0000950129-01-503677.txt : 20011030
0000950129-01-503677.hdr.sgml : 20011030
ACCESSION NUMBER: 0000950129-01-503677
CONFORMED SUBMISSION TYPE: S-3
PUBLIC DOCUMENT COUNT: 11
FILED AS OF DATE: 20011026
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SERVICE CORPORATION INTERNATIONAL
CENTRAL INDEX KEY: 0000089089
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PERSONAL SERVICES [7200]
IRS NUMBER: 741488375
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-3
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-72326
FILM NUMBER: 1768098
BUSINESS ADDRESS:
STREET 1: 1929 ALLEN PKWY
STREET 2: P O BOX 130548
CITY: HOUSTON
STATE: TX
ZIP: 77019
BUSINESS PHONE: 7135225141
MAIL ADDRESS:
STREET 1: P O BOX 130548
CITY: HOUSTON
STATE: TX
ZIP: 77219-0548
S-3
1
h91504s-3.txt
SERVICE CORPORATION INTERNATIONAL
As filed with the Securities and Exchange Commission on October 26, 2001.
Registration No. 333________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
---------------------
SERVICE CORPORATION INTERNATIONAL
(Exact name of registrant as specified in its charter)
TEXAS 74-1488375
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1929 ALLEN PARKWAY
HOUSTON, TEXAS 77019
(713) 522-5141
(Name, address, including zip code, and telephone
number, including area code, of each
registrant's principal executive offices)
JAMES M. SHELGER, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
SERVICE CORPORATION INTERNATIONAL
1929 ALLEN PARKWAY
HOUSTON, TEXAS 77019
(713) 522-5141
(Name, address, including zip code, and telephone number,
including area code, of agent for service for each registrant)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
PROPOSED
MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (1)(2) REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------------
Common Stock(3) )
Junior Participating Preferred Stock Purchase) 6,000,000 $6.00 $36,000,000.00 $9,000.00
Rights (traded with Common Stock) )
=====================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) Such amount represents the amount computed pursuant to 457(c) for any
Common Stock.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
reinvestment plans, please check the following box. [X]
If this Form is filed to registered additional securities for an offering
pursuant to Rule 426(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 426(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE
Subject to Completion Service Corporation International
Prospectus 1929 Allen Parkway
Dated: October 26, 2001 Houston, Texas 77019
713-522-5141
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Up to 6,000,000 Shares of Common Stock
SERVICE CORPORATION INTERNATIONAL
---------------
Trading Symbol:
New York Stock Exchange -- SRV
The shares of common stock offered hereby will be issued and distributed by
us to employees and former employees who elect to receive shares of common stock
in a lump-sum distribution of all or part of the discounted present value of
their retirement benefits pursuant to our
o supplemental executive retirement plan for senior officers, or Senior
SERP; and
o supplemental executive retirement plan, or SERP.
The number of shares of our common stock to be issued and distributed to
each participant under the Senior SERP and the SERP will be calculated by
dividing each participant's discounted present value retirement benefit amount
by the average closing price per share on The New York Stock Exchange of our
common stock for the five trading days immediately after our deadline for
receipt of the participant's election to receive shares of common stock. In this
prospectus, we call that price the Distribution Price. The shares of common
stock received by the participants may be sold subsequently from time to time,
including for a limited period to J.P. Morgan Securities Inc., and J.P. Morgan
Securities Inc. may resell them pursuant to this prospectus.
If the participants sell any or all of the shares of common stock received
in connection with the Senior SERP and the SERP to J.P. Morgan Securities Inc.
pursuant to the arrangement described in the preceding paragraph we will pay
any commission in connection therewith and they will receive the Distribution
Price per share. We have agreed with J.P. Morgan Securities Inc. that it will
receive no more and no less than the Distribution Price when reselling such
shares into the market. This arrangement will require us to pay out cash to J.P.
Morgan Securities Inc. if the price at which the common stock is resold to the
market is less than the Distribution Price. To the extent the resale of shares
of common stock by J.P. Morgan Securities Inc. exceeds the Distribution Price,
the excess proceeds will be paid to us. In addition, under certain circumstances
J.P. Morgan Securities Inc. is entitled to require us to purchase, at the
Distribution Price, up to $5,000,000 of the shares of our common stock that
J.P. Morgan Securities Inc. purchased from the participants in connection with
the transactions described herein.
Our common stock is listed on the New York Stock Exchange. On October 23,
2001 the last reported sale price of the common stock on the New York Stock
Exchange was $6.00 per share.
---------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
---------------
__________________, 2001
1
TABLE OF CONTENTS
PAGE
Where You Can Find More Information..............................................3
The Company......................................................................4
The Offering.....................................................................4
Use of Proceeds..................................................................4
Description of Capital Stock.....................................................5
Description of Supplemental Executive Retirement Plan for Senior Officers........6
Description of Supplemental Executive Retirement Plan............................6
Material Federal Income Tax Considerations.......................................7
Plan of Distribution.............................................................7
Legal Matters....................................................................8
Experts ........................................................................8
Information not Required in Prospectus...........................................9
2
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the Securities and Exchange
Commission, or SEC, under the Securities Act of 1933 that registers the
securities offered by this prospectus. The registration statement, including the
attached exhibits, contains additional relevant information about us. The rules
and regulations of the SEC allow us to omit some information included in the
registration statement from this prospectus.
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any reports, statements or
other information filed by us at the SEC's public reference room at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference room. Our
filings with the SEC are also available to the public from commercial document
retrieval services and at the SEC's web site at "http://www.sec.gov."
The SEC allows us to "incorporate by reference" into this document the
information we file with it, which means that we can disclose important
information to you by referring you to another document we filed with the SEC.
The information incorporated by reference is an important part of this
prospectus, and information that we file later with the SEC will automatically
update and supersede this information. We incorporate by reference the documents
listed below and any future filings made with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934.
o Annual Report on Form 10-K for the fiscal year ended December 31,
2000;
o Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2001 and June 30, 2001;
o Current Reports on Form 8-K dated March 12, 2001 and June 27,
2001;
o Description of Series D Junior Participating Preferred Stock
Purchase Rights contained in Registration Statement on Form 8-A
dated May 15, 1998; and
o Description of capital stock set forth under the caption "Item 1.
Description of Securities to be Registered -- Capital Stock" in
the Form 8, Amendment No. 3, dated September 15, 1982, to
Registration Statement on Form 8-A.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Service Corporation International
1929 Allen Parkway
Houston, Texas 77019
(713) 522-5141
Attention: James M. Shelger
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone else to provide you
with different information. We are not making an offer of these securities in
any state where the offer is not permitted. You should not assume that the
information in this prospectus or any supplement is accurate as of any date
other than the date on the front of this prospectus.
3
THE COMPANY
Service Corporation International was incorporated in Texas on July 5,
1962 and is the largest provider of death care services and products in the
world. As of June 30, 2001, we operated 3,385 funeral service locations, 506
cemeteries and 185 crematoria located in 17 countries on four continents. "Our
principal executive offices are located at 1929 Allen Parkway, Houston, Texas
77019, telephone number: (713) 522-5141.
THE OFFERING
We maintain the Senior SERP and the SERP to provide retirement benefits
in the form of annual cash payments which are generally paid after retirement.
We are providing a one-time opportunity for each participant vested in the
Senior SERP and the SERP to elect to receive, in full or partial settlement
thereof, a lump-sum distribution of the present value (using a 10% discount
rate) of all or part of his or her retirement benefits in shares of our common
stock. To the extent that a participant elects to receive a percent, but not
all, of his or her vested retirement benefits in shares of common stock, such
participant's remaining annual cash payments under the Senior SERP or the SERP
will be reduced by such percent. To the extent a participant elects to receive
retirement benefits in shares of common stock, our future cash obligations will
be reduced. If all participants in the Senior SERP and the SERP elect to receive
the present value of all of their retirement benefits in shares of common stock,
our future cash obligations to participants currently receiving or entitled to
retirement payments would be reduced by approximately $3 million per year. To
the extent participants do not elect to receive the discounted present value of
their retirement benefits in shares of common stock, shares of common stock will
not be issued under this prospectus.
The number of shares of our common stock to be issued and distributed
to each participant under the Senior SERP and the SERP electing to receive
common stock in lieu of all or part of the annual cash payments to which they
would otherwise be entitled will be calculated by dividing the present value of
the participant's benefit amount which he or she has elected to receive in
common stock by the average closing price per share of our common stock on the
New York Stock Exchange for the five trading days immediately following our
deadline for receipt of the participant's election to receive shares of common
stock. In this prospectus, we call that price the Distribution Price. For
example, if a participant had a present value benefit amount of $600,000 and the
Distribution Price was $6.00 per share, the participant (assuming he or she had
elected to receive all of his or her retirement benefits in shares of common
stock) would receive 100,000 shares of our common stock.
At the time participants elect to receive the shares of common stock to
be distributed, the participants may elect to sell all, some or none of the
shares received. We have arranged for participants who desire to sell all or
some of their shares of common stock to sell shares immediately to J.P. Morgan
Securities Inc. at the Distribution Price. We have agreed with J.P. Morgan
Securities Inc. that it will receive no more and no less than the Distribution
Price when reselling such shares into the market. This arrangement will require
us to pay out cash to J.P. Morgan Securities Inc. if the price at which the
common stock is resold to the market is less than the Distribution Price. If the
price at which the common stock is resold exceeds the Distribution Price, then
the excess proceeds will be paid to us. Depending upon whether we receive or pay
out cash under this arrangement, we will recognize it as either income or
expense. In addition, under certain circumstances J.P. Morgan Securities Inc. is
entitled to require us to purchase, at the Distribution Price, up to $5,000,000
of the shares of our common stock that J.P. Morgan Securities Inc. purchased
from the participants in connection with the transactions described herein.
USE OF PROCEEDS
We will not receive any proceeds from the issuance and distribution to
employees and former employees of our shares of common stock under the Senior
SERP or the SERP. We could receive excess proceeds upon the resale of shares of
common stock by J.P. Morgan Securities Inc. if the price at which the common
stock is resold exceeds the Distribution Price. Any proceeds received by us will
be used for working capital or debt reduction.
4
DESCRIPTION OF CAPITAL STOCK
GENERAL
As of June 30, 2001, we had authorized capital stock consisting of
1,000,000 shares of Preferred Stock, $1.00 par value per share (the "Preferred
Stock"), and 500,000,000 shares of common stock. As of June 30, 2001, we had
outstanding 289,744,856 shares of common stock. No shares of Preferred Stock
were outstanding on such date.
The following description of the common stock does not purport to be
complete and is qualified in its entirety by reference to applicable provisions
of Texas law, our Restated Articles of Incorporation (the "Articles of
Incorporation"), our Bylaws, as amended, (the "Bylaws"), the Rights Agreement
dated as of May 14, 1998 (the "Rights Agreement"), between us and Harris Trust
and Savings Bank, as rights agent, and the Agreement Appointing a Successor
Rights Agent under Rights Agreement dated as of June 1, 1999 among us, Harris
Trust and Savings Bank and The Bank of New York, as successor rights agent.
COMMON STOCK
Subject to the prior rights of holders of shares of Preferred Stock,
the holders of shares of common stock:
o are entitled to such dividends as may be declared by our Board of
Directors out of funds legally available therefor;
o are entitled to one vote per share;
o have no preemptive or conversion rights;
o are not subject to, or entitled to the benefits of, any
redemption or sinking fund provision; and
o are entitled upon liquidation to receive the assets of the
Company remaining after the payment of corporate debts and the
satisfaction of the liquidation preference of Preferred Stock.
Voting is non-cumulative. The outstanding shares of common stock are fully paid
and non-assessable.
Under the terms of the credit agreements with our bank lenders, we are
currently prohibited from paying dividends or repurchasing common stock.
