EXHIBIT 10.1
CARRIAGE SERVICES CAPITAL TRUST
7% CONVERTIBLE PREFERRED SECURITIES
TERM INCOME DEFERRABLE EQUITY SECURITIES (TIDES)(SM)
(LIQUIDATION AMOUNT $50 PER
EACH OF THE TIDES)
GUARANTEED TO THE EXTENT SET FORTH
IN THE GUARANTEE AGREEMENT BY, AND
CONVERTIBLE INTO CLASS A COMMON STOCK OF,
CARRIAGE SERVICES, INC.
REGISTRATION RIGHTS AGREEMENT
June 3, 1999
Credit Suisse First Boston Corporation
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Dear Sirs:
Carriage Services Capital Trust, a business trust formed under the laws of
the State of Delaware (the "Trust") by Carriage Services, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell to you, as initial
purchaser (the "Purchaser"), upon the terms set forth in a purchase agreement
dated May 27, 1999 (the "Purchase Agreement"), among the Purchaser, the Company
and the Trust up to 1,875,000 7% Convertible Preferred Securities Term Income
Deferrable Equity Securities ("TIDES") (liquidation amount $50 per each of the
TIDES) (the "Initial Placement"). The proceeds of the sale by the Trust of the
TIDES and the Common Securities, liquidation amount $50 per Common Security (the
"Common Securities"), are to be invested in the Convertible Junior Subordinated
Debentures Due 2029 of the Company (the "Convertible Junior Subordinated
Debentures") having an aggregate principal amount equal to the aggregate
liquidation amount of the TIDES and the Common Securities. The TIDES are
guaranteed by the Company to the extent set forth in the Guarantee Agreement
dated as of June 3, 1999 (the "Guarantee"), between the Company and Wilmington
Trust Company, as trustee, and are convertible into Class A Common
Stock, par value $.01 per share (the "Common Stock") of the Company. As an
inducement to you to enter into the Purchase Agreement and in satisfaction of a
condition to your obligations thereunder, the Trust and the Company agree with
you, (i) for your benefit and (ii) for the benefit of the registered holders
from time to time of the TIDES and the Convertible Junior Subordinated
Debentures and the record holders of the Common Stock of the Company issuable
upon conversion of the TIDES or the Convertible Junior Subordinated Debentures
(collectively, together with the Guarantee by the Company of the TIDES, the
"Securities"), including the Purchaser (each of the foregoing a "Holder" and
together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in or pursuant to the Purchase
Agreement or, if not defined therein, in the Confidential Offering Circular
dated May 27, 1999, in respect of the TIDES or, if not defined therein, in the
Amended and Restated Declaration of Trust dated as of June 3, 1999 (the
"Declaration") relating to the Trust. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York or Wilmington,
Delaware are authorized or required by law or executive order to remain closed
or (iii) a day on which the corporate trust office of the Debenture Trustee or
the Property Trustee is closed for business.
"Closing Date" has the meaning given such term in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the first paragraph to this
Agreement.
"Company" has the meaning set forth in the first paragraph to this
Agreement.
"Convertible Junior Subordinated Debentures" has the meaning set forth in
the first paragraph to this Agreement.
"Debenture Trustee", "Guarantee Trustee" and "Property Trustee" each means
Wilmington Trust Company, a Delaware banking corporation.
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"Electing Holder" has the meaning assigned thereto in Section 2(c)(ii)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Guarantee" means the guarantee by the Company of the TIDES pursuant to a
Guarantee Agreement dated as of June 3, 1999 between the Company and the
Guarantee
Trustee.
"Holder" and "Holders" each has the meaning set forth in the first
paragraph to this Agreement.
"Initial Placement" has the meaning set forth in the first paragraph to
this Agreement.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
as set forth in Section 6 hereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement filed pursuant to Rule 415 under the Act, with respect to the terms of
the offering of all or any portion of the Securities covered by such Shelf
Registration Statement, as amended or supplemented by all amendments (including
post-effective amendments) and supplements to the Prospectus.
