As filed with the Securities and Exchange Commission on March 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)
1997 EMPLOYEE STOCK PURCHASE PLAN
(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
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed maximum
securities to be Amount to be aggregate Amount of
registered registered offering price (1) registration fee
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Class A Common Stock, $.01 1,000,000 shares $21,457,500 $6,324.06
par value
- ---------------------------------------------------------------------------------------------
</TABLE>
(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933.
Page 1
<PAGE>
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 are
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
(filed with the Commission as Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the Year Ended December 31, 1996, and
incorporated herein by reference).
3.2 Restated Bylaws of the Company (filed with the Commission as Exhibit
3.2 to the Company's Registration Statement on Form S-1
(Registration No.333-5545) and incorporated herein by reference).
3
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5.1 Opinion of Snell & Smith, A Professional Corporation.
10.1 1997 Employee Stock Purchase Plan
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.
(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
4
<PAGE>
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 31 day of March,
1998.
CARRIAGE SERVICES, INC.
By /s/ MELVIN C. PAYNE
Melvin C. Payne
Chairman of the Board and
Chief Executive Officer
5
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark W. Duffey and Thomas C. Livengood or either
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 31 day of March, 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
6
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EXHIBIT INDEX
Exhibit Page
3.1 Amended and Restated Certificate of Incorporation of the
Company (filed with the Commission as Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1996, and incorporated herein by reference).
3.2 Restated Bylaws of the Company (filed with the
Commission as Exhibit 3.2 to the Company's
Registration Statement on Form S-1 (registration
No. 333-5545) and incorporated herein by
reference).
5.1 Opinion of Snell & Smith, A Professional Corporation. 8
10.1 1997 Employee Stock Purchase Plan 9
23.1 Consent of Arthur Andersen L.L.P. 17
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]
March 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 1,000,000 shares
of Class A Common Stock, par value $.01 per share (the "Shares"), for issuance
under the Company's Employee Stock Purchase Plan.
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 Employee Stock Puchase Plan, 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 pursunt to the Employee Stock
Purchase Plan 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.
1997 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1997 Employee Stock Purchase Plan
of Carriage Services, Inc..
1. PURPOSE. The purpose of the Plan is to provide employees of the Company
and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company. It is the intention of the Company to have the
Plan qualify as an "Employee Stock Purchase Plan" under Section 423 of
the Internal Revenue Code of 1986, as amended. The provisions of the
Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirements of that
section of the Code.
2. DEFINITIONS.
a) "BOARD" shall mean the Board of Directors of the Company.
b) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
c) "COMMON STOCK" shall mean the Class A Common Stock, $.01 par
value, of the Company.
d) "COMPANY" shall mean Carriage Services, Inc., a Delaware
corporation.
e) "COMPENSATION" shall mean all regular straight time gross
earnings, overtime bonuses, incentive pay and commissions.
f) "CONTINUOUS STATUS AS AN EMPLOYEE" shall mean the absence of any
interruption or termination of service as an Employee.
Continuous Status as an Employee shall not be considered
interrupted in the case of a leave of absence agreed to in
writing by the Company, provided that such leave is for a period
of not more than 90 days or reemployment upon the expiration of
such leave is guaranteed by contract or statute.
g) "CONTRIBUTIONS" shall mean all amounts credited to the account
of a participant pursuant to the Plan.
h) "DESIGNATED SUBSIDIARIES" shall mean the Subsidiaries which have
been designated by the Board from time to time in its sole
discretion as to which their employees are eligible to
participate in the Plan.
i) "EMPLOYEE" shall mean any person, including an Officer, who is
employed by the Company or one of its Designated Subsidiaries.
j) "ENTRY DATE" shall mean the date an employee first commences
participation in the Plan. Possible Entry Dates are the
beginning of the Offering Period or the beginning of a Purchase
Period within that Offering Period.
k) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
l) "EXERCISE DATE" shall mean the last day of each Purchase Period
of the Plan.
m) "PURCHASE DATE" shall mean the last day of each Purchase Period
of the Plan.
n) "OFFERING DATE" shall mean the first business day of each
Offering Period of the Plan.
