Exhibit 10.44
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement ("Agreement") between Stewart
Enterprises, Inc., a Louisiana corporation (the "Company"), and Charles L.
Tilis (the "Employee") is dated as of November 1, 1997 (the "Change of
Control Agreement Date").
ARTICLE I
DEFINITIONS
1.1 EMPLOYMENT AGREEMENT. After a Change of Control (defined below),
this Agreement supersedes the Employment Agreement dated as November 1,
1997 between Employee and the Company (the "Employment Agreement") except
to the extent that certain provisions of the Employment Agreement are
expressly incorporated by reference herein. After a Change of Control
(defined below), the definitions in this Agreement supersede definitions in
the Employment Agreement, but capitalized terms not defined in this
Agreement have the meanings given to them in the Employment Agreement.
1.2 DEFINITION OF "COMPANY". As used in this Agreement, "Company"
shall mean the Company as defined above and any successor to or assignee of
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) all or substantially all of the assets or business of the
Company.
1.3 CHANGE OF CONTROL DEFINED. "Change of Control" shall mean:
(a) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than 30% of the outstanding shares of
the Company's Class A Common Stock, no par value per share (the
"Common Stock"); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a
Change of Control:
(i) any acquisition of Common Stock directly from the
Company,
(ii) any acquisition of Common Stock by the Company,
(iii) any acquisition of Common Stock by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or
(iv) any acquisition of Common Stock by any corporation
pursuant to a transaction that complies with clauses (i), (ii)
and (iii) of subsection (c) of this Section 1.3; or
(b) individuals who, as of the Change of Control Agreement Date,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to the Change of Control
Agreement Date whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall be
considered a member of the Incumbent Board, unless such individual's
initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Incumbent Board;
or
(c) consummation of a reorganization, merger or consolidation, or
sale or other disposition of all or substantially all of the assets of
the Company (a "Business Combination"), in each case, unless,
following such Business Combination,
(i) all or substantially all of the individuals and entities
who were the beneficial owners of the Company's outstanding
common stock and the Company's voting securities entitled to vote
generally in the election of directors immediately prior to such
Business Combination have direct or indirect beneficial
ownership, respectively, of more than 50% of the then outstanding
shares of common stock, and more than 50% of the combined voting
power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation
resulting from such Business Combination (which, for purposes of
this paragraph (i) and paragraphs (ii) and (iii), shall include a
corporation which as a result of such transaction controls the
Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries), and
(ii) except to the extent that such ownership existed prior
to the Business Combination, no person (excluding any corporation
resulting from such Business Combination or any employee benefit
plan or related trust of the Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of the then outstanding
shares of common stock of the corporation resulting from such
Business Combination or 20% or more of the combined voting power
of the then outstanding voting securities of such corporation,
and
(iii) at least a majority of the members of the board of
directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of
the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
1.4 AFFILIATE. "Affiliate" or "affiliated companies" shall mean any
company controlled by, controlling, or under common control with, the
Company.
1.5 CAUSE. "Cause" shall mean:
(a) the willful and continued failure of the Employee to
perform substantially the Employee's duties with the Company or
its affiliates (other than any such failure resulting from
incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to the Employee
by the Board of the Company which specifically identifies the
manner in which the Board believes that the Employee has not
substantially performed the Employee's duties, or
(b) the willful engaging by the Employee in illegal conduct
or gross misconduct which is materially and demonstrably
injurious to the Company or its affiliates.
For purposes of this provision, no act or failure to act, on the part of
the Employee, shall be considered "willful" unless it is done, or omitted
to be done, by the Employee in bad faith or without reasonable belief that
the Employee's action or omission was in the best interests of the Company
or its affiliates. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the instructions
of a senior officer of the Company or based upon the advice of counsel for
the Company or its affiliates shall be conclusively presumed to be done, or
omitted to be done, by the Employee in good faith and in the best interests
of the Company or its affiliates. The cessation of employment of the
Employee shall not be deemed to be for Cause unless and until there shall
have been delivered to the Employee a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters of the entire
membership of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Employee and the
Employee is given an opportunity, together with counsel, to be heard before
the Board), finding that, in the good faith opinion of the Board, the
Employee is guilty of the conduct described in subparagraph (a) or (b)
above, and specifying the particulars thereof in detail.