"Purchase Agreement" has the meaning set forth in the first paragraph
to this Agreement.
"Purchaser" has the meaning set forth in the first paragraph to this
Agreement.
"Registration Default" has the meaning given to such term in Section 7(a)
hereof.
"Securities" means the TIDES, the Convertible Junior Subordinated
Debentures, the Common Stock and the Guarantee, individually and collectively.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of
the Trust and the Company pursuant to the provisions of Section 2 hereof filed
with the Commission which covers some or all of the Securities, as applicable,
on an appropriate form under Rule 415 under the Act, or any similar rule that
may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Special Distributions" has the meaning given such term in Section 7(a)
hereof.
"Special Interest" has the meaning given such term in Section 7(a) hereof.
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"TIDES" has the meaning set forth in the first paragraph to this
Agreement.
"Trust" has the meaning set forth in the first paragraph to this
Agreement.
"Trustee" means the Guarantee Trustee, the Indenture Trustee or the
Property Trustee, as applicable.
"Underwriter" means any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. SHELF REGISTRATION. (a) The Trust and the Company shall (i) file as
soon as practicable, but in no event more than 60 days after the Closing Date, a
Shelf Registration covering resales of the TIDES, the Guarantee, the Convertible
Junior Subordinated Debentures and the related Company Common Stock issuable
upon conversion thereof and (ii) use their best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act within
150 days after the Closing Date, PROVIDED, HOWEVER, that no Holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement or to use the Prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing Holder.
(b) The Trust and the Company shall each use their best efforts (i)
to keep the Shelf Registration Statement continuously effective, subject to
Section 7(b) hereof, in order to permit the Prospectus forming part thereof to
be usable by Holders until resale of the Securities are permitted pursuant to
Rule 144(k) under the Securities Act or any successor rule or regulation thereto
after the date the Shelf Registration Statement is declared effective or such
shorter period that will terminate upon the earlier of the following: (A) when
all the TIDES covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement, (B) when all Convertible Junior
Subordinated Debentures issued to Holders in respect of TIDES that had not been
sold pursuant to the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement or (C) when all shares of Common Stock issued upon
conversion of any such TIDES or any such Convertible Junior Subordinated
Debentures that had not been sold pursuant to the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement (in any such case,
such period being called the "Shelf Registration Period") and (ii) after the
effectiveness of the Shelf Registration Statement, promptly upon the request of
any Holder that is not then an Electing Holder to take any action reasonably
necessary to register the sale of any Securities of such Holder and to identify
such Holder as a selling securityholder, PROVIDED, HOWEVER, that nothing in this
subparagraph shall relieve such Holder of the obligation to provide the Company
and the Trust with the information required pursuant to Section 2(c) hereof.
(c) (i) No Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the date on which the
Commission declares the Shelf Registration Statement effective or on which the
Shelf Registration Statement otherwise becomes effective, and no Holder shall be
entitled to use the Prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has provided the Company and the
Trust with such
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information as they shall reasonably request in order to enable the Company and
the Trust to comply with the applicable requirements of the Securities Act in
connection with offers and sales by such Holder as a selling securityholder in
the Shelf Registration Statement within 30 calendar days from the date on which
any such request is first mailed to such Holder.
(i) After the date on which the Commission declares the Shelf
Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective, the Company and the Trust may, upon
the request of any Holder of Registrable Securities that is not then an
Electing Holder, take such action as is necessary to name such Holder as a
selling securityholder in the Shelf Registration Statement or to enable
such Holder to use the Prospectus forming a part thereof for resales of
Registrable Securities if such Holder promptly provides the Company and
the Trust with such information as they shall reasonably request in order
to enable the Company and the Trust to comply with the applicable
requirements of the Securities Act in connection with offers and sales by
such Holder so as to permit such Holder to be so named.
(ii) The term "Electing Holder" shall mean any holder of
Registrable Securities that has complied with the requests of the Company
and the Trust in accordance with Section 2(c)(i) or 2(c)(ii) hereof.
