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EXHIBIT 10.10
INDEPENDENT CONTRACTOR/CONSULTATIVE AGREEMENT
THIS AGREEMENT is made and entered into as of the 18th day of November,
1999 by and between SCI Management Corporation, a Delaware corporation
(hereinafter called the "Company"), and George R. Champagne (hereinafter called
"Consultant"):
In consideration of the performance and discharge of the respective
agreements herein contained, Company and Consultant agree as follows:
Section 1. Term of Agreement. Subject to the provisions for termination
hereinafter set forth and subject to all of the provisions of this Agreement,
the term of this Agreement ("Term") shall be for a period commencing on January
1, 2000 and terminating December 31, 2001.
Section 2. Consultant Services. By the use of Consultant's knowledge,
skills, expertise and goodwill, and acting at all times as an independent
contractor, independent of any supervision, reporting of hours, or control in
the performance of consulting duties by the Company, Consultant agrees to
provide consultative services for the Company upon the request of any member of
the Board of Directors of Service Corporation International ("SCI") or any
executive officer of SCI, and to perform such consultative services as follows:
A. During the Term hereof, Consultant shall furnish to the Company
his best advice, information, judgment, and knowledge with respect
to the affairs, business, business methods and practices, history,
patrons, customers, employees and suppliers of the Company, and
generally seek to preserve and increase the business and goodwill
of the Company.
B. Consultant shall not be required to maintain specific working
hours, but shall be available at all times during the Term hereof,
upon reasonable notice, when the Company requests such
consultative services.
C. During the time consultative services are to be provided
hereunder, same shall be discharged and performed under the
direction and subject to the control of the Board of Directors and
senior officers of the Company.
D. Consultant shall not be required to consult more then an average
of 20 hours per week during the first year of the Term and 10
hours per week during the second year.
Section 3. Consideration. As compensation for the consultative services
to be performed and rendered by Consultant hereunder, Company agrees to pay
Consultant, so long as this Agreement shall be in full force and effect, at the
rate of (i) Two Hundred Forty Thousand Dollars ($240,000.00) per year for the
first twelve months of the Term, payable $20,000 per month, and (ii) One Hundred
Twenty Thousand Dollars ($120,000.00) per year for the second twelve months of
the Term, payable $10,000 per month. Such payment shall not be subject to
withholding for income taxes or FICA; provided, however, that such monthly
consultative payments shall terminate on the date of the death of Consultant
or in the event this Agreement should be otherwise terminated as provided
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herein. In the event of the death of Consultant or in the event this Agreement
should be terminated as provided herein, the Company shall have no further
obligation to Consultant or his estate under this Agreement except to pay all
compensation earned prior to his date of death or termination. The first
installment will be due and payable on January 1, 2000 and subsequent payments
shall be made on the same day of each succeeding month during the Term hereof.
Section 4. Inability to Perform. If for any reason during the Term of
this Agreement Consultant should be prevented from performing his duties, by
reason of illness or incapacity or for any other cause, for an aggregate of
thirty (30) days in any one calendar year during the period hereof, then the
Company shall have the right to terminate this Agreement by giving at least
fifteen (15) days' prior written notice thereof to Consultant.
Section 5. Reimbursement for Expenses. Consultant is authorized to
incur reasonable expenses for promoting the business of the Company, including
expenses for entertainment and travel. Consultant will be reimbursed by the
Company for all such reasonable business expenses upon presentation by him of an
itemized account of such expenditures and such receipts or other documents as
may be required by the Company.
Section 6. Miscellaneous Covenants. Consultant agrees that at all times
during the Term of this Agreement:
A. Consultant will not knowingly or intentionally do or say
any act or thing which will or may impair, damage, or
destroy the goodwill and esteem for the Company with its
suppliers, employees, patrons, customers, and others who
may at any time have or have had business relations with
the Company;
B. Consultant will not reveal to any third person any
differences of opinion, if there be such at any time,
between him and the management of the Company as to the
Company's personnel, policies or practices; and,
C. Consultant will not knowingly or intentionally do any act
or thing detrimental to the Company or its business.
Section 7. Confidentiality. Consultant understands that in the course
of discharging and performance of the consultative duties as herein provided,
Consultant will receive certain trade secrets, lists of customers, and other
confidential information concerning the business of the Company and its
affiliates which the Company desires to protect. Consultant understands that,
among other things, the management methods, operating techniques, procedures and
methods, customer lists, prospective acquisitions, employee lists, training
manuals and procedures, personnel evaluation procedures, collection
procedures, and financial reports of the Company and/or its affiliates are
confidential and are not at any time during or after the Term of this Agreement
to be revealed to anyone outside the Company without specific written
authorization by an officer of the Company. Consultant further agrees that he
will not divulge to anyone outside the Company any such confidential information
or trade secrets.