The Transfer Agent and Registrar for the common stock is The Bank of
New York, located in the city of New York.
CERTAIN PROVISIONS AFFECTING CONTROL OF THE COMPANY
Our Articles of Incorporation contain various provisions that may be
deemed to have an anti-takeover effect. These provisions include the following:
o the requirement of a four-fifths vote of outstanding shares of
capital stock:
-- to approve the merger or consolidation of the Company, or
the exchange by us of our securities, with a holder of 10%
or more of the our capital stock;
-- to remove directors with or without cause; and
-- to amend or repeal any of these provisions;
5
o the creation of a classified Board of Directors consisting of
three classes;
o the establishment of a minimum of nine and a maximum of 15
directors;
o the ability of the directors, by four-fifths vote, to remove a
director, subject to approval by a majority vote of the
shareholders; and
o the right of directors to fill vacancies on the board without the
approval of shareholders.
We also maintain a rights plan, pursuant to which one preferred share
purchase right is outstanding for each share of common stock outstanding. These
rights become exercisable in the event of certain attempts to acquire 20% or
more of our common stock and allow rights holders to purchase our securities or
securities of the acquiring entity.
DESCRIPTION OF SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN FOR SENIOR OFFICERS
The Senior SERP is a non-qualified plan which covers officers and
selected key employees. Benefits under the Senior SERP do not consist of
compensation deferred at the election of participants. The amounts of benefits
under the plan were set by the Compensation Committee of our Board of Directors
from time to time. Subject to completing at least five years of vesting service,
the participant became vested at age 60 to the full amount of his benefit; if
his employment terminated earlier than age 60, he became vested to the amount of
his benefit multiplied by a fraction of which the numerator was the
participant's years of service and the denominator was the number of years from
the participant's hire date until he reached age 60.
In 2000, we amended the Senior SERP effective January 1, 2001. Under
the amendment, no additional benefits will accrue and no employees will become
eligible to participate in the plan after December 31, 2000.
Benefit payments under the Senior SERP are made in the form of 180
monthly installments commencing at the later of severance of employment or the
attainment of age 55. Prior to retirement, if a participant dies or in the event
of a change of control of the Company (as defined in the Senior SERP), we will
promptly pay to each beneficiary or participant a lump sum equal to the present
value of the benefit that the participant would have been entitled to receive if
he had continued to accrue benefit service from the date of death to the date of
his 60th birthday or from the date of the change of control to the date of his
65th birthday. Participants may elect to begin receiving monthly benefits at age
55, while still employed, provided the participant gives written notice at least
twelve months prior to the attainment of age 55. Such installments will be
reduced for early commencement to reasonably reflect the time value of money.
DESCRIPTION OF SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
The SERP is a non-qualified plan which covers employees and former
employees. Monthly benefits are computed at 3% of a participant's average
monthly compensation multiplied by his years of service (according to the SCI
Pension Plan) up to a maximum of 20 years. This amount is reduced by amounts
payable under the terms of the SCI Pension Plan, 50% of the Social Security
benefit expected to be payable to the participant at age 65, any amount
previously paid to the participant under the SERP as a result of a change of
control of the Company (as defined in the SCI Pension Plan), and any other
supplemental retirement benefits available to the participant under any other
nonqualified deferred compensation arrangement between us and the participant. A
participant must have a minimum of ten years of service in order to be eligible
to receive his SERP benefits. Benefit payments are made in the form of 180
monthly installments commencing at the later of severance of employment or the
attainment of age 55.
In 2000, we amended the SERP effective January 1, 2001. Under the
amendment, no additional benefits will accrue and no employees will become
eligible to participate in the SERP after December 31, 2000.
6
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
Each participant in the Senior SERP or the SERP will be permitted to
receive an immediate lump-sum payment in exchange for all or part of his rights
under the plans. Although the amount of the lump-sum payment will be calculated
based on the Distribution Price, each participant's tax consequences will be
determined based on his or her decision concerning the sale of such shares to
J.P. Morgan Securities Inc. If the participant elects to sell shares to J.P.
Morgan Securities Inc., the sale will be made at the Distribution Price and his
or her tax consequences with respect to those shares sold to J.P. Morgan
Securities, Inc. as a result of his or her election will be based on the
Distribution Price. On the distribution date, the participant will be treated as
receiving ordinary income equal to the number of shares received and then sold
to J.P. Morgan Securities Inc. as a result of his or her election times the
Distribution Price, and will be subject to all applicable income and payroll tax
withholding on such income. The commissions and expenses we pay on behalf of the
participant also will be treated as taxable income to such participant and will
be subject to all applicable income and payroll tax withholding.
If a participant does not elect to sell shares to J.P. Morgan
Securities Inc., his or her taxes for such shares will be based on the actual
trading price of our common stock on the date such shares of common stock are
distributed to the participant, such "actual trading price" to be equal to the
mean between the highest and lowest quoted selling price on such date. As a
result, although the number of shares to be distributed will be calculated based
on the Distribution Price, the participant's tax consequences with respect to
those shares received but not sold to J.P. Morgan Securities Inc. as a result of
his or her election will be calculated based on the trading price of the shares
of common stock on the distribution date. On that date, the amount received by
each participant will be treated as ordinary income and will be subject to all
applicable income and payroll tax withholding.
PLAN OF DISTRIBUTION
Shares of common stock offered by this prospectus are being distributed
to employees and former employees upon election by the employees and former
employees to receive the present value, discounted at an annual rate of 10%, of
all or part of their retirement benefits pursuant to our Senior SERP and our
SERP in shares of our common stock instead of cash.
It is anticipated that such shares of common stock may be sold
subsequently by the participants from time to time, including for a limited
period to J.P. Morgan Securities Inc. pursuant to an arrangement between J.P.
Morgan Securities Inc. and us. J.P. Morgan Securities Inc. will resell such
shares on the New York Stock Exchange at market prices then prevailing or in one
or more negotiated transactions at prices acceptable to J.P. Morgan Securities
Inc., in its sole discretion.
If a participant elects to sell shares to J.P. Morgan Securities Inc.,
we will pay any commissions on behalf of the participant and the participant
will receive the Distribution Price per share sold. We have agreed with J.P.
Morgan Securities Inc. that it will receive no more and no less than the
Distribution Price when reselling the shares into the market. This arrangement
could require us to pay out cash to J.P. Morgan Securities Inc. if the price at
which the common stock is sold is less than the Distribution Price. If the price
at which the common stock is sold exceeds the Distribution Price, then the
excess proceeds will be paid to us. In addition, under certain circumstances
J.P. Morgan Securities Inc. is entitled to require us to purchase, at the
Distribution Price, up to $5,000,000 of the shares of our common stock that J.P.
Morgan Securities Inc. purchased from the participants in connection with the
transactions described herein.
In connection with the sales described above, J.P. Morgan Securities
Inc. and the participants may be deemed to be "underwriters," as defined in the
Securities Act, in which event all brokerage commissions or discounts and other
compensation received may be deemed underwriting compensation under the
Securities Act.
If a participant elects to sell shares other than to J.P. Morgan
Securities Inc. as discussed above, the participant may sell such shares on the
New York Stock Exchange at market prices then prevailing or in one or more
negotiated transactions. In addition, any participant who is an affiliate of SCI
may be obligated to comply with Rule 144 upon such sale.
In order to comply with certain state securities laws, if applicable,
the common stock will not be sold in a particular state unless such securities
have been registered or qualified for sale in such state or an exemption from
registration or qualification is available and complied with.
7
No person is authorized to give any information or to make any
representation, other than those contained in this prospectus, and any
information or representations not contained in this prospectus must not be
relied upon as having been authorized. This prospectus does not constitute an
offer to sell or solicitation of an offer to buy any securities other than the
registered securities to which it relates. This prospectus does not constitute
an offer to sell or a solicitation of an offer to buy such securities under any
circumstances where such an offer or solicitation is unlawful. Neither the
delivery of this prospectus nor any sales made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
LEGAL MATTERS
The validity of the Common Stock will be passed upon for us by Locke
Liddell & Sapp LLP, Houston, Texas.
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Annual Report on Form 10-K of Service Corporation
International for the year ended December 31, 2000 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate (except for the SEC registration fee) of
the fees and expenses payable by the Company in connection with the distribution
of the Securities:
SEC registration fee ................................... $ 9,000.00
------------
Printing costs ......................................... 5,000.00
Legal fees and expenses ................................ 15,000.00
Accounting fees and expenses ........................... 10,000.00
Miscellaneous .......................................... 5,000.00
------------
Total ................................. $ 44,000.00
============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Texas corporation.
Article 2.02-1 of the Texas Business Corporation Act (the "TBCA")
provides that any director or officer of a Texas corporation may be indemnified
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by him in connection with or in defending any action, suit or
proceeding in which he was, is, or is threatened to be made a named defendant by
reason of his position as director or officer, provided that he conducted
himself in good faith and reasonably believed that, in the case of conduct in
his official capacity as a director or officer of the corporation, such conduct
was in the corporation's best interests; and, in all other cases, that such
conduct was at least not opposed to the corporation's best interests. In the
case of a criminal proceeding, a director or officer may be indemnified only if
he had no reasonable cause to believe his conduct was unlawful. If a director or
officer is wholly successful, on the merits or otherwise, in connection with
such a proceeding, such indemnification is mandatory.
Under the Company's Restated Articles of Incorporation, as amended (the
"Articles of Incorporation"), no director of the registrant will be liable to
the registrant or any of its shareholders for monetary damages for an act or
omission in the director's capacity as a director, except for liability (i) for
any breach of the director's duty of loyalty to the registrant or its
shareholders, (ii) for acts or omission not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) for any transaction
for which the director received an improper benefit, whether or not the benefit
resulted from an action taken within the scope of the director's office, (iv)
for acts or omissions for which the liability of a director is expressly
provided by statute, or (v) for acts related to an unlawful stock repurchase or
dividend payment. The Articles of Incorporation further provide that, if the
statutes of Texas are amended to further limit the liability of a director, then
the liability of the Company's directors will be limited to the fullest extent
permitted by any such provision.
The Company's Bylaws provide for indemnification of officers and
directors of the registrant and persons serving at the request of the registrant
in such capacities for other business organizations against certain losses,
costs, liabilities, and expenses incurred by reason of their positions with the
registrant or such other business organizations. The Company also has policies
insuring its officers and directors and certain officers and directors of its
wholly owned subsidiaries against certain liabilities for actions taken in such
capacities, including liabilities under the Securities Act of 1933, as amended
(the "Act").
For a statement of the Company's undertakings with respect to
indemnification of directors and officers, see Item 17 below.
9
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
*1.1 Form of Settlement Agreement by and between
Service Corporation International and J.P.
Morgan Securities Inc.
3.1 Restated Articles of Incorporation.
(Incorporated by references to Exhibit 3.1 to
Registration Statement No. 333-10867 on Form
S-3)
3.2 Articles of Amendment to Restated Articles of
Incorporation. (Incorporated by reference to
Exhibit 3.1 to Form 10-Q for the fiscal quarter
ended September 30, 1996)
3.3 Statement of Resolution Establishing Series of
Shares of Series D Junior Participating
Preferred Stock, dated July 27, 1998
(Incorporated by reference to Exhibit 3.2 to
Form 10-Q for the fiscal quarter ended June 30,
1998)
3.4 Bylaws, as amended. (Incorporated by reference
to Exhibit 3.1 to Form 10-Q for the fiscal
quarter ended September 30, 1999)
4.1 Rights Agreement dated as of May 14, 1998
between the Company and Harris Trust and Savings
Bank. (Incorporated by reference to Exhibit 99.1
to Form 8-K dated May 14, 1998)
4.2 Agreement Appointing a Successor Rights Agent
Under Rights Agreement, dated June 1, 1999, by
the Company, Harris Trust and Savings Bank and
The Bank of New York. (Incorporated by reference
to Exhibit 4.1 to Form 10-Q for the fiscal
quarter ended June 30, 1999)
*5.1 Opinion of Locke Liddell & Sapp LLP
10.1 Supplemental Executive Retirement Plan for
Senior Officers (as Amended and Restated
Effective as of January 1, 1998). (Incorporated
by reference to Exhibit 10.28 to Form 10-K for
the fiscal year ended December 31, 1998)
10.2 Form of First Amendment to Supplemental
Executive Retirement Plan for Senior Officers.
