As filed with the Securities and Exchange Commission on August 31, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
CARRIAGE SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 76-0423828
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1300 Post Oak Blvd., Suite 1500
Houston, Texas 77056
(Address of principal executive offices, including zip code)
1998 STOCK OPTION PLAN FOR CONSULTANTS
(Full title of the plan)
Melvin C. Payne
Chief Executive Officer
1300 Post Oak Blvd., Suite 1500
Houston, Texas 77056
(Name and address of agent for service)
(281) 556-7400
(Telephone number, including area code, of agent for service)
Copy to:
John T. Unger
Snell & Smith, P.C.
1000 Louisiana, Suite 1200
Houston, Texas 77002
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE OFFERING PRICE(1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.01 par value 100,000 shares $20.875 $2,087,500 $615.81
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in the registration
statement:
(a) The latest annual report on Form 10-K of Carriage Services, Inc., a
Delaware corporation (the "Company"), or, if financial statements therein are
more current, the Company's latest prospectus, other than the prospectus of
which this document is a part, filed pursuant to rule 424(b) or (c) of the
Securities and Exchange Commission under the Securities Act of 1933.
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the fiscal year covered by the annual report or prospectus referred to in (a)
above.
(c) The description of the Company's Class A Common Stock which is
contained in the Company's registration statement filed under Section 12 of the
Exchange Act, including any amendment or reports filed for the purpose of
updating such descriptions.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the effective date
of this Registration Statement, prior to the filing of a post-effective
amendment to this Registration Statement indicating that all securities offered
hereby have been sold or deregistering all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement contained herein or in
any document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company, a Delaware corporation, is empowered by Section 145 of the
Delaware General Corporation Law (the "DGCL"), subject to the procedures and
limitations stated therein, to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee
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or agent of another corporation or other enterprise, against reasonable expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually incurred by him in connection with such action, suit or proceeding, if
such director, officer, employee or agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The Company is required by Section 145 to
indemnify any person against reasonable expenses (including attorneys' fees)
actually incurred by him in connection with an action, suit or proceeding in
which he is a party because he is or was a director, officer, employee or agent
of the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or other enterprise, if he has
been successful, on the merits or otherwise, in the defense of the action, suit
or proceeding. Section 145 also allows a corporation to purchase and maintain
insurance on behalf of any such person against any liability asserted against
him in any such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify him against such liability
under the provisions of Section 145. In addition, Section 145 provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of shareholders or disinterested directors, or otherwise.
Article 10 of the Company's Amended and Restated Certificate of
Incorporation (the "Charter") provides that the Company shall indemnify and hold
harmless any person who was, is, or is threatened to be made a party to a
proceeding by reason of the fact that he or she (i) is or was a director or
officer of the Company or (ii) while a director or officer of the Company, is or
was serving at the request of the Company as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL. The right to indemnification under
Article 10 of the Charter is a contract right which includes, with respect to
directors and officers, the right to be paid by the Company the expenses
incurred in defending any such proceeding in advance of its disposition.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
3.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the Year Ended December 31, 1996).
3.2 Certificate of Amendment dated May 9, 1996 (incorporated by
reference to Exhibit 10.2 to the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1997).
3.3 Certificate of Decrease, reducing the authorized Series D Preferred
Stock (incorporated by reference to Exhibit 10.3 to the Company's
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Quarterly Report on Form 10-Q for the quarter ended September 30,
1997).
3.4 Certificate of Decrease, reducing the authorized Series F Preferred
Stock (incorporated by reference to Exhibit 10.4 to the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1997).
3.5 Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement on
Form S-1 (Registration No.333-5545).
5.1 Opinion of Snell & Smith, A Professional Corporation.
10.1 1998 Stock Option Plan for Consultants.
23.1 Consent of Arthur Andersen L.L.P.
23.2 Consent of Snell & Smith, A Professional corporation (included in
Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page to this
Registration Statement).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
(c) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 31st day of August,
1998.
CARRIAGE SERVICES, INC.
