VOTING AGREEMENT
This Voting Agreement ("Agreement"), dated effective as of August 8, 1996 is
among those stockholders of Carriage Service, Inc., a Delaware corporation
("Corporation") whose signatures appear on the signature pages of this
Agreement under the caption "Stockholders" (referred to herein individually
as a "Stockholder" and collectively as the "Stockholders") and, where
applicable, the respective spouses of the Stockholders.
1. INTRODUCTION. The Corporation and the Stockholders believe that it
is in the best interests of each, respectively, to restrict transfers of the
Stock of the Corporation and adopt certain voting restrictions on shares of
the Stock. Accordingly, in consideration of the mutual promises contained
herein, and subject to the terms and conditions herein set forth, the parties
have entered into this Agreement.
2. CERTAIN DEFINITIONS. As used in this Agreement:
2.1. The Term "Board" means the Board of Directors of the Corporation
and any duly authorized committee thereof. All determinations by the Board
required pursuant to the terms of this Agreement to be made by the Board
shall be binding and conclusive.
2.2. The Term "Competitor" means any person or entity who is
engaged in the funeral service, cemetery, crematory or related lines of
business that, at the time of any proposed Disposition (or at any time within
the twelve-month period preceding the date of the proposed Disposition), has
any operations within a 50-mile radius of any locations of the Corporation or
its Affiliates; and includes any other person or entity who directly, or
indirectly through one or more intermediaries, controls, is controlled by or
is under common control with any such person or entity.
2.3. The term "Disposition" shall mean any direct or indirect
transfer, assignment, sale, gift, pledge, hypothecation or other encumbrance,
or any other disposition, of Stock (or any interest therein or right thereto)
or of all or part of the voting power (other than the granting of a revocable
proxy) associated with the Stock (or any interest therein) whatsoever, or any
other transfer of beneficial ownership of Stock whether voluntary or
involuntary, including, without limitation (a) as part of any liquidation of
the Stockholder's assets or (b) as a part of any reorganization of a
Stockholder pursuant to the United States or other bankruptcy law or other
similar debtor relief laws.
2.4. The term "Stock" means (a) all shares of Class A Common Stock,
$.01 par value, and Class B Common Stock, $.01 par value, of the Corporation
owned by each of the Stockholders on the date hereof, (b) all shares of either
Class A or Class B Common Stock hereafter issued by the Corporation to or
acquired by any Stockholder, whether in connection with a purchase,
issuance, grant, stock split, stock dividend, reorganization, warrant, option,
convertible security, right to acquire or otherwise, (c) all shares of
preferred stock, $.01 par value, of the Corporation ("Preferred Stock") owned
by each of the Stockholders on the date hereof, and (d) all securities of the
Corporation or any other corporation or entity which any Stockholder acquires
in respect of his, her or its shares of either Class A or Class B Common Stock
in connection with any exchange, merger, recapitalization, consolidation,
reorganization or other transaction to which the Corporation is a party. All
references herein to Stock owned by a Stockholder include the community
interest or similar marital property interest, if any, of the spouse of such
Stockholder in such Stock.
3. DISPOSITIONS TO COMPETITORS. Notwithstanding anything in this
Agreement to the contrary, no Stockholder shall, without the prior written
consent of Stockholders holding Stock constituting at least 80% of the votes
of all Stock subject to this Agreement, make any Disposition to any
Competitor. Any Disposition in violation of this Section 3 shall be null and
void. If such Stockholders approve any such Disposition, then all of the
provisions of this Agreement (including this Section 3) shall apply to any
subsequent transaction by the transferee of such Stock or any interests
therein (except as expressly excluded by the other terms in this Agreement).
4. VOTING RESTRICTIONS. The Stockholders agree that no Stockholder
shall vote its shares of Stock (or any other securities of the Corporation
having voting rights) in favor of any of the following actions unless
Stockholders holding Stock constituting at least 80% of the votes entitled to
be cast on such action are in favor of such action:
(a) a merger, consolidation or other similar corporate action
involving the Corporation or one of its Subsidiaries, on the one hand,
and a Competitor on the other other hand, other than in connection with
acquisitions of funeral homes or cemeteries by the Corporation that are
structured as mergers or consolidations wherein the Corporation is the
surviving entity or owns more than 50% of the surviving entity's capital
stock;
(b) the sale, lease, exchange or other disposition of all or
substantially all of the assets and properties of the Corporation and
its Subsidiaries to a Competitor; or
(c) any amendment to Article V, VI or VII of the Company's Amended
and Restated Certificate of Incorporation.