(Incorporated by reference to Exhibit 10.28 to
Form 10-K for the fiscal year ended December 31,
2000)
*10.3 Form of Amended and Restated Supplemental
Executive Retirement Plan (Effective January 1,
1998)
*10.4 First Amendment to the Amended and Restated
Supplemental Executive Retirement Plan
(Effective January 1, 2001)
*10.5 Form of correspondence from the Company to
participants in the Supplemental Executive
Retirement Plan for Senior Officers
*10.6 Form of Participant Settlement Agreement with
participants in Supplemental Executive
Retirement Plan for Senior Officers
*10.7 Form of correspondence from the Company to
participants in the Supplemental Executive
Retirement Plan
*10.8 Form of Participant Settlement Agreement with
participants Supplemental Executive Retirement
Plan
*23.1 Consent of Locke Liddell & Sapp LLP (included in
their opinion filed as Exhibit 5.1)
*23.2 Consent of Independent Accountants
(PricewaterhouseCoopers LLP)
*24.1 Powers of Attorney
----------
* Filed herewith.
(b) Financial Statement Schedules.
Financial statement schedules for the three years ended December 31,
2000.
Schedule
II Valuation and Qualifying Accounts
10
The Information required by Schedule II for the three years ended
December 31, 2000 is incorporated herein by reference to the Company's Annual
Report on Form 10-K filed with the Securities and Exchange Commission for the
fiscal year ended December 31, 2000.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended
(the "Act")
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
Securities offered (if the total dollar value of
Securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b), if, in the
aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to
the Securities offered therein, and the offering of such
Securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the Securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) or the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the Securities offered therein, and the offering of such Securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
11
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the Securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act,
the information omitted from the form of prospectus
filed as part of a registration statement in reliance
upon Rule 430A and contained in the form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Act shall be deemed to be part
of this registration statement as of the time it was
declared effective.
(2) For purposes of determining any liability under the Act,
each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration
statement relating to the Securities offered therein,
and the offering of such Securities at that time shall
be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the applicable trustees to act
under subsection (a) of Section 310 of the Trust Indenture Act, as amended, in
accordance with the Rules and Regulations prescribed by the Commission under
Section 305(b)(2) of that Act.
12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Service
Corporation International certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on this
26th day of October, 2001.
SERVICE CORPORATION INTERNATIONAL
By: /s/ JAMES M. SHELGER
------------------------------
James M. Shelger
Senior Vice President, General
Counsel and Secretary
13
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the date indicated.
SIGNATURE TITLE DATE
* Chairman of the Board and Chief October 26, 2001
------------------------------ Executive Officer
R. L. Waltrip
* Senior Vice President Chief October 26, 2001
------------------------------ Financial Officer
Jeffrey E. Curtiss (Principal Financial Officer)
* Vice President Corporate October 26, 2001
------------------------------ Controller (Principal
W. Cardon Gerner Accounting Officer)
* Director October 26, 2001
------------------------------
Anthony L. Coelho
* Director October 26, 2001
------------------------------
Jack Finkelstein
* Director October 26, 2001
------------------------------
A. J. Foyt, Jr.
* Director October 26, 2001
------------------------------
James H. Greer
* Director October 26, 2001
------------------------------
B.D. Hunter
* Director October 26, 2001
------------------------------
Victor L. Lund
* Director October 26, 2001
------------------------------
John W. Mecom, Jr.
* Director October 26, 2001
------------------------------
Clifton H. Morris, Jr.
* Director October 26, 2001
------------------------------
E. H. Thornton, Jr.
* Director October 26, 2001
------------------------------
W. Blair Waltrip
* Director October 26, 2001
------------------------------
Edward E. Williams
14
*By: /s/ JAMES M. SHELGER
---------------------
James M. Shelger
Attorney-in-Fact
15
EXHIBIT
NUMBER DESCRIPTION
------- -----------
*1.1 Form of Settlement Agreement by and between Service
Corporation International and J.P. Morgan Securities Inc.
3.1 Restated Articles of Incorporation. (Incorporated by
references to Exhibit 3.1 to Registration Statement No.
333-10867 on Form S-3)
3.2 Articles of Amendment to Restated Articles of Incorporation.
(Incorporated by reference to Exhibit 3.1 to Form 10-Q for the
fiscal quarter ended September 30, 1996)
3.3 Statement of Resolution Establishing Series of Shares of
Series D Junior Participating Preferred Stock, dated July 27,
1998 (Incorporated by reference to Exhibit 3.2 to Form 10-Q
for the fiscal quarter ended June 30, 1998)
3.4 Bylaws, as amended. (Incorporated by reference to Exhibit 3.1
to Form 10-Q for the fiscal quarter ended September 30, 1999)
4.1 Rights Agreement dated as of May 14, 1998 between the Company
and Harris Trust and Savings Bank. (Incorporated by reference
to Exhibit 99.1 to Form 8-K dated May 14, 1998)
4.2 Agreement Appointing a Successor Rights Agent Under Rights
Agreement, dated June 1, 1999, by the Company, Harris Trust
and Savings Bank and The Bank of New York. (Incorporated by
reference to Exhibit 4.1 to Form 10-Q for the fiscal quarter
ended June 30, 1999)
*5.1 Opinion of Locke Liddell & Sapp LLP
10.1 Supplemental Executive Retirement Plan for Senior Officers (as
Amended and Restated Effective as of January 1, 1998).
(Incorporated by reference to Exhibit 10.28 to Form 10-K for
the fiscal year ended December 31, 1998)
10.2 Form of First Amendment to Supplemental Executive Retirement
Plan for Senior Officers. (Incorporated by reference to
Exhibit 10.28 to Form 10-K for the fiscal year ended December
31, 2000)
*10.3 Form of Amended and Restated Supplemental Executive Retirement
Plan (Effective January 1, 1998)
*10.4 First Amendment to the Amended and Restated Supplemental
Executive Retirement Plan (Effective January 1, 2001)
*10.5 Form of correspondence from the Company to participants in the
Supplemental Executive Retirement Plan for Senior Officers
*10.6 Form of Participant Settlement Agreement with participants in
Supplemental Executive Retirement Plan for Senior Officers
*10.7 Form of correspondence from the Company to participants in the
Supplemental Executive Retirement Plan
*10.8 Form of Participant Settlement Agreement with participants
Supplemental Executive Retirement Plan
*23.1 Consent of Locke Liddell & Sapp LLP (included in their opinion
filed as Exhibit 5.1)
*23.2 Consent of Independent Accountants (PricewaterhouseCoopers
LLP)
*24.1 Powers of Attorney
----------
* Filed herewith.
EX-1.1
3
h91504ex1-1.txt
FORM OF SETTLEMENT AGREEMENT
EXHIBIT 1.1
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this "Agreement") is made and entered into
as of _____________, 2001, by and between Service Corporation International, a
Texas corporation ("SCI"), and J.P. Morgan Securities Inc., a Delaware
corporation ("JPMorgan"). Each of SCI and JPMorgan is a "Party" and sometimes
they are referred to, collectively, as the "Parties."
RECITALS
WHEREAS, SCI maintains the SERP and Senior SERP, pursuant to which
participants vested in one or both of those plans are currently entitled to
retirement benefits in the form of annual cash payments generally paid after
retirement;
WHEREAS, SCI anticipates (1) providing each participant vested in one
or both of the SERP and Senior SERP with a one-time opportunity to elect to
receive a lump-sum distribution of the present value (using a 10% discount rate)
of all or part of his or her retirement benefits in shares of Common Stock and
(2) if the participant so elects, distributing shares of Common Stock to such
Participant;
WHEREAS, SCI and JPMorgan anticipate providing each Participant with an
opportunity to elect to immediately sell all or some of the shares of Common
Stock received by such Participant to JPMorgan, the proceeds of which may be
used, in whole or in part, to satisfy such Participant's withholding tax
liability to SCI;
WHEREAS, the number of shares of Common Stock to be issued and
distributed to each Participant under the SERP and Senior SERP will be
calculated by dividing the amount of such Participant's retirement benefit which
such Participant elects to receive in Common Stock by the Distribution Price;
WHEREAS, if a Participant elects to sell shares of Common Stock to
JPMorgan pursuant to the above-referenced elections, JPMorgan will, subject to
the condition set forth herein, purchase such shares at the Distribution Price
per share, and SCI will pay JPMorgan, on behalf of such Participant, any
commission due on such transaction;
WHEREAS, JPMorgan anticipates reselling the shares of Common Stock it
purchases from the Participants into the market;
WHEREAS, if the aggregate amount of the prices at which the Shares are
sold by JPMorgan is less than the Distribution Price multiplied by the total
number of Shares sold, SCI will pay JPMorgan an amount equal to such difference;
WHEREAS, if the aggregate amount of the prices at which the Shares are
sold by JPMorgan exceeds the Distribution Price multiplied by the total number
of Shares sold, JPMorgan will pay SCI an amount equal to such excess; and
WHEREAS, capitalized terms have the meanings ascribed to them in
Article I or elsewhere in this Agreement.
NOW, THEREFORE, for and in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of all of which is
hereby acknowledged, the Parties agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS
1.1. "Adjustment Amount," which can be a positive or negative number,
means Aggregate Resale Price minus (1) the Aggregate Distribution Price and (2)
the Aggregate Commissions.
1.2. "Aggregate Commissions" means the sum of the Sales Commissions.
1.3. "Aggregate Distribution Price" means the Distribution Price
multiplied by the total number of Shares either sold by JPMorgan into the
market or delivered to SCI in accordance with Section 2.2(b), as contemplated by
Article II hereof.
1.4. "Aggregate Resale Price" means the aggregate amount of the prices
at which the Shares are sold by JPMorgan into the market, as contemplated by
Article II hereof.
1.5. "Closing Date" means the first business day after the Pricing
Period.
1.6. "Sales Commission" means, for each Covered Purchase, a sales
commission equal to $0.04 per share purchased by JPMorgan in the Covered
Purchase.
1.7. "Common Stock" means SCI's common stock, $1.00 par value.
1.8. "Covered Purchase" means a purchase by JPMorgan of shares of
Common Stock from a Participant pursuant to such Participant's Election.
1.9. "Distribution Price" means the average closing price per share of
the Common Stock on the New York Stock Exchange for the Pricing Period.
1.10. "Election" means an election by a Participant (1) to receive a
lump-sum distribution of the present value (using a 10% discount rate) of all or
part of his or her retirement benefits under the Senior SERP and/or the SERP in
shares of Common Stock and (2) to resell immediately all or some of the shares
of Common Stock received by such Participant to JPMorgan.
1.11. "Election Deadline" means ____________, 2001, the date by which
the Participants must make an Election.
2
1.12. "Participant" means each participant vested in one or both of the
SERP and Senior SERP electing to receive a lump-sum distribution of the
discounted present value (using a 10% discount rate) of all or part of his or
her vested retirement benefits in shares of Common Stock in lieu of all or part
of the remaining annual cash payments provided for pursuant to the SERP or
Senior SERP, as applicable.
1.13. "Pricing Period" means the five trading days immediately after
the Election Deadline.
1.14. "Senior SERP" means the Service Corporation International
Supplemental Executive Retirement Plan for Senior Officers (As Amended and
Restated Effective as of January 1, 1998), as further amended effective January
1, 2001.