By /s/ MELVIN C. PAYNE
Melvin C. Payne
Chairman of the Board and
Chief Executive Officer
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Melvin C. Payne, Mark W. Duffey, and Thomas C.
Livengood or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the 31st day of August, 1998.
SIGNATURE TITLE
/s/ MELVIN C. PAYNE Chairman of the Board, Chief Executive
Melvin C. Payne Officer and Director (Principal Executive
Officer)
/s/ MARK W. DUFFEY President and Director
Mark W. Duffey
/s/ THOMAS C. LIVENGOOD Executive Vice President, Chief Financial
Thomas C. Livengood Officer and Secretary (Principal Financial
and Accounting Officer)
/s/ C. BYRON SNYDER Director
C. Byron Snyder
/s/ BARRY K. FINGERHUT Director
Barry K. Fingerhut
/s/ RONALD A. ERICKSON Director
Ronald A. Erickson
/s/ ROBERT D. LARRABEE Director
Robert D. Larrabee
/s/ STUART W. STEDMAN Director
Stuart W. Stedman
/s/ MARK F. WILSON Director
Mark F. Wilson
/s/ GREG M. BRUDNICKI Director
Greg M. Brudnicki
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EXHIBIT INDEX
EXHIBIT PAGE
3.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1996).
3.3 Certificate of Decrease, reducing the authorized Series D
Preferred Stock (incorporated by reference to
Exhibit 10.3 to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1997).
3.4 Certificate of Decrease, reducing the authorized Series F
Preferred Stock (incorporated by reference to
Exhibit 10.4 to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1997).
3.5 Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (Registration No.333-5545).
5.1 Opinion of Snell & Smith, A Professional Corporation. 8
10.1 1998 Stock Option Plan for Consultants. 9
23.1 Consent of Arthur Andersen L.L.P. 13
23.2 Consent of Snell & Smith, A Professional Corporation
(included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page to this
Registration Statement).
7
EXHIBIT 5.1
[SNELL & SMITH LETTERHEAD]
August 31, 1998
Carriage Services, Inc.
1300 Post Oak Blvd., Suite 1500
Houston, Texas 77056
Ladies and Gentlemen:
We have acted as counsel for Carriage Services, Inc., a Delaware
corporation (the "Company"), with respect to certain legal matters in connection
with the registration by the Company under the Securities Act of 1933, as
amended (the "Securities Act"), of the offer and sale of up to 100,000 shares of
Class A Common Stock, par value $.01 per share (the "Shares"), for issuance
under the Company's 1998 Stock option Plan for Consultants.
In connection with the foregoing, we have examined or are familiar with
the Amended and Restated Certificate of Incorporation of the Company, the
Amended and Restated Bylaws of the Company, the 1998 Stock Option Plan for
Consultants, the corporate proceedings with respect to the registration of the
Shares, and the Registration Statement on Form S-8 filed in connection with the
registration of the Shares (the "Registration Statement"), and such other
certificates, instruments, and documents as we have considered necessary or
appropriate for purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and when issued by the Company pursuant to the 1998 Stock Option
Plan for Consultants will be validly issued, fully paid, and non-assessable.
The foregoing opinion is limited to the laws of the United States of
America and the State of Texas and to the General Corporation Law of the State
of Delaware. For purposes of this opinion, we assume that the Shares will be
issued in compliance with all applicable state securities or Blue Sky laws.
Certain shareholders in this firm own an aggregate 4,000 shares of Class A
Common Stock of the Company and hold options to purchase 10,000 shares of Class
A Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act and the rules and regulations thereunder.
Very truly yours,
/s/ SNELL & SMITH, P.C.
Snell & Smith, A Professional Corporation
8
EXHIBIT 10.1
CARRIAGE SERVICES, INC.
1998 STOCK OPTION PLAN FOR CONSULTANTS
I. PURPOSE OF THE PLAN
The CARRIAGE SERVICES, INC. 1998 STOCK OPTION PLAN FOR
CONSULTANTS (the "Plan") is intended to promote the interests of CARRIAGE
SERVICES, INC., a Delaware corporation (the "Company"), and its stockholders by
aligning the interests of certain independent contractors who, directly or
through intermediaries, provide personal services to the Company and its
subsidiaries ("Eligible Consultants") in the development and financial success
of the Company. Accordingly, the Company may grant to Eligible Consultants
("Optionees") the option ("Option") to purchase shares of the Class A Common
Stock, $.01 par value, of the Company ("Stock"), as hereinafter set forth.