1.6 GOOD REASON. "Good Reason" shall mean:
(a) Any failure of the Company or its affiliates to provide the
Employee with the position, authority, duties and responsibilities at
least commensurate in all material respects with the most significant
of those held, exercised and assigned at any time during the 120-day
period immediately proceeding the Change of Control. Employee's
position, authority, duties and responsibilities after a Change of
Control shall not be considered commensurate in all material respects
with Employee's position, authority, duties and responsibilities prior
to a Change of Control unless after the Change of Control Employee
holds (i) an equivalent position in the Company or, (ii) if the
Company is controlled or will after the transaction be controlled by
another company (directly or indirectly), an equivalent position in
the ultimate parent company.
(b) The assignment to the Employee of any duties inconsistent in
any material respect with Employee's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 2.1(b) of this Agreement,
or any other action that results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith
that is remedied within 10 days after receipt of written notice
thereof from the Employee to the Company;
(c) Any failure by the Company or its affiliates to comply with
any of the provisions of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith that
is remedied within 10 days after receipt of written notice thereof
from the Employee to the Company;
(d) The Company or its affiliates requiring the Employee to be
based at any office or location other than as provided in Section
2.1(b)(ii) hereof or requiring the Employee to travel on business to a
substantially greater extent that required immediately prior to the
Change of Control;
(e) Any purported termination of the Employee's employment
otherwise than as expressly permitted by this Agreement; or
(f) Any failure by the Company to comply with and satisfy
Sections 3.1(c) and (d) of this Agreement.
For purposes of this Section 1.6, any good faith determination of "Good
Reason" made by the Employee shall be conclusive. Anything in this
Agreement to the contrary notwithstanding, a termination by the Employee
for any reason during the 30-day period immediately following the first
anniversary of the Change of Control shall be deemed to be a termination
for Good Reason.
ARTICLE II
CHANGE OF CONTROL BENEFIT
2.1 EMPLOYMENT TERM AND CAPACITY AFTER CHANGE OF CONTROL. (a) If a
Change of Control occurs on or before October 31, 2000, then the Employee's
employment term (the "Employment Term") shall continue through the later of
(a) the second anniversary of the Change of Control or (b) October 31,
2000, subject to any earlier termination of Employee's status as an
employee pursuant to this Agreement.
(b) After a Change of Control and during the Employment Term, (i) the
Employee's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those
held, exercised and assigned at any time during the 120-day period
immediately preceding the Change of Control and (ii) the Employee's service
shall be performed at the location where the Employee was employed
immediately preceding the Change of Control or any office or location less
than 35 miles from such location. Employee's position, authority, duties
and responsibilities after a Change of Control shall not be considered
commensurate in all material respects with Employee's position, authority,
duties and responsibilities prior to a Change of Control unless after the
Change of Control Employee holds (x) an equivalent position in the Company
or, (y) if the Company is controlled or will after the transaction be
controlled by another company (directly or indirectly), an equivalent
position in the ultimate parent company. Employee shall devote himself to
his employment responsibilities with the Company (or, if applicable, the
ultimate parent entity) as provided in Article I Section 3 of the
Employment Agreement.
2.2 COMPENSATION AND BENEFITS. During the Employment Term, Employee
shall be entitled to the following compensation and benefits:
(a) SALARY. A salary ("Base Salary") at the rate of $200,000 per
year, payable to the Employee at such intervals no less frequent than
the most request intervals in effect at any time during the 120-day
period immediately preceding the Change of Control or, if more
favorable to the Employee, the intervals in effect at any time after
the Change of Control for other peer employees of the Company and its
affiliated companies.
(b) BONUS. For the period beginning November 1, 1997, the
Employee shall be eligible to receive a bonus (the "Bonus") of up to
$125,000 for each 12-month period thereafter. Such Bonus shall be
comprised of two elements, the quantitative element and the
qualitative element:
(i) The quantitative element shall be equal to 75% of the
maximum Bonus of $125,000 and shall be based on the attainment of
certain goals to be established by the Company's Chief Operating
Officer.
(ii) The qualitative element shall be 25% of the maximum
Bonus of $125,000 and shall be awarded at the discretion of the
Company's Chief Operating Officer. The Company's Chief Operating
Officer and Employee shall establish incentive goals and other
criteria for the award of the qualitative element.
