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Exhibit 10.10
TERMINATION AGREEMENT
TERMINATION AGREEMENT made and entered into effective as of the 6th
day of October, 1995, between Service Corporation International, a Texas
corporation (the "Company"), and Xxxxxx X. Xxxxx ("Xxxxx");
WHEREAS, the Company and Xxxxx are currently parties to an Employment
Agreement dated November 11, 1991, and amended and restated as of August 12,
1992 and as further amended as of May 12, 1993 (the "1991 Agreement"), and a
Supplemental Agreement effective as of February 16, 1995 (the "Supplemental
Agreement")
WHEREAS, the Company and Xxxxx desire to enter into certain agreements
regarding the relationship between the Company and Xxxxx and the expiration of
the 1991 Agreement and the Supplemental Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the Company and Xxxxx agree as follows:
1. Consideration. On the date hereof, the Company will pay Xxxxx
a bonus of $19,500.
2. Options. The outstanding stock options held by Xxxxx to
purchase shares of common stock of the Company (under the Company's 1986 Stock
Option Plan, as amended and restated) and Equity Corporation International
("ECI") on the date hereof have been or are fully vested hereby as of this date
and shall be exercisable by Xxxxx for three months from the date of this
Agreement, which three month period shall end on January 6, 1996. The number of
shares and the exercise prices are set forth on Exhibit X. Xxxxx also
acknowledges that the Company may defer delivery of the ECI common stock under
Section 4 of the Option Agreement dated October 19, 1994 (the "ECI Agreement")
between the Company and Xxxxx and that the resale of such stock may be
restricted; provided, however, if Xxxxx exercises his option under the ECI
Agreement, the Company shall immediately seek to have ECI issue a certificate
to Xxxxx for the shares to which he is entitled because of such exercise and
shall deliver such certificate (which may have a legend reflecting such
restrictions) to Xxxxx promptly upon the issuance thereof by ECI. A copy of
the ECI Agreement and the Company's ECI Stock Option Plan are attached hereto
as Exhibit B. Prior to the date hereof, Xxxxx has exercised his options to
purchase shares of common stock of Service Corporation International (Canada)
Limited.
3. Release. On the date hereof, Xxxxx agrees to deliver to the
Company a Release in the form attached hereto as Exhibit C.
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4. Termination of 1991 Agreement and the Supplemental Agreement.
The Company and Xxxxx hereby agree and acknowledge that the 1991 Agreement
shall terminate on the date hereof, except for Sections 9, 11, 12 and 14
thereof, and that Xxxxx shall cease to be an employee of the Company as of this
date. The Company and Xxxxx hereby agree and acknowledge that the Supplemental
Agreement shall terminate on the date hereof, except for Section 4 and the
first sentence of Section 2 thereof.
5. Consultation Agreement. On the date hereof, the Company and
Xxxxx are entering into the Consultation Agreement in the form attached hereto
as Exhibit D.
6. Senior Executive Retirement Plan (the "Plan"). Pursuant to
the Plan, Xxxxx (or in the event of his death his estate or heirs) shall
receive monthly payments of $15,828 for 15 years (total payments of
$2,849,040). Such payments shall be payable on the date hereof and on the
first day of each month hereafter through September 1, 2010. A copy of the Plan
is attached hereto as Exhibit E.
7. Cash Balance Plan ("Cash Plan"). As of December 31, 1994,
Xxxxx'x account balance under the Cash Plan was $127,084.89, and his account
under the Cash Plan shall receive a service credit and interest through October
6, 1995. Xxxxx shall be entitled to have his entire account balance in the
Cash Plan paid in accordance with the terms of the Cash Plan. A copy of the
Cash Plan is attached hereto as Exhibit F.
8. Termination of Certain Benefits. Effective on the date
hereof, except as provided herein, Xxxxx'x participation in all Company benefit
plans will terminate, including, without limitation, the Employee's
participation in the following benefits:
(a) All awards and vesting under the 1993 Long-Term
Incentive Stock Option Plan
(b) All unvested restricted stock awards and vesting
under the Company's Amended 1987 Stock Plan
(c) Accrual of further benefits under the Company's cash
balance plan
(d) Business travel insurance
(e) Financial/tax planning reimbursement
(f) Company automobile
(g) Office space and secretary support
(h) Aviation benefits
9. Promissory Note. On the date hereof, Xxxxx will pay the
$525,000 unpaid principal amount of the Promissory Noted dated August 19, 1993,
of Xxxxx payable to the Company. A copy of such Note marked "Paid" is attached
hereto as Exhibit G. The original of such Note is being delivered to Xxxxx at
the time of execution of this Agreement.
