EXHIBIT 10.1
SECOND AMENDMENT TO
SERVICE CORPORATION INTERNATIONAL
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN FOR SENIOR OFFICERS
(As Amended and Restated Effective as of December 31, 1993)
W I T N E S S E T H:
WHEREAS, Service Corporation International (the "Company") executed the
plan entitled "Service Corporation International Supplemental Executive
Retirement Plan for Senior Officers (as Amended and Restated Effective as of
December 31, 1993)" (hereinafter called the "Plan"); and
WHEREAS, the Company retained the right in Section 8.1 of the Plan to amend
the Plan from time to time; and
WHEREAS, the Company adopted, on February 27, 1995, the First Amendment to
the Plan, to be effective as of November 9, 1994; and
WHEREAS, the Company now wishes to clarify certain provision of the Plan as
amended by said First Amendment thereto, and to make other desired changes to
the Plan, by adopting this Second Amendment to the Plan:
NOW, THEREFORE, the Plan is hereby amended as follows:
A. Effective as of November 9, 1994:
1. Section 3.2, relating to the standard form of payment, is amended to
revise the heading of subsection (a) thereof, so that such heading provides
"Standard Form: Life and 180-Month Certain Annuity."
2. Section 3.2(b), is amended by revising the last sentence of the last
paragraph thereof to delete the period at the end thereof and to substitute
the words "by such Participant."
3. Section 3.2(c), is amended by adding the following sentence at the
end thereof:
"The opportunity to elect in-service commencement under this Section
3.2(c) shall be available only once to any Participant and, once such
an election is made, it may not be revoked by the Participant except
to the extent that such Participant requests, and the Committee
approves, a lump sum payment under Section 3.2(e) below."
4. Section 3.2(d), is amended by adding the following sentence at the
end thereof:
"The opportunity to elect in-service commencement under this Section
3.2(d) shall be available only once to any Participant and, once such
an election is made, it may not be revoked by the Participant except
to the extent that such Participant requests, and the Committee
approves, a lump sum payment under Section 3.2(e) below."
5. Section 3.2(e), is amended by adding the following sentence at the
end thereof:
"The opportunity to request, under this Section 3.2(e), a lump sum
payment after commencement of an annuity under Section 3.2(c) or (d)
above shall be available only once to any Participant and, once such a
request is made, it may not be revoked by such Participant."
6. Clause (i) of the first sentence of Article IV is amended in its
entirety to provide as follows:
"...(i) each Participant who, on the date of the Change of Control, (a)
is an active Employee of the Company, and (b) has not commenced receipt
of his Retirement Benefit under the Plan, a lump sum cash payment equal
to the Actuarially Equivalent value, as of the date of such Change of
Control, of the Accrued Benefit to which the Participant would have
been entitled if he had continued to earn Credited Service from the
date of the Change of Control to the date of his 65th birthday; and"
B. Effective as of January 1, 1997:
1. Article I, relating to definitions, is amended to insert in the
alphabetically appropriate place the new defined term "Cause," which shall
provide as follows:
""Cause" means the reason or reasons for which the Company terminates a
Participant's employment as such reasons are described in, and as the
quoted term is defined in, the latest employment agreement entered into
by and between the Company and each Participant, and such definition of
"Cause" is incorporated by reference into this Plan."
2. Section 3.2(b), relating to lump sum payments, is amended to add,
immediately after the subsection heading thereof, and immediately before the
first sentence thereof, the new paragraph heading that provides:
"(1)Participants May Request."
3. Section 3.2(b) is further amended by adding, immediately following the
last paragraph of paragraph (1), as so designated by this Amendment, the
following new paragraph (2) that provides in its entirety as follows:
"(2)Committee May Initiate. Regardless of whether a Participant
requests a single lump sum payment of his entire Retirement Benefit
pursuant to paragraph (1) of this Section 3.2(b), the Committee may, in
its sole discretion, determine that any Participant who terminates
employment with the Company for any reason (except a Participant who is
discharged by the Company for Cause) shall receive, as soon as
administratively feasible after such termination, a single lump sum
payment of the Actuarially Equivalent value (determined as of the
Participant's termination date) of his unpaid vested Retirement Benefit
otherwise payable upon his attainment of age 65.
Within such time as it considers appropriate under the
circumstances, the Committee shall notify a Participant whose
Retirement Benefit is to be paid pursuant to this paragraph (2) of
Section 3.2(b)."
4. Section 3.2(d), relating to in-service commencement of benefits, is
amended in its entirety to provide as follows:
"(d)In-Service Commencement of Retirement Benefits.
(1) Years Prior to 1997. During calendar years ending on or before
December 31, 1996, a Participant who is under the age of 65 but is at
least age 59, and is an active Employee of the Company, may elect to
receive his entire Retirement Benefit in the form of a monthly annuity
that is payable for the lesser of 180 months or his lifetime,
commencing as of the first day of the month following the later of
the date the Participant attains age 60 or the subsequent date
specified by the Participant that is prior to this age 65;
provided that the Participant's written election of such form of
payment is received by the Committee not less than 12 calendar months
before the applicable commencement date.