The foregoing notwithstanding, the Company shall pay to the Employee
not less than $100,000 of the Bonus for the period November 1, 1997 to
October 31, 1998 and not less than $100,000 of the Bonus for the period
November 1, 1998 to October 31, 1999, each payable on a ratable basis each
fiscal quarter (i.e. January 31, April 30, July 31, and October 31).
The Bonus shall be paid in cash no later than 30 days following the
date on which the information needed to calculate the Bonus becomes
available.
(c) FRINGE BENEFITS. The Employee shall be entitled to fringe
benefits (including, but not limited to, automobile allowance and
reimbursement for membership dues) in accordance with the most
favorable agreements, plans, practices, programs and policies of the
Company and its affiliated companies in effect for the Employee at any
time during the 120-day period immediately preceding the Change of
Control or, if more favorable to the Employee, as in effect generally
at any time thereafter with respect to other peer employees of the
Company and its affiliated companies.
(d) EXPENSES. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in
accordance with the most favorable agreements, policies, practices and
procedures of the Company and its affiliated companies in effect for
the Employee at any time during the 120-day period immediately
preceding the Change of Control or, if more favorable to the Employee,
as in effect generally at any time thereafter with respect to other
peer employees of the Company and its affiliated companies.
(e) INCENTIVE, SAVINGS AND RETIREMENT PLANS. The Employee shall
be entitled to participate in all incentive, savings and retirement
plans, practices, policies and programs applicable generally to other
peer employees of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the
Employee with incentive opportunities (measured with respect to both
regular and special incentive opportunities, to the extent, if any,
that such distinction is applicable), savings opportunities and
retirement benefit opportunities, in each case, less favorable than
the most favorable of those provided by the Company and its affiliated
companies for the Employee under any agreements, plans, practices,
policies and programs as in effect at any time during the 120-day
period immediately preceding the Change of Control or, if more
favorable to the Employee, those provided generally at any time after
the Change of Control to other peer employees of the Company and its
affiliated companies.
(f) WELFARE BENEFIT PLANS. The Employee and/or the Employee's
family, as the case may be, shall be eligible for participate in and
shall receive all benefits under welfare benefit plans, practices,
policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and
travel accident insurance plans and programs) to the extent applicable
generally to other peer employees of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and
programs provide the Employee with benefits, in each case, less
favorable than the most favorable of any agreements, plans, practices,
policies and programs in effect for the Employee at any time during
the 120-day period preceding the Change of Control or, if more
favorable to the Employee, those provided generally at any time after
the Change of Control to other peer employees of the Company and its
affiliated companies.
(g) OFFICE AND SUPPORT STAFF. The Employee shall be entitled to
an office or offices of a size and furnishings and other appointments,
and to exclusive personal secretarial and other assistance, at least
equal to the most favorable of the foregoing provided to the Employee
by the Company and its affiliated companies at any time during the
120-day period immediately preceding the Change of Control or, if more
favorable to the Employee, as provided generally at any time
thereafter with respect to other peer employees of the Company and its
affiliated companies.
(h) VACATION. The Employee shall be entitled to paid vacation in
accordance with the most favorable agreements, plans, policies,
programs and practices of the Company and its affiliated companies as
in effect for the Employee at any time during the 120-day period
immediately preceding the Change of Control or, if more favorable to
the Employee, as in effect generally at any time thereafter with
respect to other peer employees of the Company and its affiliated
companies.
2.3 TERMINATION OF EMPLOYMENT AFTER A CHANGE OF CONTROL. After a
Change of Control and during the Employment Term, the Employee's status as
an employee shall terminate or may be terminated by the Employee, the
Company (or, if applicable, the ultimate parent company), as provided in
Article III of the Employment Agreement (provided, however, that the
definitions of "Cause" and "Good Reason" in this Agreement shall supersede
those definitions in the Employment Agreement).
2.4 OBLIGATIONS UPON TERMINATION AFTER A CHANGE OF CONTROL.
(a) TERMINATION BY COMPANY FOR REASONS OTHER THAN DEATH,
DISABILITY OR CAUSE; BY EMPLOYEE FOR GOOD REASON. If, after a Change
of Control and during the Employment Term, the Company (or, if
applicable the ultimate parent company), terminates the Employee's
employment other than for Cause, Death or Disability, or the Employee
terminates employment for Good Reason, the Company shall pay to the
Employee in a lump sum in cash within 30 days of the Date of
Termination an amount equal to three times the sum of (i) the amount
of Base Salary in effect at the Date of Termination, plus (ii) the
maximum Bonus for which the Employee is eligible for the 12-month
period in which the Date of Termination occurs.