9
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o) "OFFERING PERIOD" shall mean a period of one (1) year commencing
on January 1 of each year except as otherwise indicated by the
Company.
p) "OFFICER" shall mean a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder.
q) "PLAN" shall mean this Employee Stock Purchase Plan.
r) "PURCHASE PERIOD" shall mean a period of three (3) months
beginning on January 1, April 1, July 1 and October 1 and ending
on the last day preceding the beginning of the next period,
except as otherwise indicated by the Company.
s) "SUBSIDIARY" shall mean a corporation, domestic or foreign, of
which not less than 50% of the voting shares are held by the
Company or a Subsidiary, whether or not such corporation now
exists or is hereafter organized or acquired by the Company or a
Subsidiary.
3. ELIGIBILITY.
a) Any person who is an Employee as of the Offering Date of a given
Offering Period shall be eligible to participate in such
Offering Period under the Plan, subject to the requirements of
Sections 5(a) and 10 and the limitations imposed by Section
423(b) of the Code. An Employee may enter at the beginning of
the Offering Period or at any Entry Date within the Offering
Period at which he/she remains an Employee.
b) Any person who first becomes an Employee after the Offering Date
of a given Offering Period may enter that Offering Period at any
Entry Date during that Offering Period on which he/she remains
an Employee.
c) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if,
immediately after the grant, such Employee (or any other person
whose stock would be attributed to such an Employee pursuant to
Section 424(d) of the Code) would own stock and/or hold
outstanding options to purchase stock possessing five percent
(5%) or more of the total combined voting power or value of all
classes of stock of the Company or of any Subsidiary of the
Company, or (ii) if such option would permit his or her rights
to purchase stock under all employee stock purchase plans
(described in Section 423 of the Code) of the Company and its
Subsidiaries to accrue at a rate which exceeds Twenty-Five
Thousand Dollars ($25,000) of fair market value of such stock
(determined at the time such option is granted) for each
calendar year in which such option is outstanding at any time.
4. OFFERING PERIODS AND PURCHASE PERIODS.
a) The Plan shall be implemented by a series of Offering Periods
each of one (1) year duration, with new Offering Periods
commencing on January 1 of each year (or at such other time or
times as may be determined by the Board of Directors). The Plan
shall continue until terminated in accordance with Section 19
hereof. The Board of Directors of the Company shall have the
power to change the duration and/or the frequency of Offering
Period with respect to future offerings without stockholder
approval if such change is announced at least fifteen (15) days
prior to the scheduled beginning of the first Offering Period to
be affected. Eligible employees may not participate in more than
one Offering at a time.
b) Each Offering Period shall consist of four three-month Purchase
Periods, beginning on January 1, April 1, July 1 and October 1
and ending on the last day preceding the beginning of the next
period, except as otherwise indicated by the Company.
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5. PARTICIPATION.
a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement on the form provided by the
Company and filing it with the Company's payroll office (or at
such other place as the Company may determine) prior to the
applicable Offering Date or Entry Date, unless a later time for
filing the subscription agreement is set by the Board for all
eligible Employees with respect to a given offering. The
subscription agreement shall set forth the whole number
percentage of the participant's Compensation (which shall be not
less than 1% and not more than 15%) to be paid as Contributions
pursuant to the Plan. The Company may establish equivalent
alternative procedures for enrollment.
b) Payroll deductions shall commence on the first payroll following
the Offering Date or Entry Date and shall end on the last
payroll paid prior to the Exercise Date of the Offering Period
to which the subscription agreement is applicable, unless sooner
terminated by the participant as provided in Section 10,
provided however, that any payroll paid within five (5) business
days preceding the Exercise Date will be included in the
subsequent Purchase or Offering Period.
6. METHOD OF PAYMENT OF CONTRIBUTIONS.
a) The participants shall elect to have payroll deductions made on
each payday during the Offering Period in an amount not less
than one percent (1%) and not more than fifteen percent (15%)
(in whole number increments) of such participant's Compensation
on each such payday. All payroll deductions made by a
participant shall be credited to his or her account under the
Plan. A participant may not make any additional payments into
such account.
b) A participant may discontinue his or her participation in the
Plan as provided in Section 10, or, on one occasion only during
the Offering Period, may decrease the rate of his or her
Contributions during the Offering Period by completing and
filing with the Company a new subscription agreement. The change
in rate shall be effective as of the beginning of the next
calendar month following the date of filing of the new
subscription agreement, if the agreement is filed at least ten
(10) business days prior to such date and, if not, as of the
beginning of the next succeeding calendar month.
c) Notwithstanding the foregoing, no participant may make payroll
deductions during any year in excess of $21,250.