1.15. "SERP" means the Amended and Restated Service Corporation
International Supplemental Executive Retirement Plan (effective as of January 1,
1998), as further amended effective January 1, 2001.
1.16. "Settlement Date" means the date on which JPMorgan completes the
sale of the Shares as contemplated by Section 2.1, below.
1.17. "Shares" means all shares of Common Stock that JPMorgan purchases
from the Participants pursuant to an Election.
ARTICLE II.
SETTLEMENT
2.1. Purchase and Sale of the Shares. Subject to the terms and
conditions set forth herein, JPMorgan hereby agrees to purchase from the
Participants on the Closing Date, at the Distribution Price per share, all
shares of Common Stock which the Participants receive from SCI pursuant to one
or more Elections and elect to sell to JPMorgan pursuant to one or more
Elections; provided, however, that in no event will JPMorgan be required to
purchase more than 6,000,000 shares of Common Stock from the Participants.
Subject to the terms and conditions set forth herein, JPMorgan hereby further
agrees to use its best efforts to sell the Shares into the market in an orderly
fashion as soon as practicable after the Closing Date and prior to the
Settlement Date. JPMorgan's obligations hereunder are not contingent on the
exercise of any minimum number of Elections.
2.2. Settlement. If the Adjustment Amount is a negative number (i.e.,
the Aggregate Distribution Price plus the Aggregate Commissions exceeds the
Aggregate Resale Price), SCI shall pay to JPMorgan in immediately available
funds an amount equal to the negative Adjustment Amount. If the Adjustment
Amount is a positive number (i.e., the Aggregate Distribution Price plus the
Aggregate Commissions is less than the
3
Aggregate Resale Price), JPMorgan shall pay to SCI in immediately available
funds an amount equal to the Adjustment Amount. Any such excess or deficit
payment shall be due and payable three business days after the Settlement Date.
Notwithstanding anything herein to the contrary, if for any reason JPMorgan is
unable to sell some or all of the Shares into the market prior to the 15th
business day following the Closing Date, JPMorgan will have the option at
anytime until the Settlement Date to deliver up to $5,000,000 of such unsold
Shares to SCI for repurchase at the Distribution Price, in which case the
Aggregate Resale Price will be calculated on the Settlement Date as if such
Shares had been sold into the market at the Distribution Price.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1. SCI hereby represents and warrants to JPMorgan, as of the Election
Date and the Settlement Date, as follows:
(a) A registration statement on Form S-3 (Registration No.
333-__________) (the "Registration Statement"), including a prospectus (the
"Prospectus") (i) has been prepared by SCI in conformity with the requirements
of the Securities Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder (the
"Securities Act"), (ii) has been filed with the Commission and (iii) has become
effective. Such Registration Statement and the related Prospectus may have been
amended or supplemented from time to time prior to the Election Deadline; any
such amendment to the applicable Registration Statement was so prepared and
filed and any such amendment has become effective. Any reference in this
Agreement to the Registration Statement, any preliminary form of prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the effective date of the
Registration Statement or the date of any preliminary prospectus or the
Prospectus, as the case may be; and any reference to "amend", "amendment" or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed under the Exchange Act after such date which are deemed to be
incorporated by reference therein. Copies of such Registration Statement and the
Prospectus relating thereto, any such amendment or supplement, and all documents
incorporated by reference therein which were filed with the Commission on or
prior to the Election Date have been delivered to JPMorgan. SCI has included in
the Registration Statement, as amended at the date the Registration Statement
was declared effective, all information required by the Securities Act to be
included in the Prospectus with respect to the Shares and the offering and sale
thereof as contemplated by this Agreement. Except to the extent that JPMorgan
shall agree in writing to a modification, the Registration Statement and the
Prospectus shall be in all substantive respects in the form furnished to
JPMorgan prior to the Election Deadline or, to the extent not completed at the
Election Deadline, shall contain only such
4
specific additional information and other changes as SCI has advised, a
reasonable time prior to the Election Deadline, is to be included or made
therein and as to which JPMorgan has not reasonably objected.
(b) The Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Registration Statement and the Prospectus, as of the Election
Deadline and at the Settlement Date, and any amendment or supplement thereto,
conformed or will conform in all material respects to the requirements of the
Securities Act; and no such document included or will include an untrue
statement of a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in the light of the circumstances under which they
were made) not misleading.
(c) No order preventing or suspending the effectiveness of the
Registration Statement or the use of any preliminary prospectus or the
Prospectus is in effect and no proceedings for that purpose are pending before
or threatened by the Commission and (B) each document, if any, filed or to be
filed pursuant to the Exchange Act, and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and did not, or will not when so filed, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(d) PricewaterhouseCoopers, who are reporting upon the audited
financial statements and the supporting schedules of SCI included or
incorporated by reference in the Registration Statement and the Prospectus, are
independent public accountants within the meaning of the Securities Act. The
financial statements, and the related notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus, present fairly the
consolidated financial position of SCI and its consolidated subsidiaries as of
the dates indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; and said financial statements
have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis, except as set forth
therein, and the supporting schedules included or incorporated by reference in
the Registration Statement present fairly the information required to be stated
therein.
(e) SCI has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Texas, has the
corporate power and authority to own its property and to conduct its business as
described in the Registration Statement and the Prospectus and to enter into
this Agreement, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing could not,
singly or in the aggregate, reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), earnings, business affairs or
business prospects of SCI and its subsidiaries, taken as a whole (each, a
"Material Adverse Effect").
5
(f) Each direct and indirect foreign and domestic subsidiary
of SCI (each, a "Subsidiary," and collectively, the "Subsidiaries") has been
duly incorporated or organized, is validly existing as a corporation or entity
in good standing under the laws of the jurisdiction of its incorporation or
organization, has the corporate or other power and authority to own its property
and to conduct its business as described in the Registration Statement and the
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so incorporated, be in existence, have such power and authority,
be so qualified or be in good standing could not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(g) This Agreement has been duly and validly authorized,
executed and delivered by SCI.
(h) Since the date of the latest consolidated financial
statements of SCI and its subsidiaries included or incorporated by reference
into the Registration Statement and the Prospectus, except as set forth in or
expressly contemplated by the Registration Statement and the Prospectus, there
has not been any material adverse change in the management, condition (financial
or otherwise), earnings, business affairs or business prospects of SCI and its
subsidiaries, taken as a whole (each, a "Material Adverse Change," and any event
or state of facts which could, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Change is herein referred to as a
"Prospective Material Adverse Change"), whether or not arising from transactions
or events occurring in the ordinary course of business.
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth
therein, (A) there have been no transactions or contracts (written or oral)
entered into or agreed to be entered into by SCI or any of its subsidiaries
(other than those in the ordinary course of business) which are material to SCI
and its subsidiaries, taken as a whole and (B) there has been no dividend or
distribution of any kind declared, paid or made by SCI on any class of its
capital stock, other than regularly scheduled quarterly dividends in accordance
with the past practice of SCI.
(j) SCI has the authorized, issued and outstanding
capitalization set forth in the Prospectus under "Description of Capital Stock."
The authorized capital stock of SCI conforms as to legal matters to the
description thereof contained in the Registration Statement and the Prospectus,
and all of the outstanding shares of capital stock of SCI have been duly
authorized and validly issued, are fully paid and nonassessable and are not
subject to any preemptive or similar rights. Each of the Rights Agreement dated
as of May 14, 1998, between SCI and the Harris Trust and Savings Bank, and the
Agreement Appointing a Successor Rights Agent under Rights Agreement dated June
1, 1999, among SCI, the Harris Trust and Savings Bank and The Bank of New York,
has been duly authorized, executed and delivered by SCI; the rights to purchase
SCI's Series D Junior Participating Preferred Stock outstanding thereunder have
been
6
duly authorized. Except as described in or expressly contemplated by the
Prospectus, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interest
in SCI or any of its subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital
stock of SCI or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options.
(k) All corporate action required to be taken for the
authorization, issuance and sale of the Shares as contemplated by this Agreement
has been validly and sufficiently taken. The Shares will constitute the valid
and binding obligations of SCI.
(l) The Shares have been duly authorized and validly reserved
for issuance by all necessary corporate action and such Shares, when issued will
be validly issued and fully paid and nonassessable; no holder thereof will be
subject to personal liability solely by reason of being such a holder; and the
issuance of such Shares will not be subject to preemptive rights.
(m) Neither SCI nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its articles of incorporation or by-laws or any indenture,
mortgage, deed of trust, loan agreement, note, lease, license, partnership
agreement, franchise agreement or other agreement or instrument to which SCI or
any of its subsidiaries is a party or by which it or any of them may be bound or
affected or to which any of their respective properties may be subject (each a
"Contract," and collectively, the "Contracts"), except for violations and
defaults which individually and in the aggregate are not material to SCI and its
subsidiaries taken as a whole. The execution and delivery by SCI of, and the
full and timely performance by SCI of its obligations under, this Agreement, the
compliance by SCI with the terms hereof, and the consummation of the
transactions contemplated herein, (A) have been duly authorized by all necessary
corporate action on the part of SCI, (B) do not and will not result in any
violation of the articles of incorporation or by-laws of SCI and (C) do not and
will not conflict with, or result in a breach or violation of, any of the terms
or provisions of, or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or give rise to any
right to accelerate the maturity or require the prepayment of any indebtedness
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any material property or assets of SCI or any of its
subsidiaries under (I) the Contracts, other than any such conflict, breach,
default, acceleration, prepayment, lien, charge or encumbrance that, could not
individually or in the aggregate, reasonably be expected to result in any
Material Adverse Effect, (II) any existing applicable law, rule or regulation
(other than the securities or Blue Sky laws of the various states and other
jurisdictions of the United States of America) or (III) any judgment, order or
decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over SCI or any of its subsidiaries or any of their
respective properties or assets.
7
(n) No authorization, approval, consent or license of, or
filing with, any government, governmental instrumentality or court, domestic or
foreign (other than as have been made and obtained and are in full force and
effect under the Securities Act or as may be required under the securities or
Blue Sky laws of the various states and other jurisdictions of the United States
of America) is required for the valid authorization, issuance, sale and delivery
of the Shares by SCI, the execution and delivery by SCI of, or the full and
timely performance by SCI of each of its obligations under or contemplated by,
this Agreement and the compliance by SCI with its obligations hereunder.
(o) There are no contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed or incorporated by reference as exhibits to the Registration Statement
that are not described, filed or incorporated as required.
(p) No holder of any securities of SCI has any rights, not
effectively satisfied or waived, to require SCI to register the sale of any
securities under the Securities Act in connection with the filing of the
Registration Statement or the consummation of the transactions contemplated
therein or pursuant to this Agreement.
(q) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of SCI, threatened against or affecting SCI or any
of its subsidiaries or any of their respective properties or to which SCI or any
of its subsidiaries is or may be a party or to which any property of SCI or any
of its subsidiaries is or may be the subject which, if determined adversely to
SCI or any of its subsidiaries, could individually or in the aggregate have, or
reasonably be expected to have a Material Adverse Effect, and, to the best of
the SCI's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(r) SCI and its subsidiaries have good and marketable title in
fee simple to all items of real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described or referred to in the
Prospectus or such as do not materially affect the value of such property and do
not interfere with the use made or proposed to be made of such property by SCI
and its subsidiaries; and any real property and buildings held under lease by
SCI and its subsidiaries are held by them under valid, existing and enforceable
leases with such exceptions as are not material and do not interfere with the
use made or proposed to be made of such property and buildings by SCI or its
subsidiaries.
(s) SCI is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
8
(t) SCI has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with the Government of Cuba or with any person or affiliate located in Cuba.