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to the Purchaser, prior
to the filing thereof with the Commission, a copy of any Shelf Registration
Statement, and each amendment thereof and each amendment or supplement, if any,
to the Prospectus included therein and shall each use its best efforts to
reflect in each such document, when so filed with the Commission, such comments
as the Purchaser reasonably may propose.
(b) The Trust and the Company shall take such action as may be
necessary, subject to Section 7(b) hereof, so that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all material
respects with the Securities Act and the Exchange Act and the respective rules
and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not, during the Shelf
Registration Period, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading.
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(c) (1) The Company shall advise the Purchaser and each Electing
Holder and, if requested by the Purchaser or any such Electing Holder,
confirm such advice in
writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus included
therein or for additional information.
(2) The Trust and the Company shall advise the Purchaser and
each Electing Holder and, if requested by the Purchaser or any such
Electing Holder, confirm such
advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Trust or the Company of any
notification with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and
(iii) of the happening, during the Shelf Registration Period,
of any event (provided that such notice need not specify the nature of
such event) that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such date, the
Registration Statement and the Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Trust and the Company shall use their best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of any Shelf Registration Statement at the earliest
possible time.
(e) The Trust and the Company shall furnish to each Electing Holder
of Securities, without charge, at least one copy of such Shelf Registration
Statement and any post- effective amendment thereto (including any reports or
other documents incorporated therein by reference), including financial
statements and schedules, and, if the Electing Holder so requests in writing,
all exhibits (including those incorporated by reference).
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(f) The Trust and the Company shall, during the Shelf Registration
Period, deliver to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Electing
Holder may reasonably request and shall deliver such materials to the New York
Stock Exchange pursuant to Rule 153 under the Act; and each of the Trust and the
Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the Electing Holders in connection with the offering and sale
of the Securities covered by the Prospectus or any amendment or supplement
thereto during the Shelf Registration Period.
(g) Prior to any offering of Securities pursuant to any Shelf
Registration Statement, the Trust and the Company shall register or qualify or
cooperate with the Electing Holders and their respective counsel in connection
with the registration or qualification of such Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any such Electing
Holders reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Shelf Registration Statement; PROVIDED, HOWEVER, that
neither the Trust nor the Company will be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(h) Unless the applicable Securities shall be in book-entry only
form, the Trust and the Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates representing
Securities to be sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such permitted denominations and registered in such
names as Electing Holders may request in connection with the sale of Securities
pursuant to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by Section
3(c)(1)(ii) or 3(c)(2)(i) above, the Trust and the Company shall promptly
prepare, subject to Section 7(b) hereof, as soon as possible a post-effective
amendment to any Shelf Registration Statement or an amendment or supplement to
the related Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Securities included therein, the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If the Trust or
the Company notifies the Electing Holders of the occurrence of any event
contemplated by Section 3(c)(2)(i) above, the Electing Holders shall suspend the
use of the Prospectus until the requisite changes to the Prospectus have been
made.
(j) Not later than the effective date of any Shelf Registration
Statement hereunder, the Trust and the Company shall provide a CUSIP number for
the TIDES and, in the event of and at the time of any distribution thereof to
Holders, the Convertible Junior Subordinated Debentures, registered under such
Shelf Registration Statement, and provide the applicable Trustee
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with certificates for such Securities, in a form eligible for deposit with
The Depository Trust Company.
(k) The Trust and the Company shall use their best efforts to comply
with all applicable rules and regulations of the Commission and shall make
generally available to their security holders or otherwise in accordance with
Section 11(a) of the Securities Act as soon as practicable after the effective
date of the applicable Shelf Registration Statement an earning statement
satisfying the provisions of Section 11(a) of the Securities Act.
(l) The Trust and the Company shall cause the Indenture, the
Declaration and the Guarantee to be qualified under the Trust Indenture Act in a
timely manner.
(m) The Trust and the Company may require each Electing Holder to
furnish to the Trust and the Company such information regarding the Electing
Holder and the distribution of such Securities as the Trust and the Company may
from time to time reasonably require for inclusion in such Shelf Registration
Statement.