(2) Years Beginning After 1996. During calendar years beginning
after December 31, 1996, a Participant who is under the age of 65 but
is at least age 54, and is an active Employee of the Company, may elect
to receive his entire Retirement Benefit in the form of a monthly
annuity that is payable for the lesser of 180 months or his lifetime,
commencing as of the first day of the month following the later of the
date the Participant attains age 55 or the subsequent date specified by
the Participant that is prior to his age 65; provided that the
participant's written election of such form of payment is received by
the Committee not less than 12 calendar months before the applicable
commencement date.
(3) Rules Applicable to All Pre-Age 65 Commencements. Because the
Retirement Benefit annuity described in this Section 3.2(d) commences
before the Participant attains the age of 65, the monthly amount of the
Participant's annuity that would otherwise commence at his age 65 shall
be discounted to the Actuarially Equivalent value of such annuity having
a commencement date determined under paragraphs (1) or (2), whichever is
applicable. Moreover, the amount of any annuity commenced prior to age
65 pursuant to paragraphs (1) or (2) of this Section 3.2(d) shall not be
increased after its payment commencement date on account of any
subsequent increase in the Participant's years of Credited Service,
compensation, or otherwise; provided, however, that the Committee in its
sole discretion may provide for cost-of-living increases in the amount
of such annuity.
The opportunity to elect in-service commencement prior to age 65
under this Section 3.2(d) shall be available only once to any
Participant and, once such an election is made, it may not be revoked by
the Participant except to the extent that such Participant requests, and
the Committee approves, a lump sum payment under Section 3.2(e) below."
5. Section 6.3, relating to forfeiture for cause, is amended:
(1) by adding, immediately after the heading thereof and immediately
before the first sentence thereof, the new subsection heading "(a) General
Rule".;
(2) by revising the first sentence thereof to delete the words "fraud,
embezzlement, theft, commission of a felony, proven dishonesty in the
course of his employment that damaged the Company, or for disclosing trade
secrets of the Company" and to insert in their place the word "Cause";
(3) by revising the second sentence thereof in its entirety to provide
"The decision of the Committee as to whether a Participant was discharged
for Cause will be final.";
(4) by revising the fourth sentence to add, immediately after the word
"Section," the word "6.3(a)";
(5) by adding at the end of subsection (a), as so designated by this
Amendment, the following new subsection (b), which provides in its entirety
as follows:
"(b)Special Rule. Notwithstanding any provision of this Plan to the
contrary except the succeeding provisions of this subsection (b), in the
event that, at any time within the first ten calendar years after a
Participant (including for purposes of this subsection, a former
Participant) terminates employment with the Company, he becomes an
employee, director, partner, member, advisor, agent or consultant of any
business entity that is in competition with the Company or any of its
Subsidiaries or affiliates (the "Noncompete Rule"), such Participant's
entire Accrued Benefit attributable to his participation in the Plan
after December 31, 1996 shall be immediately forfeited, and neither such
Participant nor any Beneficiary shall have any claim to benefits that
accrued on or after January 1, 1997 under this Plan. After full
consideration of the facts presented on behalf of both the Company and
the Participant, the decision of the Committee as to whether Participant
has violated the Noncompete Rule shall be final.
In the event that a Participant violates the Noncompete Rule after
having received all or part of his Retirement Benefit that is subject to
forfeiture under that rule, such Participant shall be required, and by
agreeing to participate in this Plan each Participant specifically
agrees, to repay the Company the full amount of such Retirement Benefits
he has received, plus interest from the date of the violation of the
Noncompete Rule as determined by the Committee; and to make such
repayment at the time or times and in the manner determined by the
Committee. The interest rate shall be the weekly quoted one-year
Treasury bill rate at the last weekly auction held immediately before
the Committee's determination that such Participant has violated the
Noncompete Rule, plus one percent (1%).
By agreeing to participate in this Plan each Participant further
consents to the Company's deduction from any amounts the Company or any
of its Subsidiaries or affiliates owes to such Participant from time to
time (including amounts owed to such Participant as wages or other
compensation, fringe benefits, or other amounts owed to such Participant
by the Company) to the extent of the amount such Participant owes the
Company under this subsection (b). Whether or not the Company elects to
make any set-off in whole or in part under this subsection (b), if the
Company does not recover the full amount such Participant owed to it by
such Participant, calculated as set forth above, such Participant agrees
to pay the unpaid balance to the Company. Such Participant may be
released from this obligation to repay the Company only if the
Committee, in its sole discretion, determines that his action is not
detrimental to the best interests of the Company or any of its
Subsidiaries or affiliates.
The covenants in this subsection (b) shall not be held invalid or
unenforceable because of the specified period of time within which such
covenant is operative, but the maximum period of time in which such
covenants are operative is subject to determination by a final judgement
of any court that has jurisdiction over the parties and subject matter."
IN WITNESS WHEREOF, the company adopts, approves and consents to the
amendment of the Plan by this Second Amendment this 21st day of April, 1997, to
be effective as of the dates provided herein.
SERVICE CORPORATION INTERNATIONAL
ATTEST:
By: /s/ JACK L. STONER
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By: /s/ HELEN R. DUGAND Name: JACK L. STONER
------------------------- Title: Sr. V.P. Administration
Name: HELEN R. DUGAND
Title: Dir. Human Resources