(u) SCI and its subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed and have paid
all taxes shown thereon and all assessments received by them or any of them to
the extent that such taxes have become due and are not being contested in good
faith; and, except as disclosed in the Registration Statement and the
Prospectus, there is no tax deficiency which has been or might reasonably be
expected to be asserted or threatened against SCI or any subsidiary.
(v) SCI has not taken nor will it take, directly or
indirectly, any action designed to, or that might reasonably be expected to,
cause or result in the stabilization or manipulation of the price of the Common
Stock.
(w) Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended,
("ERISA") that is maintained, administered or contributed to by SCI or any of
its affiliates for employees or former employees of SCI and its affiliates has
been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended, (the "Code"). No
prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption. For
each such plan which is subject to the funding rules of Section 412 of the Code
or Section 302 of ERISA no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair
market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeded the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions.
3.2. JPMorgan hereby represents and warrants to SCI, as of the Election
Date and the Settlement Date, as follows:
(a) JPMorgan is a corporation validly existing and in good
standing under the laws of the State of Delaware with corporate power and
corporate authority to perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement
by JPMorgan and the consummation by JPMorgan of the transactions described
herein have been duly authorized by all necessary corporate action on the part
of JPMorgan; and this Agreement, when duly executed and delivered by JPMorgan,
will constitute a valid and legally binding instrument of JPMorgan enforceable
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar
9
laws of general applicability relating to or affecting creditors' rights and
general equitable principles.
ARTICLE IV.
INDEMNIFICATION AND CONTRIBUTION
4.1. SCI agrees to indemnify and hold harmless JPMorgan and each
person, if any, who controls JPMorgan within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages and liabilities (including, without limitation, the
legal fees and other expenses reasonably incurred in connection with defending
or investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if SCI shall have
furnished any amendments or supplements thereto in compliance with the terms
hereof), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to JPMorgan furnished to SCI in writing by JPMorgan expressly for use
therein.
4.2. JPMorgan agrees to indemnify and hold harmless SCI, the directors
of SCI, the officers of SCI who sign the Registration Statement and each person,
if any, who controls SCI within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if SCI shall have
furnished any amendments or supplements thereto in compliance with the terms
hereof), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to
JPMorgan furnished to SCI in writing by JPMorgan expressly for use in the
Registration Statement or any amendment or supplement thereto.
4.3. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to any of the
two preceding paragraphs of this Section 4, such person (hereinafter called the
"Indemnified Person") shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the "Indemnifying Person") in
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall promptly retain counsel satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding; provided, that the failure to notify the
Indemnifying Person shall not
10
relieve it from any liability which it may have pursuant to this Section 4
except to the extent it has been materially prejudiced (through forfeiture of
substantive rights) by such failure. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary, (ii) there has been a failure by the Indemnifying Person to retain
promptly counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that, in connection
with any proceeding or related proceedings in the same jurisdiction, (a) SCI
shall not be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for JPMorgan and all persons, if any, who control
JPMorgan within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and (b) JPMorgan shall not be liable for the fees
and expenses of more than one separate firm (in addition to any local counsel)
for SCI, its directors, its officers who sign the Registration Statement and
each person, if any, who controls SCI within the meaning of either such Section,
and that all such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for JPMorgan and such control persons of
JPMorgan, such firm shall be designated in writing by JPMorgan. In the case of
any such separate firm for SCI, and such directors, officers and control persons
of SCI, such firm shall be designated in writing by SCI. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement (1) includes
an unconditional written release of such Indemnified Person, in form and
substance satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (2) does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any Indemnified Person.
4.4. If the indemnification provided for in Section 4.1 or Section 4.2
is unavailable to any extent to an Indemnified Person under such paragraph in
respect of any
11
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities as follows: as between SCI on the one hand and JPMorgan on the other
(i) in such proportion as is appropriate to reflect the aggregate relative
benefits received by SCI and by JPMorgan from the offering of the shares of
Common Stock as contemplated by this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of SCI and of JPMorgan in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by SCI on the one hand and
JPMorgan on the other hand shall be deemed to be in the same respective
proportions as Aggregate Distribution Price, in the case of SCI, and the
Aggregate Commissions in the case of JPMorgan. The relative fault of SCI on the
one hand and of JPMorgan on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of the material
fact or the omission or alleged omission to state a material fact relates to
information supplied by SCI or by JPMorgan and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
4.5. SCI and JPMorgan agree that it would not be just and equitable if
contribution pursuant to this Article IV were determined by pro rata allocation
or by any other method or allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Article IV, in no event shall JPMorgan be required to
contribute any amount in excess of the Aggregate Commissions. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
4.6. The indemnity and contribution agreements contained in this
Article IV are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
4.7. The indemnity and contribution agreements contained in this
Article IV and the representations and warranties of SCI contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of JPMorgan or any person controlling JPMorgan or SCI, its officers or directors
or any other person controlling SCI and (iii) acceptance of and payment for any
of the shares of Common Stock.
12
ARTICLE V.
COVENANTS OF SCI
5.1. SCI covenants and agrees with JPMorgan as follows:
(a) to file promptly all reports and any definitive proxy or
information statements required to be filed by SCI with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of the Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; and to furnish copies of the
Prospectus to JPMorgan in New York City prior to 10:00 a.m., New York City time,
on the business day next succeeding the date of this Agreement in such
quantities as JPMorgan may reasonably request;
(b) to deliver, at the expense of SCI, to JPMorgan one signed
copy of the Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by reference
therein and, during the period mentioned in paragraph (e) below, to JPMorgan as
many copies of the Prospectus (including all amendments and supplements thereto)
and documents incorporated by reference therein as JPMorgan may reasonably
request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, to furnish to JPMorgan a copy of the
proposed amendment or supplement for review and not to file any such proposed
amendment or supplement to which JPMorgan reasonably objects;
(d) to advise JPMorgan promptly, and to confirm such advice in
writing (i) when the Registration Statement has become effective, (ii) when any
amendment to the Registration Statement has been filed or becomes effective,
(iii) when any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish JPMorgan with copies thereof, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose, (vi) of the occurrence of any event, within the
period referenced in paragraph (e) below, as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, and (vii) of the receipt by SCI of any
notification with respect to any suspension of the qualification of the Shares
for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the issuance
of any such stop order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order suspending any such
qualification of the Shares, or notification of any such order thereof and, if
issued, to obtain as soon as possible the withdrawal thereof;
13
(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for JPMorgan a
prospectus relating to the Shares is required by law to be delivered in
connection with sales by JPMorgan, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at the expense of SCI, to JPMorgan such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as JPMorgan shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Shares; provided that SCI shall not
be required to file a general consent to service of process in any jurisdiction;
(g) to use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange");
(h) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the performance of the transactions
contemplated hereby, including without limiting the generality of the foregoing,
all costs and expenses (i) incident to the preparation, registration, transfer,
execution and delivery of the Shares, (ii) all SEC fees in connection with the
sale of the Shares by JPMorgan into the market, (iii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iv) incurred in connection
with the registration or qualification of the Shares under the laws of such
jurisdictions as JPMorgan may designate (including fees of counsel for JPMorgan
and its disbursements), (v) in connection with the listing of the Shares on the
New York Stock Exchange, (vi) related to the filing with, and clearance of the
offering by, the National Association of Securities Dealers, Inc., (vii) in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Preliminary and Supplemental Blue Sky
Memoranda and the furnishing to JPMorgan of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as herein provided, (viii)
the cost of preparing stock certificates and (ix) the cost and charges of any
transfer agent and any registrar;
(i) to deliver to JPMorgan, on the Closing Date, a signed
opinion of Locke Liddell & Sapp LLP ("LLS"), special counsel for SCI, addressed
to JPMorgan, dated the Closing Date and reasonably satisfactory to counsel for
JPMorgan, to the effect that LLS has participated in conferences with
representatives of SCI and representatives of its independent counsel at which
the contents of the
14
Registration Statement and the Prospectus and any amendment and supplement
thereto and related matters were discussed and, although LLS assumes no
responsibility for the accuracy, completeness or fairness of the Registration
Statement, the Prospectus or any amendment or supplement thereto (except as
expressly provided therein), nothing has come to the attention of LLS which
leads LLS to believe that (1) the Registration Statement (including any
information deemed to be part of the Registration Statement at the time of
effectiveness, but excluding the financial statements and schedules and other
financial and statistical data included or incorporated by reference therein, as
to which LLS need not make any statement or express any opinion), when it became
effective and at the Election Deadline and the Settlement Date contained and, as
of the date such opinion is delivered, contains any untrue statement of a
material fact or omitted or omits to state a materials fact required to be
stated therein or necessary to make the statements therein not misleading and
(2) the Prospectus (other than the financial statements and schedules and other
financial and statistical data included or incorporated by reference therein, as
to which such special counsel need not make any statement or express any
opinion), as of its date and at the Election Deadline and the Settlement Date
contained and, as of the date such opinion is delivered, contains any untrue
statement of a material fact or omitted or omits to state a materials fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(j) to notify JPMorgan in writing, on or before the Closing
Date, of the wiring instructions for any amounts to be paid to SCI by JPMorgan
either on behalf of Participants in settlement of applicable withholding taxes
or pursuant to Section 2.2 hereof; and
(k) to provide to JPMorgan, before the Closing Date, (i) a
completed Brokerage Account Application signed by each Participant (other than
those Participants who elect to use a pre-existing account at JPMorgan on Form 1
of the Participant Settlement Agreement) and (ii) a schedule setting forth, with
respect to each Participant, the following information: (A) the Participant's
name and address, (B) the total number of shares of Common Stock which such
Participant will receive from SCI on the Closing Date, (C) the total number of
shares of Common Stock to be sold by such Participant and purchased by JPMorgan
and (D) the cash amount, if any, to be sent to the Company on such Participant's
behalf in payment of applicable withholding taxes.
ARTICLE VI.
GENERAL PROVISIONS
6.1. Notices. All communications hereunder shall be in writing and
shall be mailed (by first-class mail, registered or certified, postage prepaid),
delivered personally or telecopied and confirmed:
if to SCI, at:
15
Service Corporation International
1929 Allen Parkway
Houston, Texas 77019
Attention: Mr. Frank Hundley
Facsimile: 713-525-7710
with a copy to:
Locke Liddell & Sapp LLP
3400 Chase Tower, 600 Travis
Houston, Texas 77002
Attention: Marcus A. Watts, Esq.
Facsimile: (713) 223-3717
if to JPMorgan, at:
J. P. Morgan Securities Inc.
277 Park Avenue, 9th Floor
New York, New York 10017
Attention: Kelly Maslick
Facsimile: (212) 622-7027
6.2. Binding Effect; Assignment. This Agreement shall be binding upon,
and shall inure solely to the benefit of, each of the Parties, and each of their
respective heirs, executors, administrators, successors and permitted assigns,
and no other person, partnership, association, corporation or other entity shall
acquire or have any right under or by virtue of this Agreement. Neither Party
may assign any of its rights or obligations hereunder to any other person or
entity without the prior written consent of the other Party.
6.3. Governing Law; Jurisdiction. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York in effect at
the time of the execution hereof (without application of any conflicts of law
principles). Each of the parties hereto irrevocably agrees that, except as
otherwise set forth in this paragraph, any state or federal court sitting in the
City of New York shall have exclusive jurisdiction to hear and determine any
suit, action or proceeding and to settle any dispute arising out of or relating
to this Agreement and, for such purposes, irrevocably submits to the
jurisdiction of such courts. SCI hereby agrees that service of any process,
summons, notice or document by hand delivery or registered mail addressed to the
SCI, shall be effective service of process for any suit, action or proceeding
brought in any such court. SCI irrevocably and unconditionally waives any
objection to the laying of venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum. SCI agrees that a final judgment in any
such suit, action or proceeding brought in any such court shall be conclusive
and binding upon SCI and may be enforced in any other court to whose
jurisdiction SCI is or may in the future be subject, by suit upon judgment. SCI
further
16
agrees that nothing herein shall affect JPMorgan's right to effect service of
process in any other manner permitted by law or to bring a suit, action or
proceeding (including a proceeding for enforcement of a judgment) in any other
court or jurisdiction in accordance with applicable law.