(n) The Trust and the Company shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters reasonably
agree should be included therein and to which the Trust and the Company do not
reasonably object and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after they are
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(o) The Trust and the Company shall enter into such customary
agreements (including underwriting agreements in customary form) to take all
other appropriate actions in order to expedite or facilitate the registration or
the disposition of the Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 (or such other provisions and procedures acceptable to the
Managing Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 5.
(p) The Trust and the Company shall (i) make reasonably available
for inspection by the Electing Holders, any underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by such Electing Holders or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Trust and the Company and its subsidiaries as
shall be requested in connection with the discharge of their due diligence
obligations; (ii) cause the Company's officers, directors and employees and any
relevant Trustees to supply at the Company's expense all relevant information
reasonably requested by such Electing Holders or any such underwriter, attorney,
accountant or agent in connection with any such Shelf Registration Statement as
is customary for similar due diligence examinations; PROVIDED, HOWEVER, that any
information that is designated in writing by the Trust and the Company, in good
faith, as confidential at the time of delivery of such
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information shall be kept confidential by such Electing Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without an
accompanying obligation of confidentiality, and such Electing Holders shall
agree that such information may only be used as part of their due diligence
examination and for no other purpose; and PROVIDED FURTHER that the foregoing
inspection and information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and the other parties entitled
thereto by one counsel designated by and on behalf of such Electing Holders and
other parties; (iii) in connection with an underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties to the
Electing Holders participating in such underwritten offering and the
underwriters in form, substance and scope as are customarily made by the issuers
to underwriters in primary underwritten offerings and covering matters as are
customarily covered in representations and warranties requested in primary
underwritten offerings including, but not limited to, those set forth in the
Purchase Agreement; (iv) in connection with an underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the Trust and the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing Underwriters)
addressed to each Electing Holder participating in such offering and the
underwriters, if any, covering such matters and with such exceptions as are
customarily covered or taken in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Electing Holders and
underwriters (it being agreed that the matters to be covered by such opinion
shall include, without limitation, as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, a statement by such counsel regarding the
absence from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented, including the documents incorporated
by reference therein, of an untrue statement of a material fact or the omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading); (v) in connection with an
underwritten offering conducted pursuant to Section 6 hereof, obtain "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Shelf Registration Statement), addressed to each
Electing Holder participating in such underwritten offering and the
underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings; and (vi) in connection with an underwritten offering
conducted pursuant to Section 6 hereof, deliver such documents and certificates
as may be reasonably requested by the Managing Underwriters, if any, including
those to evidence compliance with Section 3(i) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Trust and the Company. The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 3(p) shall be performed at (A) with respect to
clauses (ii) and (v) only, the execution of an underwriting agreement and (B)
each closing under any underwritten offering to the extent required under any
related underwriting or similar agreement.
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(q) The Trust and the Company will use their best efforts to cause
the Common Stock relating to such Shelf Registration Statement to be listed on
each securities exchange, over-the-counter market, or respective counterpart if
any, on which any shares of Common Stock are then listed.
(r) The Trust and the Company shall, in the event that any
broker-dealer registered under the Exchange Act shall underwrite any Securities
or participate as a member of an underwriting syndicate or selling group or
"assist in the distribution" (within the meaning of the Rules of Fair Practice
and the By-Laws of the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as a Holder of such Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements of such
Rules and By-Laws, including, without limitation, by (A) if such Rules or
By-Laws, including Schedule E thereto, shall so require, engaging a "qualified
independent underwriter" (as defined in such Schedule) to participate in the
preparation of the Shelf Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto, (B) indemnifying
any such qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 5 hereof and (C) providing such information
to such broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules of Fair Practice of the NASD.
(s) The Trust and the Company shall use their best efforts to take
all other steps necessary to effect the registration, offering and sale of the
Securities covered by the Shelf Registration Statement contemplated hereby.