(b) DEATH. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by
reason of the Employee's death, this Agreement shall terminate without
further obligation to the Employee's legal representatives other than
those already accrued to the Employee), other than the obligation to
make any payments due pursuant to employee benefit plans maintained by
the Company or its affiliated companies.
(c) DISABILITY. If, after a Change of Control and during the
Employment Term, Employee's status as an employee is terminated by
reason of the Employee's Disability (as defined in the Employment
Agreement), this Agreement shall terminate without further obligation
to the Employee (other than those already accrued to the Employee),
other than the obligation to make any payments due pursuant to
employee benefit plans maintained by the Company or its affiliated
companies.
(d) CAUSE. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by
the Company (or, if applicable the ultimate parent entity) for Cause,
this Agreement shall terminate without further obligation to the
Employee other than for obligations imposed by law and obligations
imposed pursuant to any employee benefit plan maintained by the
Company as its affiliated companies.
(e) TERMINATION BY EMPLOYEE FOR REASONS OTHER THAN GOOD REASON.
If, after a Change of Control and during the Employment Term, the
Employee's status as an employee is terminated by the Employee for
reasons other than Good Reasons, then the Company shall pay to the
Employee an amount equal to a single year's Base Salary in effect at
the Date of Termination, payable in equal installments over a two-year
period at such intervals as other salaried employees of the Company
are paid.
(f) NONDISCLOSURE, NONCOMPETITION AND PROPRIETARY RIGHTS. The
rights and obligations of the Company and Employee contained in
Article V ("Nondisclosure, Noncompetition and Proprietary Rights") of
the Employment Agreement shall continue to apply after a Change of
Control, except as provided in Section 2.10 of this Agreement.
2.5 ACCRUED OBLIGATIONS AND OTHER BENEFITS. It is the intent of the
Employment Agreement and this Agreement that upon termination of employment
for any reason the Employee be entitled to receive promptly, and in
addition to any other benefits specifically provided, (a) the Employee's
Base Salary through the Date of Termination to the extent not theretofore
paid, (b) any accrued vacation pay, to the extent not theretofore paid, and
(c) any other amounts or benefits required to be paid or provided or which
the Employee is entitled to receive under any plan, program, policy
practice or agreement of the Company.
2.6 STOCK OPTIONS. The foregoing benefits are intended to be in
addition to the value of any options to acquire Common Stock of the Company
the exercisability of which is accelerated pursuant to the terms of any
stock option, incentive or other similar plan heretofore or hereafter
adopted by the Company.
2.7 PROTECTION OF BENEFITS. To the extent permitted by applicable
law, the Company shall take all reasonable steps to ensure that the
Employee is not, by reason of a Change of Control, deprived of the economic
value (including any value attributable to the Change of Control
transaction) of (a) any options to acquire Common Stock of the Company or
(b) any Common Stock of the Company beneficially owned by the Employee.
2.8 CERTAIN ADDITIONAL PAYMENTS. If after a Change of Control
Employee is subjected to an excise tax as a result of the "excess parachute
payment" provisions of section 4999 of the Internal Revenue Code of 1986,
as amended, whether by virtue of the benefits of this Agreement or by
virtue of any other benefits provided to Employee in connection with a
Change of Control pursuant to Company plans, policies or agreements
(including the value of any options to acquire Common Stock of the Company
the exercisability of which is accelerated pursuant to the terms of any
stock option, incentive or similar plan heretofore or hereafter adopted by
the Company), the Company shall pay to Employee (whether or not his
employment has terminated) such amounts as are necessary to place Employee
in the same position after payment of federal income and excise taxes as he
would have been if such provisions had not been applicable to him.
2.9 LEGAL FEES. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which the Employee may
reasonably incur as a result of any contest (regardless of the outcome
thereof) by the Company, the Employee or others of the validity or
enforceability of, or liability under, any provision of this Agreement
(including as a result of any contest by the Employee about the amount or
timing of any payment pursuant to this Agreement.)