6.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which counterparts when so executed and delivered shall be
deemed to be an original, but all such respective counterparts shall together
constitute but one and the same instrument.
6.5. Entire Agreement. This Agreement constitutes the entire agreement
of the Parties with respect to the subject matter hereof.
6.6. Amendments. This Agreement may not be amended, modified or changed
in whole or in part, except by an instrument in writing signed by SCI and
JPMorgan.
17
IN WITNESS WHEREOF, and intending to be legally bound thereby, each of
Service Corporation International and J.P. Morgan Securities Inc. has signed or
caused to be signed its name, all as of the day and year first above written.
SERVICE CORPORATION INTERNATIONAL
By:
---------------------------------
James M. Shelger
Senior Vice President, General
Counsel and Secretary
J.P. MORGAN SECURITIES INC.
By:
---------------------------------
Perry Bartol
Managing Director
18
EX-5.1
4
h91504ex5-1.txt
OPINION OF LOCKE LIDDELL & SAPP LLP
EXHIBIT 5.1
October 26, 2001
Service Corporation International
1929 Allen Parkway
Houston, Texas 77019
Ladies and Gentlemen:
We have acted as counsel for Service Corporation International., a
Texas corporation (the "Company"), in connection with the filing of the
Registration Statement on Form S-3 (the "Registration Statement") with respect
to the registration of 6,000,000 shares (the "Shares") of the Common Stock,
$1.00 par value (the "Common Stock"), of the Company.
In connection with the foregoing, we have examined or are familiar with
the corporate records of the Company, including its Restated Articles of
Incorporation, its Bylaws and resolutions its directors. We have also examined
the Registration Statement of the Company, including the related prospectus and
other attachments, filed with the Securities and Exchange Commission to register
the Shares under the Securities Act of 1933, as amended (the "Securities Act").
We have assumed the genuineness and authenticity of all signatures on
all original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies and the due authorization, execution, delivery or recordation of all
documents where due authorization, execution or recordation are prerequisites to
the effectiveness thereof.
Based upon the foregoing, and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares have
been duly authorized and are validly issued, fully paid and nonassessable.
The foregoing opinions are limited to the laws of the United States of
America and the State of Texas. For purposes of this opinion, we assume that the
Shares will be issued in compliance with all applicable state securities or Blue
Sky laws.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the
statements made regarding our Firm and to the use of our name under the heading
"Legal Matters" in the prospectus constituting a part of the Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act and the rules and regulations thereunder.
LOCKE LIDDELL & SAPP LLP
By: /s/ DAVID F. TAYLOR
--------------------------
David F. Taylor
EX-10.3
5
h91504ex10-3.txt
FORM OF AMENDED SUPP. EXEC. RETIREMENT PLAN
EXHIBIT 10.3
AMENDED AND RESTATED
SERVICE CORPORATION INTERNATIONAL
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
AMENDED AND RESTATED
SERVICE CORPORATION INTERNATIONAL
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
SECTION
ARTICLE 1 - DEFINITIONS
Accrued Benefit..................................................... 1.1
Average Monthly Compensation........................................ 1.2
Beneficiary......................................................... 1.3
Board of Directors.................................................. 1.4
Change of Control................................................... 1.5
Code................................................................ 1.6
Company............................................................. 1.7
Committee........................................................... 1.8
Credited Service.................................................... 1.9
Eligible Earnings................................................... 1.10
Employee............................................................ 1.11
Participant......................................................... 1.12
Person.............................................................. 1.13
Plan................................................................ 1.14
Plan Year........................................................... 1.15
Primary Social Security Benefit..................................... 1.16
Retirement.......................................................... 1.17
Retirement Benefit.................................................. 1.18
Retirement Date..................................................... 1.19
SCI................................................................. 1.20
SCI Pension Plan.................................................... 1.21
Securities Act...................................................... 1.22
Stock............................................................... 1.23
Subsidiary.......................................................... 1.24
Voting Securities................................................... 1.25
ARTICLE II - ELIGIBILITY
ARTICLE III - RETIREMENT BENEFIT
Calculation of Retirement Benefit.................................... 3.1
Form and Time of Payment............................................. 3.2
ARTICLE IV - BENEFITS IN THE EVENT OF A CHANGE OF CONTROL
-i-
TABLE OF CONTENTS (CONTINUED)
Section
ARTICLE V - DEATH BENEFIT
Death After the Participant's Retirement Date .......... 5.1
Death Before the Participant's Retirement Date ......... 5.2
Beneficiary Designation ................................ 5.3
ARTICLE VI - PROVISIONS RELATING TO ALL BENEFITS
Effect of This Article ................................. 6.1
Benefits Upon Re-employment ............................ 6.2
Claims Procedure ....................................... 6.3
ARTICLE VII - ADMINISTRATION
Committee Appointment .................................. 7.1
Committee Organization and Voting ...................... 7.2
Powers of the Committee ................................ 7.3
Committee Discretion ................................... 7.4
Reimbursement of Expenses and Indemnification .......... 7.5
ARTICLE VIII - ADOPTION BY SUBSIDIARIES
Procedure for and Status After Adoption ................ 8.1
Termination of Participation By Adopting Subsidiary .... 8.2
ARTICLE IX - AMENDMENT AND/OR TERMINATION
Amendment or Termination of the Plan ................... 9.1
No Retroactive Effect on Accrued Benefits .............. 9.2
ARTICLE X - FUNDING
Payments Under This Plan are the Obligation
of the Company ....................................... 10.1
Plan May Be Funded Through a Rabbi Trust ............... 10.2
Participants Must Reply Only on General
Credit of the Company ................................ 10.3
-ii-
TABLE OF CONTENTS (CONTINUED)
Section
ARTICLE XI - MISCELLANEOUS
Responsibility for Distributions and
Withholding of Taxes ..................... 11.1
Limitation of Rights ....................... 11.2
Distributions to Incompetents or Minors .... 11.3
Nonalienation of Benefits .................. 11.4
Reliance Upon Information .................. 11.5
Severability ............................... 11.6
Survival of Terms .......................... 11.7
Notice ..................................... 11.8
Gender and Number .......................... 11.9
Governing Law .............................. 11.10
-iii-
AMENDED AND RESTATED
SERVICE CORPORATION INTERNATIONAL
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
WHEREAS, Service Corporation International has established the Service
Corporation International Supplemental Executive Retirement Plan (the "Plan")
effective June 6, 1988, which provides, for certain highly compensated
management personnel, a supplement to their retirement pay so as to retain their
loyalty and to offer a further incentive to them to maintain and increase their
standard of performance;
WHEREAS, Service Corporation International retained the right to amend
the Plan at any time by an instrument in writing; and
WHEREAS, Service Corporation International has determined that the Plan
should be amended and restated;
NOW, THEREFORE, Service Corporation International amends and restates
the Plan as follows;
ARTICLE I
DEFINITIONS
1.1 "ACCRUED BENEFIT" means as of any given time the amount of a
Participant's unpaid Retirement Benefit calculated under Section 3.1. The
mortality and interest rate assumptions used to determine the commuted lump sum
value of the Accrued Benefit will be the same assumptions as are then currently
being used in computing benefits under the SCI Pension Plan. If there is no SCI
Pension Plan or successor qualified defined benefit plan, then the actuarial
factors to be used will be those actuarial factors as are selected by the
actuarial firm, which last serviced the SCI Pension Plan prior to its
termination or merger, as being then appropriate had the SCI Pension Plan
remained in existence at its last level of benefits and with its last
participant census.
1.2 "AVERAGE MONTHLY COMPENSATION" means a Participant's average
monthly Eligible Earnings from the Company computed on the basis of full
calendar months for the five successive calendar years during which the
Participant earned a full year of Credited Service in each and which will give
the highest average monthly rate of Eligible Earnings for the Participant. If a
Participant has been employed less than five successive calendar years of
successive calendar years during which he earned a full year of Credited Service
will instead be averaged. However, in either circumstance, the final calendar
year of employment, whether full or partial, may be counted even if the
Participant has not earned a full year of Credited Service.
1.3 "BENEFICIARY" means a person or entity designated by the
Participant under the terms of this Plan to receive any amounts distributed
under the Plan upon the death of the Participant.
-1-
1.4 "BOARD OF DIRECTORS" means the Board of Directors of SCI.
1,5 "CHANGE OF CONTROL" means an event listed in subparagraph (a), (b),
(c) or (d) below.
(a) The acquisition by a Person of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Securities Act)
of 20% or more of either (1) the then outstanding shares of Stock or
(2) the combined voting power of the then outstanding Voting
Securities.
However, the following acquisitions shall not constitute a
Change of Control: (1) any acquisition directly from SCI (excluding an
acquisition by virtue of the exercise of a conversion privilege), (2)
any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by any corporation controlled by SCI or (3) any
acquisition by a corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or
consolidation, the conditions described in clauses (1), (2) and (3) of
subsection (c) of this definition are satisfied.
(b) Individuals who, as of January 1, 1992, constitute the
Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors.
However, any individual becoming a director subsequent to
January 1, 1992, whose election, or nomination for election by SCI's
shareholders, was approved by (1) a vote of at least a majority of the
directors then constituting the Incumbent Board, or (2) a vote of at
least a majority of the directors then comprising the Executive
Committee of the Board of Directors at a time when that committee was
composed of at least five members and all members of the committee
were either members of the Incumbent Board or considered as being
members of the Incumbent Board under clause (1) of this subsection (b),
shall be considered as though that individual were a member of the
Incumbent Board, but excluding, for this purpose, any individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as those terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Securities Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board of Directors.
(c) Approval by the shareholders of SCI of a reorganization,
merger or consolidation, in each case, unless, immediately following
the reorganization, merger or consolidation (1) more than 60% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from that reorganization, merger or consolidation
and the combined voting power of the then outstanding voting
securities of the corporation entitled to vote generally in the
election of directors is
-2-
then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the outstanding Stock and
outstanding Voting Securities immediately prior to the reorganization,
merger or consolidation in substantially the same proportions as their
ownership, immediately prior to the reorganization, merger or
consolidation, of the outstanding Stock and outstanding Voting
Securities, as the case may be, (2) no Person (excluding any employee
benefit plan or related trust) of the corporation resulting from the
reorganization, merger or consolidation and any Person beneficially
owning, immediately prior to the reorganization, merger or
consolidation, directly or indirectly, 20% or more of the outstanding
Stock or outstanding Voting Securities, as the case may be,
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from the reorganization, merger or consolidation
or the combined voting power of the then outstanding voting securities
of the corporation entitled to vote generally in the election of
directors and (3) at least a majority of the members of the board of
directors of the corporation resulting from the reorganization, merger
or consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement providing for the reorganization,
merger or consolidation.
(d) Approval by the shareholders of SCI of (1) a complete
liquidation or dissolution of SCI or (2) the sale or other disposition
of all or substantially all of the assets of SCI, other than to a
corporation, with respect to which immediately following the sale or
other disposition, (x) more than 60% of, respectively, the then
outstanding shares of common stock of the corporation and the combined
voting power of the then outstanding voting securities of the
corporation entitled to vote generally in the election of directors is
then beneficially owned directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively of the outstanding Stock and outstanding Voting Securities
immediately prior to that sale or other disposition in substantially
the same proportion as their ownership, immediately prior to the sale
or other disposition, of the outstanding Stock and outstanding Voting
Securities, as the case may be, (y) no person (excluding any employee
benefit plan or related trust) of the corporation and any Person
beneficially owning, immediately prior to the sale or other
disposition, directly or indirectly, 20% or more of the outstanding
Stock or outstanding Voting Securities, as the care may be,
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the
corporation and the combined voting power of the then outstanding
voting securities of the corporation entitled to vote generally in the
election of directors and (z) at least a majority of the members of the
board of directors of the corporation were members of the Incumbent
Board at the time of the execution of the initial agreement or action
of the Board providing for that sale or other disposition of assets of
SCI.