7. GRANT OF OPTION.
a) On the Offering Date of each Offering Period, or on the Entry
Date if later, each eligible Employee participating in such
Offering Period shall be granted an option to purchase on each
Purchase Date a number of shares of the Company's Common Stock
determined by dividing such Employee's Contribution accumulated
prior to such Purchase Date and retained in the participant's
account as of the Purchase Date by the lower of (i) eighty-five
percent (85%) of the fair market value of a share of the
Company's Common Stock on the Employee's Entry Date, or (ii)
eighty-five percent (85%) of the fair market value of the
Company's Common Stock on the Purchase Date; provided however,
that the maximum number of shares an Employee may purchase
during each Offering Period shall be 5,000 shares, and provided
further that such purchase shall be subject to the limitations
set forth in Section 3(c) and 12. However, for each
participating Employee whose Entry Date is subsequent to the
Offering Date, the clause (i) amount shall in no event be less
than 85% of the fair market value per share on the Offering
Date. The fair market value of a share of the Company's Common
Stock shall be determined as provided in Section 7(b).
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b) The option price per share of the shares offered in a given
Purchase Period of an Offering Period shall be the lower of: (i)
85% of the fair market value of a share of the Common Stock of
the Company on the Offering Date; or (ii) 85% of the fair market
value of a share of the Common Stock of the Company on the
Exercise Date of that Purchase Period. For Employees whose Entry
Date is subsequent to the Offering Date, the amount in clause
(i) shall be the higher of (a) 85% of the fair market value of a
share of the Common Stock of the Company on the Offering Date
and (b) 85% of the fair market value per share of the Common
Stock of the Company on the Employee's Entry Date. The fair
market value of the Company's Common Stock on a given date shall
be determined by the Board in its discretion based on the
closing price of the Common Stock for such date (or, in the
event that the Common Stock is not traded on such date, on the
immediately preceding trading date on which there was a closing
price), as reported on the Nasdaq National Market or, if such
price is not reported, the mean of the bid and asked prices per
share of the Common Stock as reported by Nasdaq National Market
or, in the event the Common Stock is listed on a stock exchange,
the fair market value per share shall be the closing price on
such exchange on such date (or, in the event that the Common
Stock is not traded on such date, on the immediately preceding
trading date), as reported in THE WALL STREET JOURNAL.
8. EXERCISE OF OPTION. Unless a participant withdraws from the Plan as
provided in Section 10, his or her option for the purchase of shares
will be exercised automatically on each Exercise Date of an Offering
Period, and the maximum number of full shares subject to the option will
be purchased at the applicable option price with the accumulated
Contributions in his or her account. The shares purchased upon exercise
of an option hereunder shall be deemed to be transferred to the
participant on that Exercise Date. During his or her lifetime, a
participant's option to purchase shares hereunder is exercisable only by
him or her.
9. DELIVERY. As promptly as practicable after each Exercise Date of an
Offering Period, the Company shall arrange the delivery to each
participant, as appropriate, including, but not limited to, direct
deposit into a book entry account or brokerage account, the shares
purchased upon exercise of his or her option. Any cash remaining to the
credit of a participant's account under the Plan after a purchase by him
or her of shares on the Exercise Date, other than amounts representing
fractional shares, will be returned to him or her as soon as
practicable. Amounts representing fractional shares will be carried
forward for use in subsequent purchases.
10. VOLUNTARY WITHDRAWAL; TERMINATION OF EMPLOYMENT.
a) A participant may withdraw all but not less than all the
Contributions credited to his or her account under the Plan at
any time prior to two (2) business days prior to an Exercise
Date of an Offering Period by completing a Company approved
notification. All of the participant's Contributions credited to
his or her account will be paid to him or her as soon as
practicable after receipt of his or her notice of withdrawal and
his or her option for the current period will be automatically
terminated, and no further Contributions for the purchase of
shares will be made during the Offering Period.
b) Upon termination of the participant's Continuous Status as an
Employee prior to an Exercise Date of an Offering Period for any
reason, including retirement or death, the Contributions
credited to his or her account will be returned to him or her
or, in the case of his or her death, to the person or persons
entitled thereto under Section 14, and his or her option will be
automatically terminated.
c) Should a participant voluntarily withdraw from participation
during an Offering Period, the participant will not be eligible
to participate in the Plan until the beginning of the next
Offering Period.
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11. INTEREST. No interest shall accrue on the Contributions of a participant
in the Plan.