2.10 SET-OFF; MITIGATION. After a Change of Control, the Company's
and its affiliates' obligations to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company or its affiliates may have against the
Employee or others. After a Change of Control, an asserted violation of
the provisions of Article V ("Nondisclosure, Noncompetition and Proprietary
Rights") of the Employment Agreement shall not constitute a basis for
deferring or withholding any amounts otherwise payable to the Employee;
specifically, the third through sixth sentences of Article V Section 4
shall not apply after a Change of Control. It is the intent of the
Employment Agreement and this Agreement that in no event shall the Employee
be obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Employee under any of the
provisions of this Agreement or the Employment Agreement.
ARTICLE III
MISCELLANEOUS
3.1 BINDING EFFECT; SUCCESSORS.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and any of its successors or assigns.
(b) This Agreement is personal to the Employee and shall not be
assignable by the Employee without the consent of the Company (there being
no obligation to give such consent) other than such rights or benefits as
are transferred by will or the laws of descent and distribution.
(c) The Company shall require any successor to or assignee of
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) all or substantially all of the assets or businesses of the
Company (i) to assume unconditionally and expressly this Agreement and (ii)
to agree to perform or to cause to be performed all of the obligations
under this Agreement in the same manner and to the same extent as would
have been required of the Company had no assignment or succession occurred,
such assumption to be set forth in a writing reasonably satisfactory to the
Employee.
(d) The Company shall also require all entities that control or
that after the transaction will control (directly or indirectly) the
Company or any such successor or assignee to agree to cause to be performed
all of the obligations under this Agreement, such agreement to be set forth
in a writing reasonably satisfactory to the Employee.
3.2 NOTICES. All notices hereunder must be in writing and shall be
deemed to have given upon receipt of delivery by: (a) hand (against a
receipt therefor), (b) certified or registered mail, postage prepaid,
return receipt requested, (c) a nationally recognized overnight courier
service (against a receipt therefor) or (d) telecopy transmission with
confirmation of receipt. All such notices must be addressed as follows:
If to the Company, to:
Stewart Enterprises, Inc.
110 Veterans Memorial Boulevard
Metairie, Louisiana 70005
Attn: Joseph P. Henican, III
If to the Employee, to:
Charles L. Tilis
5108 Oak Tree Circle
Dallas, Texas 75287
or such other address as to which any party hereto may have notified the
other in writing.
3.3 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Louisiana
without regard to principles of conflict of laws, except as expressly
provided in Article V Section 6 of the Employment Agreement with respect to
the resolution of disputes arising under, or the Company's enforcement of,
such Article V.
3.4 WITHHOLDING. The Employee agrees that the Company has the right
to withhold, from the amounts payable pursuant to this Agreement, all
amounts required to be withheld under applicable income and/or employment
tax laws, or as otherwise stated in documents granting rights that are
affected by this Agreement.
3.5 AMENDMENT, WAIVER. No provision of this Agreement may be
modified, amended or waived except by an instrument in writing signed by
both parties.
3.6 SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall at any time or to
any extent be invalid, illegal or unenforceable in any respect as written,
Employee and the Company intend for any court construing this Agreement to
modify or limit such provision so as to render it valid and enforceable to
the fullest extent allowed by law. Any such provision that is not
susceptible of such reformation shall be ignored so as to not affect any
other term or provision hereof, and the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other
than those as to which it is held invalid, illegal or unenforceable, shall
not be affected thereby and each term and provision of this Agreement shall
be valid and enforced to the fullest extent permitted by law.
3.7 WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach thereof.
3.8 REMEDIES NOT EXCLUSIVE. No remedy specified herein shall be
deemed to be such party's exclusive remedy, and accordingly, in addition to
all of the rights and remedies provided for in this Agreement, the parties
shall have all other rights and remedies provided to them by applicable
law, rule or regulation.
3.9 COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and
understands that the Employee serves at the pleasure of the Board and that
the Company has the right at any time to terminate Employee's status as an
employee of the Company, or to change or diminish his status during the
Employment Term, subject to the rights of the Employee to claim the
benefits conferred by this Agreement.
3.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have caused this
Agreement to be executed as of the Change of Control Agreement Date.
STEWART ENTERPRISES, INC.
BY: /s/ WILLIAM E. ROWE
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William E. Rowe
EMPLOYEE:
/s/ CHARLES L. TILIS
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Charles L. Tilis