10. Expenses. After the date hereof, Xxxxx will pay to the
Company any amounts owing by him as of October 6, 1995, and the Company will
reimburse Xxxxx for
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any reimbursable business expenses incurred by him as an employee of the
Company which have not previously been reimbursed by the Company.
11. Other Benefits. The following benefits provided by the
Company to Xxxxx prior to the date hereof shall continue as set forth below:
(a) Group Health and life insurance will continue to
February 16, 1998, with the Company paying the employer portion of the
premium and Xxxxx paying the balance of the premium.
(b) Executive medical reimbursement will continue to
February 16, 1998, at the Company's expense.
(c) The Salary Continuation Agreement dated August 21,
1990, as amended by the First Amendment dated as of August 10, 1994,
remains in effect in accordance with its terms.
(d) Xxxxx may continue executive carve out insurance at
his expense under policy no. 2003297 with Security Life of Denver.
(e) Xxxxx may continue individual disability insurance at
his expense.
After February 16, 1998, Xxxxx will have all rights then provided by law to
continue the insurance referred to in clauses (a) and (b) above at his expense.
12. Legal Proceedings. Xxxxx agrees that he will cooperate with
the Company in defense of all litigation involving Xxxxx as a party or in legal
proceedings involving the Company or its subsidiaries or affiliates in matters
in which Xxxxx'x testimony shall be required. The Company agrees to hold Xxxxx
harmless from judgments in any amounts taken against Xxxxx in all litigation
where Xxxxx is a defendant because of acts of commission or omission during the
performance of his duties as an officer and employee of the Company except
those acts (if any) by Xxxxx that constituted actual fraud against or that were
intentionally and wilfully taken to cause material harm to the Company or its
subsidiaries or affiliates. The Company and its subsidiaries and affiliates
shall not bring any third party action against Xxxxx, or seek any contribution
from Xxxxx, on account of any litigation or threatened litigation against the
Company, its subsidiaries or affiliates. The Company agrees to promptly pay
the reasonable attorney's fees and other expenses of Xxxxx to defend him in any
litigation or threatened litigation in which Xxxxx is or may be a defendant
with the Company, its subsidiaries or affiliates or in which Xxxxx'x testimony
is required, and Xxxxx shall select his attorneys for all such matters, subject
to the prior written approval by the Company, which approval shall not be
unreasonably withheld. The provisions of this section apply to all types of
proceedings in all courts of competent jurisdiction involving administrative
trials, civil trials and criminal trials. The Company and Xxxxx agree and
stipulate that the obligations under this section shall not
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in any way influence or be construed to influence Xxxxx as to the content of
any testimony or other evidence that Xxxxx may provide in any proceedings. The
obligations of the Company set forth in this section shall be conditioned upon
and subject to Xxxxx providing written notice to the Company within ten days of
his becoming aware of any claim, demand, action, cost or other occurrence which
could give rise to Xxxxx'x rights under this section.
13. Employment. Nothing in this Agreement shall prevent Xxxxx
from obtaining employment with any other entity while serving as a consultant
to the Company so long as Xxxxx complies with the provisions of Sections 9, 11,
12 and 14 of the 1991 Agreement and Section III of the Consultation Agreement.
Any remuneration and other benefits received by Xxxxx in such employment shall
not reduce the remuneration and other benefits to be provided to Xxxxx pursuant
to the provisions hereof.
14. Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be deemed to
have been delivered on the date personally delivered or on the date mailed,
postage prepaid, by certified mail, return receipt requested, or telegraphed
and confirmed if addressed to the respective parties as follows:
If to Xxxxx:
Xxxxxx X. Xxxxx
0000 Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
If to the Company:
Service Corporation International
0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
15. Legal Fees and Expenses. The Company agrees to pay promptly
as incurred, to the full extent permitted by law, all legal fees and expenses
which Xxxxx may reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Company, Xxxxx or others of the validity or
enforceability of, or liability under, any provision of this Agreement,
providing the issue or dispute, with respect to which such fees and expenses
relate arises prior to February 16, 1998.
16. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law but if any
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provision of this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
17. Assignment. This Agreement may not be assigned by Xxxxx.
Neither Xxxxx, his spouse nor estate shall have any right to commute, encumber
or dispose of any right to receive payments hereunder, it being that such
payments and the right thereto are nonassignable and nontransferable.
18. Binding Effect. Subject to the provisions of Section 17 of
this Agreement, this Agreement shall be binding upon and inure to the benefit
of the parties hereto, Xxxxx'x heirs and personal representatives, and the
successors and assigns of the Company.
19. Captions. The section and paragraph headings in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
20. Governing Law. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Texas.
21. Counterparts. This Agreement may be executed in multiple
original counterparts, each of which shall be deemed an original, but all of
which together shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
Houston, Texas, as of the date and year first above written.
SERVICE CORPORATION INTERNATIONAL
By: /s/ XXXXX X. SHELGER
-------------------------------------
Senior Vice President General Counsel
/s/ XXXXXX X. XXXXX
----------------------------------------
Xxxxxx X. Xxxxx
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CONSULTATION AGREEMENT
THIS AGREEMENT made this 6th day of October, 1995, between Service
Corporation International, a Texas corporation (the "Company"), and Xxxxxx X.
Xxxxx (the "Consultant");
W I T N E S S E T H:
ARTICLE I
CONSULTATION
1.1 Term and Duties. The Company hereby retains the Consultant to
serve the Company as a general advisor and consultant to management on all
matters pertaining to the business of the Company as may be requested from time
to time by the Chief Executive Officer of the Company and the Consultant agrees
to render to the Company such services of an advisory or consultative nature
upon the terms and conditions hereinafter set forth. The Consultant shall be
available to advise and consult with the Chairman of the Board and Chief
Executive Officer of the Company concerning matters the Consultant was involved
in as Chief Financial Officer of the Company or as a member of the Company's
Board of Directors or any Committee thereof, including, without limitation,
financing arrangements, acquisitions, financial reporting issues and corporate
planning. The Consultant shall make himself available for the required
consulting upon request by the Chairman of the Board or Chief Executive Officer
of the Company at least 24 hours in advance of the intended time of the
commencement of the requested consulting services and the Consultant shall be
available to provide such requested consulting services at least ten hours per
week, but not more than 40 hours per month, on a non- cumulative basis. The
Consultant's duties will commence on the date of this Agreement and terminate
on October 6, 2005.
1.2 Compensation. In consideration for the Consultant's services,
covenant not to compete and other obligations hereunder, the Company will pay
the Consultant monthly installments of $31,667. Such installments shall be
payable on the date hereof and on the first day of each month hereafter until
the date on which the payments made hereunder aggregate $4,325,000. A
prepayment of $525,000 of such aggregate amount is being made on the date
hereof and, on January 2, 1996, an additional prepayment of $835,000 shall be
made by the Company to the Consultant. Such payment shall be paid to
Consultant on said date notwithstanding the notice and grace period described
in Section 4.3 herein. The amount of the monthly installments hereunder has
been computed based on the aggregate payments due hereunder reduced by the
prepayment made on the date hereof ($3,800,000). The prepayment to be made on
January 2, 1996 shall be applied to reduce the monthly installments otherwise
due hereunder in the
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inverse order of their maturities. The Consultant shall have the right to
designate the person or entity to which such payments are to be made in the
event of the Consultant's death prior to the final payment hereunder, and the
Consultant shall have the right to change from time to time his designation of
the person(s) or entity(s) who is to receive the payments the Consultant would
have received thereunder had he not died, and such designations shall be in
writing and given to the Company; provided, however, if there is no such
designation in effect at the time of Consultant's death, the payments that
would have been made to the Consultant hereunder shall instead be made to the
personal representative of his estate.
1.3 Expenses, Space and Support. During the term of this
Agreement, the Consultant shall be entitled to receive prompt reimbursement for
reasonable expenses incurred in performing his duties hereunder in accordance
with the policies, practices and procedures of the Company from time to time in
effect. The Company will provide, at its offices, the Consultant with any
space and support necessary for him to perform his duties hereunder.