-3-
1.6 "CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
1.7 "COMPANY" means SCI and any Subsidiary adopting the Plan.
1.8 "COMMITTEE" means the persons who are from time to time
serving as members of the committee administering this Plan.
1.9 "CREDITED SERVICE" means service with SCI and its
Subsidiaries for which the Participant is awarded credited service
under the SCI Pension Plan for benefit accrual purposes.
1.10 "ELIGIBLE EARNINGS" means for a given calendar year the
Participant's base salary plus overtime, bonuses and commissions paid
by the Company for the benefit of the Participant, excluding severance
pay, retainer fees, stock appreciation right payments, director's fees,
medical reimbursement payments, independent contractor fees, or
contributions other than elective deferrals to any deferred
compensation program. Eligible earnings will include salary deferral
contributions to a Section 401(k) Plan or a cafeteria plan described in
Section 125 of the Code maintained by the Company.
1.11 "EMPLOYEE" means a full time common law employee of the
Company who receives salary remuneration from the Company.
1.12 "PARTICIPANT" means an Employee of a Company who is
participating in the Plan or a former Employee of a Company whose
Retirement Benefit has not been completely distributed.
1.13 "PERSON" means any individual, entity or group within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Act,
excluding SCI and any employee benefit plan or related trust maintained
by SCI.
-4-
1.14 "PLAN" means the Service Corporation International
Supplemental Executive Retirement Plan set forth in this document, as
amended from time to time.
1.15 "PLAN YEAR" a one year period which coincides with
the fiscal year of SCI.
1.16 "PRIMARY SOCIAL SECURITY BENEFIT" means the amount
determined to be available at age 65 for a Participant as a monthly
benefit under the Federal Social Security Act or any similar federal
act or acts in effect at the time the offset is to be used, exclusive
of benefits for relatives or dependents, whether or not payment of the
amount is delayed, superseded or forfeited because of failure to apply
or for any other reason. All calculations will be based upon the pay
data which may be furnished the Companies and/or the Participant
concerned. Any pay for periods prior to the earliest data furnished
will be estimated by applying a salary scale factor projected backward
and the salary scale applied for this purpose is the actual change in
average wages from year to year as determined by the Federal Social
Security Administration. If a Participant separates from service with
all Companies before he is age 65, it will be assumed that he will
receive the, maximum primary insurance amount in effect under the
Federal Social Security Act on the date of his separation from service.
1.17 "RETIREMENT" means the Participant's separation from
service with all Companies.
1.18 "RETIREMENT BENEFIT" means the monthly benefit payable to
a qualifying Participant at Retirement, calculated under Section 3.1
and paid under Section 3.2.
1.19 "RETIREMENT DATE" means the date on which the Participant
has attained age 55 and has earned 10 years of Credited Service.
-5-
1.20 "SCI" means Service Corporation International, the
sponsor of this plan.
1.21 "SCI PENSION PLAN" means the SCI Pension Plan, a defined
benefit plan qualified under Section 401(a) of the Code, as it is
amended from time to time.
1.22 "SECURITIES ACT" means the Securities Exchange Act of
1934, as amended from time to time.
1.23 "STOCK" means the common stock of SCI.
1.24 "SUBSIDIARY" means any subsidiary of SCI that is in SCI's
controlled group of corporations as defined in Section 1563(a) of the
Code.
1.25 "VOTING SECURITIES" means any security of SCI which
ordinarily possesses the power to vote in the election of the Board of
Directors without the happening of any precondition or contingency.
-6-
ARTICLE II
ELIGIBILITY
Those Employees who are selected by the Committee will be
eligible to participate in the Plan. The Committee will select those
Employees who it believes are in a select group of officers, former
officers or other management personnel of the Company in a position to
contribute materially to the continued growth and financial success of
the Company. The Committee shall notify, each Employee selected as a
Participant in writing and supply him with a copy of this Plan.
-7-
ARTICLE III
RETIREMENT BENEFIT
3.1 CALCULATION OF RETIREMENT BENEFIT. Upon the later of the
Participant's Retirement Date or his Retirement, he will receive a
monthly benefit for 15 years equal to 3% of his Average Monthly
Compensation multiplied by his years of Credited Service (up to 20),
offset by the sum of the following benefits:
(a) the monthly benefit available to the Participant under the
SCI Pension Plan payable in the normal form under that plan at or
after the date Retirement Benefits commence,
(b) 50% of the monthly Primary Social Security Benefit
available to the Participant at or after the date Retirement
Benefits commence,
(c) any amount previously paid to the Participant under this
Plan as a result of a Change of Control, and
(d) the amount of any other supplemental retirement benefits
available to the Participant under any other nonqualified deferred
compensation arrangement between any of the Companies and the
Participant at or after the date Retirement Benefits commence.
In determining the amount of the offset resulting from a
Participant's benefit under the SCI Pension Plan, any contemporaneous
or prior distribution of a Participant's benefit under that plan,
including but not limited to a qualified domestic relations order
distribution, will be added back and any increase in benefits available
because of an increase in the limits of Section 415 of the Code or for
any other reason will be taken into account so as to lower the
Retirement Benefit. All offsets are to be computed as if the offsets
will begin being paid as of the date the Participant retires without
regard to whether the benefits have actually begun.
3.2 FORM AND TIME OF PAYMENT. The monthly Retirement Benefit
will begin on the first day of the month coincident with or next
following the Participant's
-8-
Retirement. The Participant will receive a Retirement Benefit under
this Plan for the lesser of 180 months or his lifetime. If he dies
before 180 payments have been made to him no further Retirement Benefit
shall be payable; instead his Beneficiary shall receive the death
benefit, if any, due under Article V.
-9-
ARTICLE IV
BENEFITS IN THE EVENT OF A CHANGE OF CONTROL
Notwithstanding any other provision of this Plan, if there is a Change
of Control of SCI, the Company shall pay to the Participant (or his Beneficiary
if the Participant has died) a lump sum cash payment equal to the Participant's
Accrued Benefit within five days of the date of the Change of Control.
-10-
ARTICLE V
DEATH BENEFIT
5.1 DEATH AFTER THE PARTICIPANT'S RETIREMENT DATE. If the Participant
dies on or after his Retirement Date but before he has been paid all of his
Retirement Benefit, his Beneficiary shall receive a commuted lump sum cash
payment of the Participant's Accrued Benefit.
5.2 DEATH BEFORE THE PARTICIPANT'S RETIREMENT DATE. If a Participant
who was an Employee of the Company on or after January 1, 1992, dies while in
the employ of a company but before his Retirement Date, his Beneficiary shall
receive a commuted lump sum cash payment of his Accrued Benefit.
5.3 BENEFICIARY DESIGNATION. Each Participant upon entering the Plan
shall file with the Committee a designation of one or more Beneficiaries to whom
the death benefit provided by this Article V shall be paid in the event of the
Participant's death. The designation will be effective upon receipt by the
Committee of a properly executed form which the Committee has approved for that
purpose. The Participant may from time to time revoke or change any designation
of Beneficiary by filing another approved Beneficiary designation form with the
Committee. If there is no valid designation of Beneficiary on file with the
Committee at the time of the Participant's death or if all of the Beneficiaries
designated in the last Beneficiary designation have predeceased the Participant
or otherwise cease to exist, the Beneficiary will be the Participant's spouse,
if the spouse survives the Participant, or otherwise the Participant's estate.
If any Beneficiary survives the Participant but dies or otherwise ceases to
exist before receiving all payments due under this Article V, the balance of the
payments, which would have been paid to that Beneficiary will, unless the
Participant's
-11-
designation provides otherwise, be distributed to the deceased individual
Beneficiary's estate or to the Participant's estate in the case of a Beneficiary
which is not an individual.
-12-
ARTICLE VI
PROVISIONS RELATING TO ALL BENEFITS
6.1 EFFECT OF THIS ARTICLE. The provisions of this Article will control
over all other provisions of this Plan.
6.2 BENEFITS UPON RE-EMPLOYMENT. If a former Participant who is
receiving benefit payments under this Plan is re-employed by the Company, the
payment of the benefit will continue during his period of re-employment. The
re-employed former Participant's benefit will not be changed as a result of his
reemployment.
6.3 CLAIMS PROCEDURE. When a benefit is due, the Member or Beneficiary
should submit his claim to the person or office designated by the Committee to
receive claims. Under normal circumstances, a final decision will be made as to
a claim within 90 days after receipt of the claim. If the Committee notifies the
claimant in writing during the initial 90 day period, It may extend the period
up to 180 days after the initial receipt of the claim. The written notice must
contain the circumstances necessitating the extension and the anticipated date
for the final decision. If a claim is denied during the claims period, the
Committee must notify the claimant in writing. The denial must include the
specific reasons for it, the Plan provisions upon which the denial is based, and
the claims review procedure. If no action is taken during the claims period,
the claim is treated as if it were denied on the last day of the claims period.
If a Participant's or Beneficiary's claim is denied and he wants a
review, he must apply to the Committee in writing. That application may include
any comment or argument the claimant wants to make. The claimant may either
represent himself
-13-
or appoint a representative, either of whom has the right to inspect
all documents pertaining to the claim and its denial. The Committee may
schedule any meeting with the claimant or his representative that it finds
necessary or appropriate to complete its review.
The request for review must be filed within 90 days after the denial.
If it is not, the denial becomes final. If a timely request is made, the
Committee must make its decision, under normal circumstances, within 60 days of
the receipt of the request for review. However, if the Committee notifies the
claimant prior to the expiration of the initial review period, it may extend
the period of review up to 120 days following the initial receipt of the request
for a review. All decisions of the Committee must be in writing and must include
the specific reasons for their action and the Plan provisions on which their
decision is based. If a decision is not given to the claimant within the review
period, the claim is treated as if it were denied on the last day of the review
period.
-14-
ARTICLE VII
ADMINISTRATION
7.1 COMMITTEE APPOINTMENT. The Committee will be the compensation
committee of SCI unless the Board of Directors appoints other individuals. Each
Committee member will serve until his or her resignation or removal. The Board
of Directors will have the sole discretion to remove any one or more Committee
members and appoint one or more replacement or additional Committee members from
time to time.
7.2 COMMITTEE ORGANIZATION AND VOTING. The Committee will select from
among its members a chairman who will preside at all of its meetings and will
elect a secretary without regard to whether that person is a member of the
Committee. The secretary will keep all records, documents and data pertaining to
the Committee's supervision and administration of this Plan. A majority of the
members of the Committee will constitute a quorum for the transaction of
business and the vote of a majority of the members present at any meeting will
decide any question brought before the meeting. In addition, the Committee may
decide any question by vote, taken without a meeting, of a majority of its
members. A member of the Committee who is also a Participant will not vote or
act on any matter relating solely to himself.
7.3 POWERS OF THE COMMITTEE. The Committee shall have the exclusive
responsibility for the general administration of this Plan according to the
terms and provisions of this Plan and shall have all powers necessary to
accomplish those purposes, including, but not by way of limitation, the right,
power and authority:
(a) to make rules and regulations for the administration of this Plan;
-15-
(b) to select all Participants in this Plan,
(c) to construe all terms, provisions, conditions and limitations of
this Plan;
(d) to correct any defect, supply any omission or reconcile any
inconsistency that may appear in this Plan in the manner and to the extent
it deems expedient to carry this Plan into effect for the greatest benefit
of all parties at interest;
(e) to determine all controversies relating to the administration of
this Plan, including but not limited to:
(1) differences of opinion arising between any Company and a
Participant except when the difference of opinion relates to the
entitlement to, the amount of or the method or timing of payment of a
benefit as a result of a Change of Control; and
(2) any question it deems advisable to determine in order to
promote the uniform administration of this Plan for the benefit of
all parties at interest; and
(f) to delegate by written notice those clerical and recordation
duties of the Committee, as it deems necessary or advisable for the proper
and efficient administration of this Plan.