Options granted under the Plan shall be options which do not constitute
incentive stock options, within the meaning of section 422(b) of the Internal
Revenue Code of 1986, as amended (the "Code").
II. ADMINISTRATION
The Plan shall be administered by the Board of Directors of the Company
(the "Board"), unless the Board, in its sole discretion, delegates the authority
for administration of the Plan to a committee thereof. The Board shall have sole
authority to select the Optionees from among Eligible Consultants and to
establish the number of shares which may be issued under each Option. The Plan
is reserved exclusively for Eligible Consultants; without limiting the
generality of the foregoing, in no event shall persons be eligible to receive
Options hereunder who, at the time of grant of an Option, are employees or
directors of the Company or one or more of its subsidiaries. The preceding
sentence shall not, however, disqualify an Optionee from continuing to hold
Options granted hereunder if, subsequent to the date of grant, such Optionee
becomes such an employee or director.
In selecting the Optionees from among Eligible Consultants and in
establishing the number of shares that may be issued under each Option, the
Board may take into account the nature of the services rendered by such
individuals, their present and potential contributions to the Company's success
and such other factors as the Board in its discretion shall deem relevant. The
Board is authorized to interpret the Plan and may from time to time adopt such
rules and regulations, consistent with the provisions of the Plan, as it may
deem advisable to carry out the Plan. All decisions made by the Board in
selecting the Optionees, in establishing the number of shares which may be
issued under each Option and in construing the provisions of the Plan shall be
final.
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III. OPTION AGREEMENTS
Each Option shall be evidenced by a written agreement (an "Option
Agreement"). Options shall not be exercisable after the expiration of ten years
from the date of grant thereof unless otherwise specified in an Option
Agreement. Each Option Agreement shall provide that an Option and all rights
granted thereunder shall not be transferable otherwise than (i) by will or the
laws of descent and distribution, (ii) pursuant to a qualified domestic
relations order as defined by the Code or Title I of the Employee Retirement
Income Security Act of 1974, as amended or (iii) with the consent of the Board.
IV. SHARES SUBJECT TO THE PLAN
The aggregate number of shares which may be issued under Options granted
under the Plan shall not exceed 100,000 shares of Stock. Such shares may consist
of authorized but unissued shares of Stock or previously issued shares of Stock
reacquired by the Company. Any of such shares which remain unissued and which
are not subject to outstanding Options at the termination of the Plan shall
cease to be subject to the Plan, but, until termination of the Plan, the Company
shall at all times make available a sufficient number of shares to meet the
requirements of the Plan. Should any Option hereunder expire or terminate prior
to its exercise in full, the shares theretofore subject to such Option may again
be subject to an Option granted under the Plan. Exercise of an Option shall
result in a decrease in the number of shares of Stock which may thereafter be
available by the number of shares as to which the Option is exercised.
V. OPTION PRICE
The purchase price of Stock issued under each Option hereunder shall be the
fair market value of the Stock subject to the Option as of the date the Option
is granted. For all purposes under the Plan, the fair market value of a share of
Stock on a particular date shall be equal to the mean of the closing price of
the Stock (i) reported by the National Market System of NASDAQ on that date or
(ii) if the Stock is listed on a national stock exchange, reported on the stock
exchange composite tape on that date; or, in either case, if no prices are
reported on that date, on the last preceding date on which such prices of the
Stock are so reported. If the Stock is traded over the counter at the time a
determination of its fair market value is required to be made hereunder, its
fair market value shall be deemed to be equal to the average between the
reported high and low or closing bid and asked prices of Stock on the most
recent date on which Stock was publicly traded. In the event Stock is not
publicly traded at the time a determination of its value is required to be made
hereunder, the determination of its fair market value shall be made by the Board
in such manner as it deems appropriate.
