EXHIBIT 10.8
PARTICIPANT SETTLEMENT AGREEMENT
SERVICE CORPORATION INTERNATIONAL
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
__________, 2001
The terms and conditions of this offering of up to 6,000,000 shares of common
stock of Service Corporation International (the "Company" or "SCI") are set
forth in the letter from the Company dated __________, 2001 (the "Letter") and
are incorporated herein by reference. A copy of the Letter is enclosed with this
Participant Settlement Agreement. Capitalized terms used herein without
definition shall have the meanings set forth in the Letter.
THIS ELECTION FORM MUST BE RECEIVED BY THE COMPANY BY 5:00 P.M., HOUSTON, TEXAS
TIME, ON OR BEFORE _______________, _______ ____, 2001 (THE "ELECTION
DEADLINE"), UNLESS EXTENDED TO A LATER TIME BY THE COMPANY AND X.X. XXXXXX
SECURITIES INC.
NOVEMBER __, 2001
PRESENT VALUE OF
ALL RETIREMENT EFFECTIVE
BENEFITS *WITHHOLDING TAX WITHHOLDING TAX
PARTICIPANT: DISCOUNTED 10%: LIABILITY: RATE:
----------- ----------------- ----------------- ---------------
[Participant Name] $ $ $
[Address 1] ----------- ---------- ----------
[Address 2]
* The Participant's withholding tax liability shown above is calculated on the
assumption that the Participant elects to receive all of the present value of
such Participant's retirement benefits (as shown above) in shares of SCI common
stock. The Participant's actual withholding tax liability will be calculated on
the present value of the Participant's retirement benefits plus the amount of
commissions paid to X.X. Xxxxxx Securities Inc. by the Company on the
Participant's behalf. (For the sake of convenience, the Company will contact the
Participant after the Election Deadline to make arrangements for the Participant
to satisfy the withholding tax liability associated with the amount of
commissions paid by the Company on such Participant's behalf.) If a Participant
elects to receive shares of common stock which he or she does not sell to X.X.
Xxxxxx Securities Inc. pursuant to the election in Form 3 below, such
Participant's withholding tax liability will be based upon the fair market value
of such shares of common stock on the day they are distributed to the
Participant.
Neither the Company nor X.X. Xxxxxx Securities Inc. shall have any liability to
the extent a Participant fails to submit a properly completed
Participant
Settlement Agreement, along with any required withholding tax payment, by the
Election Deadline.
Once accepted by the Company by its execution below, an election to receive
shares of SCI common stock or to sell all or any part of such shares to X.X.
Xxxxxx Securities Inc. as evidenced hereby is irrevocable and constitutes a
binding agreement of the Company, the Participant and X.X. Xxxxxx Securities
Inc.
THE COMPANY RESERVES THE RIGHT TO WITHDRAW ITS OFFER HEREUNDER AT ANY TIME PRIOR
TO ITS EXECUTION OF THIS
PARTICIPANT SETTLEMENT AGREEMENT.
1
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[ ] FORM 1 - CHECK HERE TO ELECT TO RECEIVE THE PRESENT VALUE OF ALL OR
PART OF YOUR RETIREMENT BENEFITS IN SHARES OF COMMON STOCK. The Participant
hereby irrevocably elects to receive in SCI common stock, on the terms and
subject to the conditions specified in the Letter, receipt of which is hereby
acknowledged, $___________ of the present value (calculated using a 10% annual
discount rate) of such Participant's vested retirement benefits, up to the
amount set forth in the table on the preceding page. The Participant
acknowledges that the actual number of shares of SCI common stock to be received
will be calculated by dividing the present value retirement benefit amount which
the Participant has elected to receive above by the average closing price per
share of the Company's common stock on the New York Stock Exchange for the five
trading days immediately after the Election Deadline (the "Distribution
Price"). The Participant further acknowledges that the present value retirement
benefit amount which the Participant has elected to receive above will be
rounded down to the nearest amount which will not require the Company to issue
fractional shares of its common stock.
The Participant acknowledges that making this election requires the
Participant to (i) open an account with X.X. Xxxxxx Securities Inc. or (ii) to
maintain a pre-existing account at X.X. Xxxxxx Securities Inc., and to provide
such account number to the Company in writing in the space below, in each case
for the deposit of shares of common stock to be received by the Participant
from the Company. The Participant also acknowledges that the Company will
deliver such shares of common stock electronically to X.X. Xxxxxx Securities
Inc. on behalf of the Participant to be placed in the Participant's account. If
the Participant already maintains an account at X.X. Xxxxxx Securities Inc. and
would like such shares deposited into that account, the account number is
______________________.
Please note that electing to receive shares of common stock requires a
determination of the method of payment of withholding tax liability in Form 2.
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Participant's Signature
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2
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FORM 2 - CHECK ONE OF THE FOLLOWING THREE BOXES TO INDICATE HOW YOU
WISH TO PAY FOR THE WITHHOLDING TAX LIABILITY ASSOCIATED WITH YOUR ELECTION IN
FORM 1.
METHOD OF PAYMENT FOR WITHHOLDING TAX LIABILITY (check and complete
appropriate box(es)):
[ ] CERTIFIED CHECK OR CASHIER'S CHECK IN THE AMOUNT OF
$________ PAYABLE TO
SERVICE CORPORATION INTERNATIONAL.
(SCI MUST RECEIVE ANY SUCH CERTIFIED CHECK OR CASHIER'S
CHECK PRIOR TO THE ELECTION DEADLINE).
