EXHIBIT 10.13
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement ("Agreement") between Stewart
Enterprises, Inc., a Louisiana corporation (the "Company"), and Thomas M.
Kitchen (the "Employee") is effective as of December 2, 2004 (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 effective as of December 2,
2004 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, the definitions in
this Agreement supersede definitions in the Employment Agreement, but
capitalized terms used herein that are 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 any 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 of 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 50% or more of the then outstanding shares of
common stock, and 50% or more 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 50% 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.
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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 preceding 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,
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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 than 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, 2007,
then the Employee's employment term (the "Employment Term") shall continue
through the later of (i) the second anniversary of the Change of Control
or (ii) October 31, 2007, 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
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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 highest rate provided
for under the Employment Agreement at any time during the 120-day period
immediately preceding the Change of Control, payable to the Employee at
such intervals no less frequent than the most frequent 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. An annual incentive bonus (the "Bonus") equal to the
maximum annual amount that the Employee was eligible to receive at any
time during the 120-day period immediately preceding the Change of
Control. The Bonus shall be paid in cash (1) no later than thirty (30)
days following the close of the fiscal year in which it is earned, or (2)
if the Employee so elects, between January 1 and January 15 of the
succeeding calendar year.
(c) Fringe Benefits. The Employee shall be entitled to fringe
benefits (including, but not limited to, automobile allowance,
reimbursement for membership dues, and air travel) 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
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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 participation 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 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.
(g) Office and Support Staff. The Employee shall be entitled to an
office or offices of a size and with 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).
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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 after the Date of Termination (or, if required by the Jobs
Act (as defined in Section 3.12 hereof) to be deferred, 10 days following
the first business day that is more than six months after 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 average
annual bonus (including in the calculation of such average any Bonus
referred to in Section 2.2(b) hereof, if applicable) earned by the
Employee during the three most recently completed fiscal years prior to
the Date of Termination or, if the Employee has been employed by the
Company for less than three years, the number of years during such period
that the Employee was employed by the Company and eligible to receive a
bonus.
(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 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 or 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 Reason, 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
beginning 30 days after the Date of Termination (or, if required by the
Jobs Act (as defined in Section 3.12 hereof) to be deferred, on the first
regular payroll date that is at
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least six months after the Date of Termination) and thereafter 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.)
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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:
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If to the Company, to:
Stewart Enterprises, Inc.
1333 South Clearview Parkway
Jefferson, LA 70121
Attn: Chief Executive Officer
If to the Employee, to:
Thomas M. Kitchen
6627 Canal Boulevard
New Orleans, Louisiana 70124
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
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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 PRIOR CHANGE OF CONTROL AGREEMENT. Effective as of the Change of
Control Agreement Date, this Agreement supersedes any prior change of control
agreement between the Employee and the Company.
3.11 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.
3.12 AMERICAN JOBS CREATION ACT OF 2004. In the event that any of the
compensation or benefits payable to the Employee hereunder are considered to be
non-qualified deferred compensation subject to the American Jobs Creation Act of
2004 (the "Jobs Act") and any regulations issued or to be issued by the
Department of the Treasury thereunder, the Company and the Employee shall
negotiate in good faith and agree to such amendments to this Agreement as they
and their respective tax counsel deem necessary to avoid the imposition of
additional taxes and penalties under the Jobs Act or such regulations, while
preserving the economic benefits intended to be conferred on the Employee by
this Agreement.
IN WITNESS WHEREOF, the Company and the Employee have caused this
Agreement to be executed on the dates set forth below and effective as of the
Change of Control Agreement Date.
STEWART ENTERPRISES, INC.
Dated: January 7, 2005 By: /s/JAMES W. MCFARLAND
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James W. McFarland
Compensation Committee Chairman
EMPLOYEE:
Dated: ___________, 200__
____________________________________________
Thomas M. Kitchen
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