12. STOCK.
a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be one
million (1,000,000) shares, subject to adjustment upon changes
in capitalization of the Company as provided in Section 18. If
the total number of shares which would otherwise be subject to
options granted pursuant to Section 7(a) on the Offering Date of
an Offering Period exceeds the number of shares then available
under the Plan (after deduction of all shares for which options
have been exercised or are then outstanding), the Company shall
make a pro rata allocation of the shares remaining available for
option grant in as uniform a manner as shall be practicable and
as it shall determine to be equitable. In such event, the
Company shall give written notice of such reduction of the
number of shares subject to the option to each Employee affected
thereby and shall similarly reduce the rate of Contributions, if
necessary.
b) A participant will have no interest or voting right in shares
covered by his or her option until such option has been
exercised.
c) Shares to be delivered to a participant under the Plan will be
registered in the "Street Name" of a Company approved broker.
13. ADMINISTRATION. The Board, or a committee named by the Board, shall
supervise and administer the Plan and shall have full power to adopt,
amend and rescind any rules deemed desirable and appropriate for the
administration of the Plan and not inconsistent with the Plan, to
construe and interpret the Plan, and to make all other determinations
necessary or advisable for the administration of the Plan. The
composition of the committee shall be in accordance with the
requirements to obtain or retain any available exemption from the
operation of Section 16(b) of the Exchange Act pursuant to Rule 16b-3
promulgated thereunder.
14. DESIGNATION OF BENEFICIARY.
a) A participant may file a written designation of a beneficiary
who is to receive shares and cash, if any, from the
participant's account under the Plan in the event of such
participant's death subsequent to the end of an Offering Period
but prior to delivery to him or her of such shares and cash. In
addition, a participant may file a written designation of a
beneficiary who is to receive any cash from the participant's
account under the Plan in the event of such participant's death
prior to the Exercise Date of an Offering Period. If a
participant is married and the designated beneficiary is not the
spouse, spousal consent shall be required for such designation
to be effective.
b) Such designation of beneficiary may be changed by the
participant (and his or her spouse, if any) at any time by
written notice. In the event of the death of a participant and
in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's death, the
Company shall deliver such shares and/or cash to the executor or
administrator of the estate of the participant, or if no such
executor or administrator has been appointed (to the knowledge
of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more
dependents or relatives of the participant, or if no spouse,
dependent or relative is known to the Company, then to such
other person as the Company may designate.
15. TRANSFERABILITY. Neither Contributions credited to a participant's
account nor any rights with regard to the exercise of an option or to
receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of
descent and distribution, or as provided in Section 14) by the
participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat
such act as election to withdraw funds in accordance with Section 10.
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16. USE OF FUNDS. All Contributions received or held by the Company under
the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such Contributions.
17. REPORTS. Individual accounts will be maintained for each participant in
the Plan. Statements of account will be given to participating Employees
promptly following the Exercise Date, which statements will set forth
the amounts of Contributions, the per share purchase price, the number
of shares purchased and the remaining cash balance, if any.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; CORPORATE TRANSACTIONS.
a) ADJUSTMENT. Subject to any required action by the stockholders
of the Company, the number of shares of Common Stock covered by
each option under the Plan which has not yet been exercised and
the number of shares of Common Stock which have been authorized
for issuance under the Plan but have not yet been placed under
option (collectively, the "Reserves"), as well as the price per
share of Common Stock covered by each option under the Plan
which has not yet been exercised, shall be proportionately
adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase or decrease in the
number of shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion
of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration". Such
adjustment shall be made by the Board, whose determination in
that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issue by the Company of shares of
stock of any class, or securities convertible into shares of
stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of
shares of Common Stock subject to an option.
b) CORPORATE TRANSACTIONS. In the event of the proposed dissolution
or liquidation of the Company, the Offering Period will
terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Board. In the event of
a proposed sale of all or substantially all of the assets of the
Company, or the merger of Company with or into another
corporation, each option under the Plan shall be assumed or an
equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor
corporation, unless the Board determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution,
to shorten the Offering Period then in progress by setting a new
Exercise Date (the "New Exercise Date"). If the Board shortens
the Offering Period then in progress in lieu of assumption or
substitution in the even of a merger or sale of assets, the
Board shall notify each participant in writing, at least ten
(10) days prior to the New Exercise Date, that the Exercise Date
for his or her option has been changed to the New Exercise Date
and that this or her option will be exercised automatically on
the New Exercise Date, unless prior to such date he or she has
withdrawn from the Offering Period as provided in Section 10.