5. MISCELLANEOUS PROVISIONS.
5.1. The Corporation shall pay all expenses incident to the
negotiation (prior to its execution) and preparation of this Agreement
including fees to legal counsel.
5.2. This Agreement shall be construed by, subject to and governed
in accordance with the internal laws of the State of Delaware without giving
effect to conflict-of-laws or other principles which may result in the
application of laws other than the internal laws of the State of Delaware.
5.3. Whenever the context requires, the gender of all words used
herein shall include the masculine, feminine and neuter, and the number of
all words shall include the singular and plural.
5.4. This Agreement shall be binding upon the Corporation, the
Stockholders, any spouses of the Stockholders, and their respective heirs,
executors, administrators and permitted successors and assigns.
5.5. This Agreement may be amended or waived from time to time by an
instrument in writing signed by the Corporation and Stockholders holding
Stock constituting at least
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80% of the votes of all Stock subject to this Agreement at the time of such
amendment, and such instrument shall be designated on its face as an
"Amendment" to this Agreement; PROVIDED, HOWEVER, that any amendment which
has the effect of making the restrictions on the disposition of Stock
materially more onerous shall require the vote of all Stockholders affected
by such amendment; and PROVIDED, FURTHER, that this Agreement may be amended
by the Corporation without the consent of any Stockholder to cure any
ambiguity or to cure, correct or supplement any defective provisions
contained herein, or to make any other provision with respect to matters or
questions hereunder as the Corporation may deem necessary or advisable;
PROVIDED that such action shall not affect adversely the interest of any
Stockholder.
5.6. This Agreement shall terminate automatically upon the earlier
of (a) the dissolution of the Corporation, (b) the occurrence of any event
which reduces the number of Stockholders to one in accordance with the terms
hereof, (c) the written approval of Stockholders holding Stock constituting
at least 80% of the votes of all Stock subject to this Agreement, or (d) ten
years from the date of this Agreement.
5.7. Any Stockholder who disposes of all his Stock in conformity
with the terms hereof shall cease to be a party to this Agreement and shall
have no further rights or obligations hereunder.
5.8. The spouses of the individual Stockholders are fully aware of,
understand and fully consent and agree to the provisions of this Agreement
and its binding effect upon any community property interests or similar
marital property interests in the Stock they may now or hereafter own, and
agree that the termination of their marital relationship with any Stockholder
for any reason shall not have the effect of removing any Stock of the
Corporation otherwise subject to this Agreement from the coverage hereof and
that their awareness, understanding, consent and agreement are evidenced by
their signing this Agreement.
5.9. This Agreement may be executed in multiple counterparts, any
one of which need not contain the signature of more than one party, but all
of which counterparts taken together shall constitute one and the same
instrument.
5.10. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, such declaration shall
not affect the validity of the remaining provisions.
5.11. This Agreement sets forth the entire agreement of the parties
hereto as to the subject matter hereof and supersedes all previous agreements
among all or some of the parties hereto, whether written, oral or otherwise.
Without limiting the generality of the foregoing, the Stockholders agree that
this Agreement shall replace and supersede the Stockholders Agreement dated
September 25, 1995 (together with the Voting Agreement of even date herewith
among the Stockholders and certain holders of the Corporation's Series C
Preferred Stock and options to purchase Stock), which shall be deemed
terminated effective as of the effective date of this Agreement.
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5.12. No person or entity not a party to this Agreement shall have
rights under this Agreement, as a third party beneficiary or otherwise.
5.13. If, and as often as, there are any changes in the Stock by way
of stock split, stock dividend, combination or reclassification, or through
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions hereof, as may
be required, so that the rights, privileges, duties and obligations hereunder
shall continue with respect to the Stock as so changed.