ARTICLE II
DISCLOSURES OF INFORMATION
The Consultant acknowledges that in the course of his previous
employment, and of his engagement hereunder, by the Company he has received and
will receive certain trade secrets, programs, lists of customers and other
confidential information and knowledge concerning the business of the Company
(hereinafter collectively referred to as "Information") which the Company
desires to protect. The Consultant understands that the Information is
confidential and he agrees not to reveal the Information to anyone outside the
Company so long as the confidential or secret nature of the Information shall
continue. The Consultant further agrees that he will at no time use the
Information in competing with the Company. Upon termination of this Agreement,
the Consultant shall surrender to the Company all papers, documents, writings
and other property produced by him or coming into his possession by or through
his previous employment and his engagement hereunder or relating to the
Information and the Consultant agrees that all such materials will at all times
remain the property of the Company.
ARTICLE III
NONCOMPETITION
During the term of this agreement, the Consultant agrees he will not,
as principal, agent, trustee or through the agency of any corporation,
partnership, association or agent or agency engage in any business which
conducts a business in competition with the Company or any affiliated
corporation, and shall not be the owner of more than 1% of the outstanding
capital stock of any corporation, or an officer, director or employee of any
corporation (other than the Company or a corporation affiliated with the
Company), or a member or employee of any partnership, or an owner or employee
of any other business,
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which conducts a business in competition with the Company or any affiliated
corporation. In the event that the provisions of Article III should ever be
deemed to exceed the time, geographic or occupational limitations permitted by
applicable laws, then such provisions shall be reformed to the maximum time,
geographic or occupational limitations permitted by applicable law.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be deemed to
have been delivered on the date personally delivered or on the date mailed,
postage prepaid, by certified mail, return receipt requested, or telegraphed
and confirmed if addressed to the respective parties as follows:
If to the Consultant:
Xxxxxx X. Xxxxx
0000 Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
If to the Company:
Service Corporation International
0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
4.2 Legal Proceedings. The Consultant agrees that he will
cooperate with the Company in defense of all litigation involving the
Consultant as a party or in legal proceedings involving the Company or it
subsidiaries or affiliates in matters in which the Consultant's testimony shall
be required. The Company agrees to hold the Consultant harmless from judgments
in any amounts taken against the Consultant in all litigation where the
Consultant is a defendant because of acts of commission or omission during the
performance of this duties as a consultant to the Company except those acts (if
any) by the Consultant that constituted actual fraud against or that were
intentionally and wilfully taken by the Consultant to cause material harm to
the Company or its subsidiaries and affiliates. The Company and its
subsidiaries and affiliates shall not bring any third party action against the
Consultant, or seek any contribution from the Consultant, on account of any
litigation or threatened litigation against the Company, its subsidiaries or
affiliates. The Company agrees to promptly pay the reasonable attorney's fees
and other expenses of the Consultant to defend him in any litigation or
threatened litigation in which
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the Consultant is or may be a defendant with the Company, its subsidiaries or
affiliates or in which the Consultant's testimony is required, and the
Consultant shall select his attorneys for all such matters, subject to the
prior written approval by the Company, which approval shall not be unreasonably
withheld. The provisions of this section apply to all types of proceedings in
all courts of competent jurisdiction involving administrative trials, civil
trials and criminal trials. The Company and the Consultant agree and stipulate
that the obligations under this section shall not in any way influence or be
construed to influence the Consultant as to the content of any testimony or
other evidence that that Consultant may provide in any proceeding. The
obligations of the Company set forth in this section shall be conditioned upon
and subject to the Consultant providing written notice to the Company within
ten days of his becoming aware of any claim, demand, action, cost or other
occurrence which could give rise to the Consultant's rights under this section.
4.3 Interest. If the Consultant does not receive from the Company
any payment provided for under this Agreement at the time called for hereunder,
the Consultant shall give the Company written notice that said payment was not
received and the Company shall have five days grace period to remit such
payment to the Consultant. In the event the Company fails to make payment to
the Consultant after receipt of such notice and the expiration of the grace
period, the Consultant shall be entitled to recover such payment plus interest
thereof at the rate of 10% per annum from the due date hereof until received.