[ ] WIRE TRANSFER IN THE AMOUNT OF $________ DIRECTED TO
SERVICE CORPORATION INTERNATIONAL, THE CHASE MANHATTAN
BANK, HOUSTON, TEXAS, ABA #0000-0000-0, CREDIT: SCI
MANAGEMENT LP, ACCOUNT #0000-000-0000. (SCI MUST
RECEIVE ANY SUCH WIRE TRANSFER PRIOR TO THE ELECTION
DEADLINE).
[ ] PURSUANT TO THE ELECTION IN FORM 3, AUTHORIZE X.X.
XXXXXX SECURITIES INC. TO DELIVER DIRECTLY TO THE
COMPANY PROCEEDS FROM THE SALE OF SHARES OF COMMON STOCK
EQUAL TO THE WITHHOLDING TAX LIABILITY IN THE AMOUNT OF
$____________.
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Participant's Signature
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3
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[ ] FORM 3 - CHECK HERE TO ELECT TO SELL ALL OR ANY PART OF THE SHARES
OF COMMON STOCK TO BE RECEIVED PURSUANT TO THE ELECTION IN FORM 1 TO X.X. XXXXXX
SECURITIES INC. For value received, the Participant hereby irrevocably elects to
sell to X.X. Xxxxxx Securities Inc. on the Closing Date $_________ in value of
the shares (such amounts to be rounded down to avoid fractional shares) of
common stock (the "Shares") received pursuant to the election in Form 1, with
payment for the Shares to be made on the third full business day following the
Closing Date. Please note that if you intend to sell shares of common stock to
X.X. Xxxxxx Securities Inc. to satisfy the withholding tax liabilities
associated with your election in Form 1, you must so indicate in Form 2.
The Participant acknowledges and agrees that the Shares may be sold by
X.X. Xxxxxx Securities Inc. to the market at prices higher or lower than the
Distribution Price, and that, pursuant to this
Participant Settlement Agreement,
the Participant shall only be entitled to receive from X.X. Xxxxxx Securities
Inc. the Distribution Price for each Share sold less any proceeds paid to SCI
directly to satisfy the Participant's withholding tax liability to the extent so
elected on Form 2.
In connection with the Participant's election to sell shares of common
stock to X.X. Xxxxxx Securities Inc., as set forth above, the Participant hereby
makes to X.X. Xxxxxx Securities Inc. and SCI the representations and warranties
set forth in Schedule A attached hereto, each of which is hereby incorporated
herein by reference.
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Participant's Signature
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4
IMPORTANT
PARTICIPANT SIGNS HERE:
The Participant hereby releases and forever discharges SCI and all of its
officers, directors, employees, representatives, agents, attorneys, accountants,
successors and affiliates (collectively, the "SCI Parties") from all causes of
action, suits, debts, accounts, agreements, damages, claims and demands
whatsoever in law or in equity (collectively, the "Claims") which the
Participant ever had, now has, or hereafter can, shall or may have against the
SCI Parties arising under or in connection with or relating to the Supplemental
Executive Retirement Plan (and any obligations related thereto) that occurred or
accrued prior to the date hereof; provided, however, that nothing herein shall
release SCI from any Claims by the Participant arising out of (1) SCI's
remaining obligation to make annual cash payments to the Participant if the
Participant has elected to receive a distribution of SCI common stock equal to
the present value of less than all of such Participant's vested retirement
benefits or (2) the covenants and agreements of SCI as set forth herein or in
the Letter.
PARTICIPANT
By:
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Date: , 2001
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Address:
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Phone:
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E-mail:
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*Must be signed by the Participant
exactly as name appears on the
front of this Settlement Agreement.
By its execution below, each of the Company and X.X. Xxxxxx Securities
Inc. hereby accepts and acknowledges the Participant's elections as described
above.
SERVICE CORPORATION INTERNATIONAL
By:
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Xxxxx X. Xxxxxxx
Senior Vice President,
General Counsel
and Secretary
X.X. XXXXXX SECURITIES INC.
By:
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Xxxxx Xxxxxx
Managing Director
5
SCHEDULE A
The Participant represents and warrants to X.X. Xxxxxx Securities Inc. and SCI
that:
(a) all consents, approvals, authorizations and orders
necessary for the execution and delivery by such Participant of the Agreement to
which this Schedule A is attached (the "Agreement") and for the sale and
delivery of the Shares to be sold by such Participant under the Agreement, have
been obtained; and such Participant has full right, power and authority to enter
into the Agreement and to sell, assign, transfer and deliver the Shares to be
sold by such Participant thereunder; the Agreement has been duly authorized,
executed and delivered by such Participant;
(b) the sale of the Shares to be sold by such Participant
under the Agreement and the compliance by such Participant with all of the
provisions of the Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Participant is a party or by which such
Participant is bound or to which any of the property or assets of such
Participant is subject, nor will such action result in any violation of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Participant or the property of such
Participant; and
(c) such Participant has good and valid title to the Shares to
be sold at the Closing Date by such Participant under the Agreement, free and
clear of all liens, encumbrances, equities or adverse claims; such Participant
will have, immediately prior to the Closing Date good and valid title to the
Shares to be sold at the Closing Date by such Participant, free and clear of all
liens, encumbrances, equities or adverse claims; and, upon delivery of the
certificates representing such Shares and payment therefor pursuant to the
agreement, good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or adverse claims, will pass to X.X. Xxxxxx Securities
Inc.