Section 8. Noncompetition. Consultant agrees that during the Term of
this Agreement he will not, directly or indirectly, be engaged in, interested in
or concerned with any business which conducts operations directly or indirectly
in competition with the business of the Company or any affiliate of the Company.
Section 9. Enforceability. The foregoing agreements not to use trade
secrets or confidential information or to compete or to do any other acts
prohibited by Sections 7 and 8 of this Agreement shall not be held invalid or
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unenforceable because of the scope of the territory or actions subject thereto
or restricted thereby, or the period of time within which such agreements
respectively are operative, but the maximum territory and action subject to such
agreements respectively, and the period of time in which such agreements
respectively are enforceable, are subject to determination by a final judgment
of any court which has jurisdiction over the parties and subject matter.
Section 10. Termination. In the event that Consultant fails to observe
and comply fully with all of the terms and provisions of this Agreement, or if
he fails to perform fully all of his duties, obligations, and agreements herein
contained or as imposed by law, including his fiduciary duties, to the
satisfaction of the Board of Directors of the Company, the Company shall have
the right, to terminate this Agreement by giving Consultant not less than thirty
(30) days' prior written notice of such termination, and this Agreement (with
the exception of Sections 7 and 8 hereof) shall thereupon terminate and be of no
further force and effect.
Section 11. Merger, Etc. Consultant recognizes and acknowledges that at
a future date the Company may be merged with another corporation or the location
of its present business moved to another location, but it is expressly agreed
that any such change will not render the covenants and agreements herein
contained (or in any other instrument entered into by and between the parties
hereto) any less binding or unenforceable in any manner whatsoever.
Section 12. Severability. In case any term, phrase, clause, paragraph,
restriction, covenant, or agreement herein contained shall be held to be invalid
or unenforceable, same shall be deemed, and it is hereby agreed that same are
meant to be, severable, and same shall not defeat or impair the remaining
provisions hereof.
Section 13. Waiver. A waiver by the Company of any breach by Consultant
of this Agreement or of any duties imposed upon Consultant by law, or of any
other cause for discharge of Consultant, shall not be construed as a waiver by
the Company of its right to terminate this Agreement for any subsequent or
continuing breach of this Agreement by Consultant.
Section 14. Binding Effect. This Agreement shall bind and inure to the
benefit of the Company, its successors and assigns, and Consultant, his heirs
and personal representatives.
Section 15. Notices. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and sent registered mail with
return receipt requested, or hand delivered to the respective addresses as set
forth below, or to such address as may from time to time be designated by notice
in accordance herewith.
Section 16. Governing Law. It is agreed that this Agreement will be
interpreted and construed in accordance with the laws of the State of Texas.
Section 17. Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 18. Counterparts. This Agreement may be executed in two 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.
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Section 19. Modification. This Agreement may be modified only by a
written instrument signed by each of the parties hereto.
Section 20. Entire Agreement. This agreement contains the entire
understanding of the parties relating to the subject matter hereof and
supersedes all previous written and verbal agreements between the parties hereto
relating to such subject matter. There are no agreements, representations or
warranties not set forth herein.
Section 21. Dispute Resolution. Except for the matters specifically
excluded below, any and all disputes between the parties to this Agreement
arising out of or in connection with the negotiation, execution, interpretation,
performance or non-performance of this Agreement and the covenants and
obligations contemplated herein, including but not limited to any claims against
the Company, its affiliates or their respective officers, directors, employees
or agents, shall be solely and finally settled by arbitration conducted pursuant
to the Rules of the American Arbitration Association, as now in effect or
hereafter amended. Judgment on the award of the arbitrator may be entered in
any court having jurisdiction over the party against whom enforcement of the
award is being sought, and the parties hereby irrevocably consent to the
jurisdiction of any such court for the purpose of enforcing any such award. The
parties agree and acknowledge that any arbitration proceedings between them, and
the outcome of such proceedings, shall be kept strictly confidential. It is
expressly agreed and understood that this paragraph shall not govern claims for
workers' compensation or unemployment benefits or claims for injunctive relief
relating to alleged violations of Section 7 or 8 hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Address for Notices: CONSULTANT:
George R. Champagne ----------------------------------
#10 Twin Greens Court George R. Champagne
Kingswood,TX 77339
COMPANY:
SCI Management Corporation
Attn:
President
P.O. Box 130548 By:
Houston, Texas 77219 ----------------------------------
Curtis G. Briggs
Vice President
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