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VI. TERM OF PLAN
The Plan shall became effective upon its adoption by the Board. Except
with respect to Options then outstanding, if not sooner terminated under the
provisions of Paragraph VIII, the Plan shall terminate upon and no further
Options shall be granted after February 4, 2008.
VII. RECAPITALIZATION OR REORGANIZATION
A. The existence of the Plan and the Options granted hereunder shall not
affect in any way the right or power of the Board or the stockholders of the
Company to make or authorize any adjustment, recapitalization, reorganization or
other change in the Company's capital structure or its business, any merger or
consolidation of the Company, any issue of debt or equity securities, the
dissolution or liquidation of the Company or any sale, lease, exchange or other
disposition of all or any part of its assets or business or any other corporate
act or proceeding.
B. The shares with respect to which Options may be granted are shares of
Stock as presently constituted, but if, and whenever, prior to the expiration of
an Option theretofore granted, the Company shall effect a subdivision or
consolidation of shares of Stock or the payment of a stock dividend on Stock
without receipt of consideration by the Company, the number of shares of Stock
with respect to which such Option may thereafter be exercised (i) in the event
of an increase in the number of outstanding shares shall be proportionately
increased, and the purchase price per share shall be proportionately reduced,
and (ii) in the event of a reduction in the number of outstanding shares shall
be proportionately reduced, and the purchase price per share shall be
proportionately increased.
C. If the Company recapitalizes, reclassifies its capital stock, or
otherwise changes its capital structure (a "recapitalization"), the number and
class of shares of Stock covered by an Option theretofore granted shall be
adjusted so that such Option shall thereafter cover the number and class of
shares of stock and securities to which the Optionee would have been entitled
pursuant to the terms of the recapitalization if, immediately prior to the
recapitalization, the Optionee had been the holder of record of the number of
shares of Stock then covered by such Option.
D. Any adjustment provided for in Subparagraphs B or C above shall be
subject to any required stockholder action.
E. Except as hereinbefore expressly provided, the issuance by the Company
of shares of stock of any class or securities convertible into shares of stock
of any class, for cash, property, labor or services, upon direct sale, upon the
exercise of rights or warrants to subscribe therefor, or upon conversion of
shares or obligations of the Company convertible into such shares or other
securities, and in any case whether or not for fair value, shall not affect, and
no adjustment by reason thereof shall be made with respect to, the number of
shares of Stock subject to Options theretofore granted or the purchase price per
share.
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VIII. AMENDMENT OR TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan at any time with
respect to any shares for which Options have not theretofore been granted. The
Board shall have the right to alter or amend the Plan or any part thereof from
time to time; provided, that no change in any Option theretofore granted may be
made which would impair the rights of the Optionee without the consent of such
Optionee.
IX. SECURITIES LAWS
A. The Company shall not be obligated to issue any Stock pursuant to any
Option granted under the Plan at any time when the offering of the shares
covered by such Option have not been registered under the Securities Act of
1933, as amended, and such other state and federal laws, rules or regulations as
the Company deems applicable and, in the opinion of legal counsel for the
Company, there is no exemption from the registration requirements of such laws,
rules or regulations available for the offering and sale of such shares.
B. It is intended that no Option shall be granted under the Plan to a
person who is subject to Section 16 of Securities Exchange Act of 1934, as
amended (the "1934 Act"). If, however, any Optionee becomes subject to said
Section 16, the Board shall take all reasonable steps, if any, within its
control, so as to cause the Plan to meet all of the requirements of Rule 16b-3,
as currently in effect or as hereinafter modified or amended ("Rule 16b-3"),
promulgated under the 1934 Act. In such event, if any provision of the Plan or
any such Option would disqualify the Plan or such Option under, or would
otherwise not comply with, Rule 16b-3, such provision or Option shall be
construed or deemed amended to conform to Rule 16b-3.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 10,
1998, included in Carriage Services, Inc.'s Form 10-K for the year ended
December 31, 1997, and all references to our Firm included in this registration
statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Houston, Texas
August 31, 1998
13