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This Agreement is executed by each Stockholder and spouse of a
Stockholder to be effective as of the date first above written.
STOCKHOLDERS
/s/ C. XXXXX XXXXXX
-----------------------------------
C. Xxxxx Xxxxxx, individually and as
General Partner of the 1996 Xxxxxx
Family Partnership, Ltd.
/s/ XXXXXXXXX X. XXXXXX
-----------------------------------
Xxxxxxxxx X. Xxxxxx, Spouse
/s/ XXXXXX X. XXXXX
-----------------------------------
Xxxxxx X. Xxxxx, individually and as
General Partner of the 1996 Xxxxx
Family Partnership, Ltd.
/s/ XXXXX X. XXXXX
-----------------------------------
Xxxxx X. Xxxxx, Spouse
/s/ XXXX X. XXXXXX
-----------------------------------
Xxxx X. Xxxxx, individually and as
Trustee of the Xxxxxx X. Xxxxx 1996
Truste and the Xxxxx X. Xxxxx 1996
Trust
/s/ XXXXX X. XXXXXX
-----------------------------------
Xxxxx X. Xxxxxx, Spouse
/s/ XXXX X. XXXXXXX
-----------------------------------
Xxxx X. Xxxxxxx
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APPLEWOOD ASSOCIATES, L.P.
By: /s/ XXXXX X. XXXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxxx, General Partner
/s/ XXXXX X. XXXXXXXXX /s/ XXXXXXXX XXXXXX
------------------------------------- -------------------------------------
Xxxxx X. Xxxxxxxxx Xxxxxxxx Xxxxxx
/s/ [illegible] FINGERHUT /s/ XXXXX XXXX XXXXXX
------------------------------------- -------------------------------------
Spouse Spouse
/s/ XXXXX XXXXXX /s/ XXXXXX X. XXXXX
------------------------------------- -------------------------------------
Xxxxx Xxxxxx Xxxxxx X. Xxxxx
/s/ Xxxxxxxx Xxxxxx ----
------------------------------------- -------------------------------------
Spouse Spouse
/s/ XXXXXXX X. XXXXXXX /s/ XXXX XXXXXX
------------------------------------- -------------------------------------
Xxxxxxx X. Xxxxxxx Xxxx Xxxxxx
/s/ [illegible] X. XXXXXXX ----
------------------------------------- -------------------------------------
Spouse Spouse
LONGBOAT KEY ASSOCIATES
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxx, General Partner
WOODLAND AND PARTNERS
By: /s/ XXXXX XXXXXXXXXX
-----------------------------------
Xxxxx Xxxxxxxxxx, General Partner
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/s/ XXXXXX X. XXXXXXX Xxxxx Xxx Xxxxxxx Trust
-------------------------------------
Xxxxxx X. Xxxxxxx
By: /s/ [illegible]
----------------------------------
Trustee
/s/ XXXXX X. XXXXXXX By: /s/ [illegible]
------------------------------------- ----------------------------------
Xxxxx X. Xxxxxxx Trustee
By: /s/ [illegible]
----------------------------------
/s/ XXXXX XXX XXXXXXX Trustee
-------------------------------------
Xxxxx Xxx Xxxxxxx
Xxxxxx Xxxx Descendants Trust
/s/ XXXXX XXXXXXX By: /s/ [illegible]
------------------------------------- ----------------------------------
Xxxxx Xxxxxxx Trustee
By: /s/ XXXXX XXX XXXX XXXXXXX
----------------------------------
/s/ XXXX XXXXXXX XXXXXXX Trustee
------------------------------------
Xxxx Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxx Xxxxxxx Trust
By: /s/ [illegible]
----------------------------------
Xxxx Xxxxxxx Xxxxxxx 1989 Trust Trustee
By: /s/ [illegible] By: /s/ [illegible]
---------------------------------- ----------------------------------
Trustee Trustee
By: /s/ [illegible]
---------------------------------- Xxxxxx Xxxx Xxxxxxx 1987 Trust
Trustee
By: /s/ XXXXX XXX XXXX XXXXXXX
----------------------------------
Trustee
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