CIBCCP, upon request, all such other and further documents, agreements, certificates and instruments in compliance with, or accomplishment of the covenants, and agreements of the Loewen Parties under this Agreement or more fully to state the obligations of the Loewen Parties as set out therein or to make any recording, file any notice or obtain any consents, all as may be necessary or appropriate in connection therewith. 4.7 EXECUTION IN COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be considered an original and all of which counterparts taken together shall constitute a single agreement. - 9 - 4.8 ASSIGNMENTS AND TRANSFER. This Agreement shall be binding upon and enure to the benefit of Loewen and his heirs, representatives and executors and on each Loewen Affiliate and its successors. This Agreement shall be binding upon and enure to the benefit of CIBCCP and its successors and assigns. No Loewen Party shall have the right to assign its rights or obligations hereunder. CIBCCP may from time to time may assign all of or any undivided portion of its rights and obligations under this Agreement to any Person on such terms and conditions as CIBCCP shall approve in its sole discretion. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed on November 2, 1998. SIGNED, SEALED AND ) DELIVERED in the ) presence of: ) ----------------------------------- ) Raymond L. Loewen ) 3546373 CANADA INC. by ------------------------------------- Raymond L. Loewen President 3546373 CANADA INC. in its capacity as general partner of and on behalf of LOEWEN FINANCIAL LIMITED PARTNERSHIP by ------------------------------------- Raymond L. Loewen President RAYMOND L. LOEWEN, in his capacity as general partner of and on behalf of LOEWEN LIMITED PARTNERSHIP -------------------------------- - 10 - CANADIAN IMPERIAL BANK OF COMMERCE (acting through CIBC CAPITAL PARTNERS DIVISION) By: ------------------------------------------ ------------------------------------------ EX-4 3 FEE AGREEMENT [LETTERHEAD OF CANADIAN IMPERIAL BANK OF COMMERCE] November 2, 1998 Raymond L. Loewen 4126 Norland Avenue Burnaby, BC V6G 3S8 Dear Mr. Loewen: SALE OF 10,062,125 COMMON SHARES OF THE LOEWEN GROUP INC. Pursuant to an agreement made the date hereof between you, 3546373 Canada Inc. (formerly Loewen Financial Inc.), Loewen Financial Limited Partnership, Loewen Limited Partnership and Canadian Imperial Bank of Commerce acting through its CIBC Capital Partners Division ("CIBCCP"), CIBCCP purchased 10,062,125 common shares (such common shares collectively, the "Block") of The Loewen Group Inc. CIBC hereby confirms that its current intention is to seek offers for the sale of the Block and wishes to obtain your advice and assistance from time to time at its request in connection therewith (such advise and assistance, the "Services"). As part of the Services, you will promptly notify CIBCCP of any potential purchasers of the Block of which you become aware and will, if and to the extent requested by CIBCCP, assist CIBCCP in any discussions or negotiations with any potential purchasers of the Block whether or not identified by you. You will not, however, without the prior consent of CIBCCP, solicit any offers for the purchase of the Block or initiate any discussions with any potential purchasers of the Block. In addition, you will not take or participate in any action which would prevent or otherwise adversely affect the obtaining offers for or the sale of the Block or adversely affect the market value of the Block. All information which you obtain in carrying out the Services (whether obtained from CIBCCP or a potential purchaser) shall be confidential and you will not disclose any such information to any person other than CIBCCP or persons designated by CIBCCP. Notwithstanding the foregoing provisions of this paragraph, in no event shall you be obliged to do any act or thing that would constitute a breach of any fiduciary or similar duty you owe to The Loewen Group Inc. Your retainer hereunder shall commence on the date hereof and shall end on the earlier of (i) the date on which CIBCCP closes its sale of the Block (the "Sale Date") and (ii) March 31, 1999. - 2 - In consideration for your providing the Services, CIBCCP will pay to you a fee (plus any applicable goods and services tax) in an amount equal to 20% of the amount, if any, by which: (i) its net cash proceeds (after all reasonable fees, commissions and out-of-pocket expenses, including fees of counsel) from the sale of all or any portion of the Block; shall exceed (ii) the sum of (a) US $91,188,008; (b) US $58,342,607 less the amount standing to your credit in the Cash Security Account (as such term is defined in the Second Amended and Restated Credit Agreement made as of November 2, 1998 between you and CIBCCP) on the Sale Date; and (c) amount of interest that would accrue on the amount referred to in item (a) from and including the date hereof to but excluding the Sale Date at the rate of 5.27% per annum calculated and compounded quarterly, provided, however, that CIBCCP shall not be obliged to make any payment to you if the Sale Date shall not have occurred on or prior to March 31, 1999 unless CIBCCP has, before April 1, 1999, entered into an agreement to sell the Block and all government approvals and other conditions to such sale have not been obtained or satisfied before April 1, 1999. CIBCCP's current intention is to solicit only all-cash offers for the Block; provided however that if it decides to accept an offer for the Block involving non-cash consideration in whole or in part, the fee payable to you hereunder will be calculated with reference to the fair market value of such non-cash consideration. Until the earlier of (i) December 2, 1998 and (ii) the date on which closing price for common shares in the capital of the Corporation on the New York Stock Exchange (or if not listed or traded on the New York Stock Exchange, the Equivalent Amount in U.S. Dollars of the closing price for the common shares on The Toronto Stock Exchange or if not listed or traded or The Toronto Stock Exchange, on the Montreal Exchange) is less than US$8.00, CIBCCP agrees that it will not sell, assign or transfer the Block for consideration of less than US$16.00 per share without your prior agreement to such sale. It is agreed that until November 12, 1998 (or such earlier date as is referred to in item (ii) of the preceding paragraph) CIBCCP will not solicit offers for the Block from any persons other than the persons listed on Schedule A hereto; provided that nothing contained herein shell prevent CIBCCP from negotiating or discussing the sale of the Block during such period with any person who may contact CIBCCP on an unsolicited basis for such purpose. After the expiry of such period, CIBCCP may solicit offers for the Block from any person which it considers to be a prospective purchaser of the Block. - 3 - For greater certainty, it is agreed that if CIBCCP sells or otherwise transfers the Block to a person or persons with whom it does not deal at arm's length for the purposes of the INCOME TAX ACT (Canada) (collectively the "Related Party"), no fee shall be payable to you in respect of any such sale or transfer to the Related Party but CIBCCP shall continue to be obliged to pay you for the Services and the amount of your fee shall be determined on the basis of any sale of the Block by the Related Party as if the Related Party were CIBCCP. If you agree to provide the Services on the terms and subject to the conditions contained herein, please sign and return to us one signed copy of this letter. Yours truly, CANADIAN IMPERIAL BANK OF COMMERCE acting through its CIBC CAPITAL PARTNERS DIVISION by ----------------------------- ----------------------------------- ------------------------------------- I agree to provide the Services on the terms and subject to the conditions set out above. Dated the 2nd day of November, 1998. SIGNED, SEALED AND DELIVERED ) in the presence of ) ) ) ) ----------------------------------- ) Raymond L. Loewen -----END PRIVACY-ENHANCED MESSAGE-----