4. REGISTRATION EXPENSES. Except as otherwise provided in Section 6, the
Company shall bear all fees and expenses incurred in connection with the
performance of the obligations of the Company and the Trust under Sections 2 and
3 hereof and shall bear or reimburse the Purchaser for the reasonable fees and
disbursements of one counsel for the Purchaser in connection with the filing of
the Shelf Registration Statement.
5. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any Shelf
Registration Statement, the Trust and the Company, jointly and severally, agree
to indemnify and hold harmless the Purchaser, each Electing Holder (including
the Purchaser) and each person who controls the Purchaser or any such Electing
Holder within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Shelf
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as
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incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company and the Trust will not
be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the Purchaser or any such Electing Holder specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company or the Trust may otherwise have.
The Trust and the Company, jointly and severally, also agree to indemnify
or contribute to Losses (as defined below) of, as provided in Section 5(d), any
underwriters of Securities registered under the Shelf Registration Statement,
their officers, directors, employees and agents and each person who controls
such underwriters on substantially the same basis as that of the indemnification
of the Purchaser and the Electing Holders provided in this Section 5(a) and
shall, if requested by any Electing Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 3(o) and Section 6 hereof.
(a) Each Electing Holder (including the Purchaser) severally agrees
as a consequence of the inclusion of any of such ▇▇▇▇▇▇'s Registrable Securities
in such Shelf Registration Statement, and each underwriter executing an
underwriting agreement, if any, which facilitates the disposition of Registrable
Securities shall agree, as a consequence of facilitating such disposition of
Registrable Securities, severally and not jointly, to indemnify and hold
harmless (i) the Trust and the Company, (ii) each of the directors of the
Company, (iii) each of its officers and any Administrative Trustee who signs
such Shelf Registration Statement and (iv) each person who controls the Trust or
the Company within the meaning of either the Securities Act or the Exchange Act
to the same extent as the foregoing indemnity from the Trust and the Company,
but only with reference to written information relating to such Electing Holder
or underwriter executing an underwriting agreement furnished to the Company by
or on behalf of such Electing Holder or underwriter executing an underwriting
agreement specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Electing Holder or underwriter executing an
underwriting agreement may otherwise have.
(b) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 5, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability it may have to any indemnified party
otherwise than under paragraph (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of such indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to
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assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
(c) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Shelf Registration Statement which resulted in such Losses; PROVIDED, HOWEVER,
that in no case shall the Purchaser or any subsequent Holder of any Securities
be responsible, in the aggregate, for any amount in excess of the amount by
which the net proceeds received by such Holders from the sale of the Securities
pursuant to the Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand. The parties
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (c), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (c) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (c). For purposes of this Section 5, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act shall
have the same rights to contribution as such Holder, and each person who
controls the Company or the Trust within the meaning of either the Securities
Act or the Exchange Act, each officer of the Company who shall have signed the
Shelf Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (c).
(d) The provisions of this Section 5 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or the Trust or any of the officers, directors, employees, agents or
controlling persons referred to in Section 5 hereof, and will
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survive the sale by a Holder of Securities covered by the Shelf Registration
Statement. The obligations of the Trust and the Company under this Section shall
be in addition to any liability which the Trust and the Company may otherwise
have.
6. UNDERWRITTEN OFFERING. The Holders of Securities covered by the Shelf
Registration Statement who desire to do so may sell such Securities in an
underwritten offering. In any such underwritten offering, the investment banker
or bankers and manager or managers that will administer the offering will be
selected by, and the underwriting arrangements with respect thereto will be
approved by, the Holders of a majority of the Securities to be included in such
offering; PROVIDED, HOWEVER, that (i) such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company and the
Trust and (ii) the Company shall not be obligated to arrange for more than one
underwritten offering during the Shelf Registration Period. No Holder may
participate in any underwritten offering contemplated hereby unless such ▇▇▇▇▇▇
(a) agrees to sell such ▇▇▇▇▇▇'s Securities in accordance with any approved
underwriting arrangements, (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements, (c) at least 30% of the outstanding Securities are
included in such underwritten offering, and (d) if such Holder is not then an
Electing Holder, such Holder provides the Company and the Trust with such
information as they shall reasonably request in order to enable the Company and
the Trust to comply with the applicable requirements of the Securities Act in
connection with offers and sales by such Holder as a selling securityholder in
the underwritten offering within a reasonable amount of time before such
underwritten offering. The Holders participating in any underwritten offering
shall be responsible for any expenses customarily borne by selling
securityholders, including underwriting discounts and commissions and fees and
expenses of counsel to the selling securityholders. Notwithstanding the
foregoing or the provisions of Section 3(n) hereof, upon receipt of a request
from the Managing Underwriter or a representative of Holders of a majority of
the Securities outstanding to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 90 days if the Company in good faith has a valid business reason for
such delay.