4.4 Notice and Opportunity to Cure. The Consultant shall not be
considered to have violated any obligation, duty or covenant (each referred to
herein as "duty") under this Agreement unless and until (a) the Company first
gives the Consultant written notice stating (i) specifically what the Company
alleges the Consultant has done or failed to do in violation of a duty under
this Agreement, and (ii) a reasonable period (which shall be not less than 15
days if the alleged violation concerns a duty under Article I of this
Agreement, or shall be not less than five days if it concerns a duty under
Article II or Article III of this Agreement) after the Consultant's receipt of
such written notice within which to cure such alleged violation, and (b) the
Consultant fails to cure such alleged violation within such cure period to the
reasonable satisfaction of the Company. In the case of the Consultant's duties
under Article I of this Agreement, the Company and the Consultant agree that if
after consultation services are requested by the Company's Chairman of the
Board or Chief Executive Officer and before the end of the cure period for any
alleged violation of the Consultant's duty to provide such requested consulting
services the Consultant dies or, due to physical or mental illness or
infirmity, becomes unable to consult with the Company's Chairman of the Board
or Chief Executive Officer, the Consultant shall be deemed to have cured such
alleged violation for all purposes of this Agreement so that this failure to
actually provide such requested consulting services shall not constitute a
violation of his duties under Article I of this Agreement and, further, after
the Consultant's death and throughout any period while the Consultant is unable
to provide consulting services due to physical or mental illness or injury, the
Consultant shall never be considered to have violated any duty under Article I
of this Agreement. The Company shall not be considered to have violated any
duty under this Agreement unless and until (x) the Consultant first gives the
Company written notice stating (i) specifically
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what the Consultant believes the Company has done or failed to do in violation
of a duty under this Agreement, and (ii) a reasonable period (which shall be
five days if the alleged violation concerns a duty of the Company to make a
payment to the Consultant or to his named beneficiary if he is deceased, or
shall be not less than five days if the alleged violation concerns any other
duty of the Company under this Agreement) after the Company's receipt of such
written notice within which to cure the alleged violation, and (y) the Company
fails to cure such alleged violation within such cure period. If either party
receives a notice under this section from the other and fails to cure the
alleged violation within the cure period, the party asserting such violation
may pursue any legal or equitable remedies available to such party against the
other on account of the alleged violation stated in such notice, including
specific performance; provided, however, if the Consultant is deceased the
Company may not withhold any payment scheduled to be paid after the
Consultant's death under this Agreement to the beneficiary named by the
Consultant as an offset against or otherwise as a means of obtaining any
damages the Company alleges it has sustained due to an alleged violation by the
Consultant before his death of any duty under this Agreement.
4.5 Legal Fees and Expenses. The Company agrees to pay promptly
as incurred, to the full extent permitted by law, all legal fees and expenses
which Consultant may reasonably incur as a result of any contest (regardless of
the outcome thereof) by the Company, Consultant or others of the validity or
enforceability of, or liability under, any provision of this Agreement,
providing the issue or dispute, with respect to which such fees and expenses
relate arises prior to February 16, 1998.
4.6 Specific Performance. The Consultant acknowledges that a
remedy at law for any breach or attempted breach of Article II or Article III
of this Agreement, and any failure to be available for, or non-performance or
inadequate performance of consulting services required under Section 1.1, will
be inadequate, agrees that the Company shall be entitled to specific
performance and injunctive and other equitable relief in case of any such
breach or attempted breach, and further agrees to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or any other equitable relief.
4.7 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
4.8 Assignment. Except as provided in Article 1.2 (concerning the
payment after the Consultant's death of payments to person(s) or entity(s)
designated by him or to the personal representative of his estate), this
Agreement may not be assigned by the Consultant. Neither the Consultant, his
spouse nor estate shall have any right to commute, encumber or dispose of any
right to receive payments hereunder, it being agreed that such payments and the
right thereto are nonassignable and nontransferable.
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4.9 Binding Effect. Subject to the provisions of Section 4.8 of
this Agreement, this Agreement shall be binding upon and inure to the benefit
of the parties hereto, the Consultant's heirs and personal representatives, and
the successors and assigns of the Company.
4.10 Captions. The section and paragraph headings in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
4.11 Governing Law. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Texas.
4.12 Counterparts. This Agreement may be executed in multiple
original counterparts, each of which shall be deemed an original, but all of
which together shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
Houston, Texas as of the date and year first above written.
SERVICE CORPORATION INTERNATIONAL
By /s/ XXXXX X. SHELGER
----------------------------------
Senior Vice President
General Counsel
/s/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx
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