For purposes of this paragraph, an option granted under the Plan
shall be deemed to be assumed if, following the sale of assets
or merger, the option confers the right to purchase, for each
share of option stock subject to the option immediately prior to
the sale of assets or merger, the consideration (whether stock,
cash or other securities or property) received in the sale of
assets or merger by holders of Common Stock for each share of
Common Stock held on the effective date of the transaction (and
if such holders were offered a choice of consideration, the type
of consideration chosen by the holders of a majority of the
outstanding shares of Common Stock); provided, however, that if
such consideration received in the sale of assets or merger was
not solely common stock of the successor corporation or its
parent (as defined in Section 424(e) of the Code), the Board
may, with the consent of the successor corporation and the
participant, provide for the consideration to be received upon
exercise of the option to be solely common stock of the
successor corporation or its parent equal in fair market value
to the per share consideration received by holders of Common
Stock and the sale of assets of merger.
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19. AMENDMENT OR TERMINATION.
a) The Board of Directors of the Company may at any time terminate
or amend the Plan. Except as provided in Section 18, no such
termination may affect options previously granted, nor may an
amendment make any change in any option theretofore granted
which adversely affects the rights of any participant. In
addition, to the extent necessary to comply with Rule 16b-3
under the Exchange Act , or under Section 423 of the Code (or
any successor rule or provision or any applicable law or
regulation), the Company shall obtain stockholder approval in
such a manner and to such a degree as so required.
b) Without stockholder consent and without regard to whether any
participant rights may be considered to have been adversely
affected, the Board (or its committee) shall be entitled to
change the Offering Periods and Purchase Periods, limit the
frequency and/or number of changes in the amount withheld during
an Offering Period, establish the exchange ratio applicable to
amounts withheld in currency other than U.S dollars, permit
payroll withholding in excess of the amount designated by a
participant in order to adjust for delays or mistakes in the
Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods
and/or accounting and crediting procedures to ensure that
amounts applied toward the purchase of Common Stock for each
participant properly correspond with amounts withheld from the
participant's Compensation, and establish such other limitations
or procedures as the Board (or its committee) determines in its
sole discretion advisable which are consistent with the Plan.
20. NOTICES. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have
been duly given when received in the form specified by the Company at
the location, or by the person, designated by the Company for the
receipt thereof.
21. CONDITIONS UPON ISSUANCE OF SHARES.
a) Shares shall not be issued with respect to an option unless the
exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Exchange
Act, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
b) As a condition to the exercise of an option, the Company may
require the person exercising such option to represent and
warrant at the time of any such exercise that the shares are
being purchased only for investment and without any present
intention to sell or distribute such shares if, in the opinion
of counsel for the Company, such a representation is required by
any of the aforementioned applicable provisions of law.
c) Each participant agrees, by entering the Plan, to promptly give
the Company notice of any disposition of shares purchased under
the Plan where such disposition occurs within two (2) years
after the date of grant of the Option pursuant to which such
shares were purchased.
d) The Company may make such provisions as it deems appropriate for
withholding by the Company pursuant to all applicable tax laws
of such amounts as the Company determines it is required to
withhold in connection with the purchase or sale by a
participant of any Common Stock acquired pursuant to the Plan.
The Company may require a participant to satisfy any relevant
tax requirements before authorizing any issuance of Common Stock
to such participant.
22. TERM OF PLAN; EFFECTIVE DATE. The Plan shall become effective upon the
earlier to occur of its adoption by the Board of Directors or its
approval by the stockholders of the Company. The Plan shall be subject
to approval by
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the stockholders of the Company within twelve months after the date the
Plan is adopted by the Board of Directors. It shall continue in effect
for a term of ten (10) years unless sooner terminated under Section 19.
23. ADDITIONAL RESTRICTIONS OF RULE 16B-3. The terms and conditions of
options granted hereunder to, and the purchase of shares by, persons
subject to Section 16 of the Exchange Act shall comply with the
applicable provisions of Rule 16b-3. This Plan shall be deemed to
contain, and such options shall contain, and the shares issued upon
exercise thereof shall be subject to, such additional conditions and
restrictions as may be required by Rule 16b-3 to qualify for the maximum
exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
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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 to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Houston, Texas
March 30, 1998
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