7. SPECIAL INTEREST AND SPECIAL DISTRIBUTIONS UNDER CERTAIN CIRCUMSTANCES.
(a) If (i) within 150 days of the Closing Date the Shelf Registration Statement
has not been declared effective by the Commission, or (ii) in the event that a
Shelf Registration Statement is declared effective by the Commission, the
Company or the Trust fails to keep such Shelf Registration Statement
continuously effective and usable (except as permitted in paragraph (b) of this
Section 7) prior to the end of the Shelf Registration Period (each such event
referred to in clauses (i) and (ii) a "Registration Default"), then additional
interest ("Special Interest") will accrue on the Convertible Junior Subordinated
Debentures (including in respect of amounts accruing during any Deferral
Period), and corresponding additional distributions (the "Special
Distributions") will accrue on the TIDES and the Common Securities, in each case
from and including the day following such Registration Default to but excluding
the day on which such Registration Default has been cured or has been deemed to
have been cured. Subject to the deferral of interest provisions of the
Convertible Junior
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Subordinated Debentures and the deferral of distributions provisions of the
TIDES, Special Interest and Special Distributions will be paid in cash quarterly
in arrears on March 1, June 1, September 1 and December 1 commencing with the
first such date following the applicable Registration Default and will accrue at
a rate such that the interest rate or distribution rate, as the case may be,
will be increased 0.50% per annum of the principal amount or liquidation amount,
as applicable. Following the cure of a Registration Default, Special Interest
and Special Distributions will cease to accrue with respect to such Registration
Default.
(b) A Registration Default referred to in Section 7(a)(ii) shall be
deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if such Registration Default
has occurred solely as a result of (x) the filing of a post-effective amendment
to such Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus or (y) the occurrence of other material events or
developments with respect to the Trust or the Company that would need to be
described in such Registration Statement or the related Prospectus and either
(i) the Company shall have determined in good faith that such disclosure is not
in the best interests of the Company and its stockholders or (ii) the Trust and
the Company are proceeding promptly and in good faith to amend or supplement
such Registration Statement and related Prospectus to describe such events;
PROVIDED, HOWEVER, that in any case, if such Registration Default occurs for a
continuous period in excess of 45 days, Special Interest and Special
Distributions shall be payable in accordance with the above paragraph from the
first day of such 45-day period until the date on which such Registration
Default is cured.
8. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Trust and the Company have not,
as of the date hereof, entered into, nor shall they on or after the date hereof,
enter into, any agreement with respect to their securities or otherwise that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of the Purchaser.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
7(c), which address initially is,
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with respect to each Holder, the address of such Holder maintained by the
Registrar under the Indenture, with a copy in a like manner to Credit
Suisse First Boston Corporation;
(2) if to the Purchaser, initially at the address set forth in
the Purchase Agreement; and
(3) if to the Trust or the Company, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Purchaser or the Trust and the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and the Holders, including, without the need for an express assignment or any
consent by the Trust or the Company thereto, subsequent Holders of Securities.
The Trust and the Company hereby agree to extend the benefits of this Agreement
to any Holder of Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) COUNTERPARTS. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) SEVERABILITY. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
15
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
CARRIAGE SERVICES CAPITAL TRUST
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Administrative Trustee
CARRIAGE SERVICES, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial
Officer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
16