7.4 COMMITTEE DISCRETION. The Committee in exercising any power or
authority granted under this Plan or in making any determination under this Plan
shall perform or refrain from performing those acts using its sole discretion
and judgment. Any decision made by the Committee or any refraining to act or
any act taken by the Committee in good faith shall be final and binding on all
parties. The Committee's decision shall never be subject to de novo review.
Notwithstanding the foregoing, the Committee's decisions, refraining to act or
acting is to be subject to judicial review for benefits resulting from a Change
of Control.
7.5 REIMBURSEMENT OF EXPENSES AND INDEMNIFICATION. The Committee will
serve without compensation for their services but will be reimbursed by SCI for
all expenses properly and actually incurred in the performance of their duties
under this
-16-
Plan. SCI shall indemnify the Committee members against, and hold the Committee
members harmless from, any and all loss, damage, penalty, liability, cost and
expense, including without limitation, attorneys' fees and disbursements, that
may be incurred by, imposed upon, or asserted against the Committee members by
reason of any claim, regulatory proceeding, or litigation arising from any act
done or omitted to be done by any member of the Committee with respect to the
Plan, excepting only losses, claims, damages, liabilities, costs and expenses
arising from the Committee member's bad faith or gross negligence. Each affected
member of the Committee shall promptly notify SCI of any claim, action or
proceeding for which he may seek indemnification. The indemnification of
Committee members provided for in this Section will survive the resignation or
removal of the Committee member and the termination of the Plan.
-17-
ARTICLE VIII
ADOPTION BY SUBSIDIARIES
8.1 PROCEDURE FOR AND STATUS AFTER ADOPTION. Any Subsidiary may, with
the approval of the Board of Directors, adopt this Plan by appropriate action of
its board of directors. SCI and each Subsidiary adopting this Plan will bear the
cost of providing plan benefits for its own Participants. It is intended that
the obligation of SCI and each Subsidiary with respect to its Participants will
be the sole obligation of the Company that is employing the Participant and will
not bind any other Company.
8.2 TERMINATION OF PARTICIPATION BY ADOPTING SUBSIDIARY. Any
Subsidiary adopting this Plan may, by appropriate action of its board of
directors, terminate its participation in this Plan. The Committee may, in its
discretion, also terminate a Subsidiary's participation in this Plan at any
time. The termination of the participation in this Plan by a Subsidiary will
not, however, affect the rights of any Participant who is working or has worked
for the Subsidiary as to benefits previously accrued by the Participant under
this Plan without his consent.
-18-
ARTICLE IX
AMENDMENT AND/OR TERMINATION
9.1 AMENDMENT OR TERMINATION OF THE PLAN. The Board of Directors may
amend or terminate this Plan at any time by an instrument in writing without
the consent of any adopting Company.
9.2 NO RETROACTIVE EFFECT ON ACCRUED BENEFITS. No amendment nor the
termination of this Plan shall affect the rights of any Participant to the
Retirement Benefit provided in Article III previously accrued by the Participant
or to the death benefit provided his Beneficiary in Article V if he completes
the requirements for the benefit or shall change a Participant's rights under
any provision relating to a Change of Control after a Change of Control has
occurred without his written consent.
-19-
ARTICLE X
FUNDING
10.1. PAYMENTS UNDER THIS PLAN ARE THE OBLIGATION OF THE COMPANY. The
Company will pay the benefits due the Participants under this Plan.
10.2 PLAN MAY BE FUNDED THROUGH A RABBI TRUST. It is specifically
recognized by both the Companies and the Participants that any one or more of
the Companies may, but are not required to, contribute any amount it or they
find desirable to a trust established to accumulate assets sufficient to fund
the obligations of any one or more of the Companies signatory to this Plan.
However, under all circumstances, the rights of the Participants to the assets
held in the trust will be no greater than the rights expressed in this
agreement. Nothing contained in any trust agreement which creates the funding
trust will constitute a guarantee by any Company that assets of the Company
transferred to the trust will be sufficient to pay any benefits under this Plan
or would place the Participant in a secured position ahead of general creditors
should the Company become insolvent or bankrupt. Any trust agreement prepared to
fund the Company's obligations under this Plan must specifically set out these
principles so it is clear in that trust agreement that the Participants in this
Plan are only unsecured general creditors of the Company in relation to their
benefits under this Plan.
10.3 PARTICIPANTS MUST RELY ONLY ON GENERAL CREDIT OF THE COMPANY. It
is also specifically recognized by both the Companies and the Participants that
this Plan is only a general corporate commitment and that each Participant must
rely upon the general credit of the Company by which he is employed for the
fulfillment of its obligations under this Plan. Under all circumstances the
rights of Participants to any asset held by the Company will be no greater than
the rights expressed in. this Plan.
-20-
Nothing contained in this Plan will constitute a guarantee by that Company that
the assets of the Company will be sufficient to pay any benefits under this Plan
or would place the Participant in a secured position ahead of general unsecured
creditors of the Company. Though the Company may establish or become a signatory
to a rabbi trust, as indicated in Section 10.2, to accumulate assets to fulfill
its obligations, the Plan and that trust will not create any lien, claim,
encumbrance, right, title or other interest of any kind in any Participant in
any asset held by the Company, contributed to the trust or otherwise designated
to be used for payment of any of its obligations created in this Plan. No
specific asset of the Company has been or will be set aside, or will in any way
be transferred to the trust or will be pledged in any way for the performance of
the Company's obligations under this Plan which would remove the asset from
being subject to the creditors of the Company.
-21-
ARTICLE XI
MISCELLANEOUS
11.1 RESPONSIBILITY FOR DISTRIBUTIONS AND WITHHOLDING OF TAXES. The
Committee will furnish information, to the Company last employing the
Participant, concerning the amount and form of distribution to any Participant
entitled to a distribution so that the Company may make or cause any rabbi trust
established to make the distribution required. It will also calculate the
deductions from the amount of the benefit paid under this Plan for any taxes
required to be withheld by federal, state or local government and will cause
them to be withheld. If a Participant has accrued a benefit under this Plan
while in the service of more than one Company, each Company for which the
Participant was working will reimburse the disbursing agent for the amount
attributable to the benefit earned while the Participant was in the Credited
Service of that Company if it has not already provided that funding to the
disbursing agent.
11.2 LIMITATION OF RIGHTS. Nothing in this Plan will be construed:
(a) to give a Participant any right with respect to any benefit except
in accordance with the terms of this Plan;
(b) to limit in any way the right of the Company to terminate a
Participant's employment with the Company at any time;
(c) to evidence any agreement or understanding, expressed or implied,
that the Company will employ a Participant in any particular position or
for any particular remuneration; or
(d) to give a Participant or any other person claiming through him any
interest or right under this Plan other than that of any unsecured general
creditor of the Company.
11.3 DISTRIBUTIONS TO INCOMPETENTS OR MINORS. Should a Participant
become incompetent or should a Participant designate a Beneficiary who is a
minor or
-22-
incompetent, the Committee is authorized to pay the funds due to the parent of
the minor or to the guardian of the minor or incompetent or to apply those funds
for the benefit of the minor or incompetent in any manner the Committee
determines in its sole discretion. The application of those funds under this
provision will relieve the Company of any further liability to the Participant
or his Beneficiary to the extent of the application of those funds.
11.4 NONALIENATION OF BENEFITS. No right or benefit provided in this
Plan will be transferable by the Participant except, upon his death, to a named
Beneficiary as provided in this Plan. No right or benefit under this Plan will
be subject to anticipation, alienation, sale, assignment, pledge, encumbrance or
charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber,
or charge the same will be void. No right or benefit under this Plan will in any
manner be liable for or subject to any debts, contracts, liabilities or torts of
the person entitled to the benefit. If any Participant or any Beneficiary
becomes bankrupt or attempts to anticipate, alienate, sell, assign, pledge,
encumber or charge any right or benefit under this Plan, that right or benefit
will, in the sole discretion of the Committee, cease. In that event, the
Committee may have the Company hold or apply the right or benefit or any part of
it to the benefit of the Participant or Beneficiary, his or her spouse, children
or other dependents or any of them in any manner and in any proportion the
Committee believes to be proper in its sole and absolute discretion, but is not
required to do so.
11.5 RELIANCE UPON INFORMATION. The Committee will not be liable for
any decision or action taken in good faith in connection with the administration
of this Plan. Without limiting the generality of the foregoing, any decision or
action taken by the Committee when it relies upon information supplied it by any
officer of the
-23-
Company, the Company's legal counsel, the Company's actuary, the Company's
independent accountants or other advisors in connection with the administration
of this Plan will be deemed to have been taken in good faith.
11.6 SEVERABILITY. If any term, provision, covenant or condition of
this Plan is held to be invalid, void or otherwise unenforceable, the REST OF
this Plan will remain in full force and effect and will in no way be affected,
impaired or invalidated.
11.7 SURVIVAL OF TERMS. The provisions of this Agreement will bind the
successors of the Company.
11.8 NOTICE. Any notice or filing required or permitted to be given to
the Committee or a Participant will be sufficient if in writing and hand
delivered or sent by U.S. mail to the principal office of the Company or to the
residential mailing address of the Participant. Notice will be deemed to be
given as of the date of hand delivery or if delivery is by mail, as of the date
shown on the postmark.
11.9 GENDER AND NUMBER. If the context requires it, words of one
gender when used in this Plan will include the other genders, and words used in
the singular or plural will include the other.
11.10 GOVERNING LAW. The Plan will be construed, administered and
governed in all respects by the laws of the State of Texas.
IN WITNESS WHEREOF, the Company has executed this document on this ___
day of ________, 199_, amending and restating the Plan effective as of January
1, 1992.
SERVICE CORPORATION INTERNATIONAL
By
------------------------------------------
-24-
EX-10.4
6
h91504ex10-4.txt
1ST AMEND. TO SUPP. EXEC. RETIREMENT PLAN
EXHIBIT 10.4
FIRST AMENDMENT
TO THE AMENDED AND RESTATED
SERVICE CORPORATION INTERNATIONAL
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
EFFECTIVE JANUARY 1, 2001
WHEREAS, Service Corporation International (the "Company") adopted the
Service Corporation International Supplemental Executive Retirement Plan (the
"SERP") for the benefit of certain eligible employees effective June 6, 1988;
WHEREAS, in section 9.1 of the SERP the Company reserved the right to amend
the SERP by action of its Board of Directors;
WHEREAS, the Board of Directors has determined that the SERP should be
amended to freeze benefit accruals effective as of January 1, 2001;
NOW THEREFORE, the SERP is hereby amended as follows:
1. Section 1.21 of the SERP shall be amended effective as of January 1, 1989
by adding the following sentence thereto:
"Any reference in Section 3.1(a) to the "SCI Pension Plan" shall be deemed
to include the SCI Cash Balance Plan and any predecessor or successor
thereto, as such plan is amended from time to time."
2. The SERP is amended to add a new section 3.3 to read as follows:
"3.3. FREEZE OF BENEFIT ACCRUALS EFFECTIVE JANUARY 1, 2001. Notwithstanding
the above or anything herein to the contrary, no additional benefits shall
accrue and no employees shall become eligible to participate in the Plan
after December 31, 2000. The Average Monthly Compensation and Credited
Service of any Participant as of December 31, 2000 shall be the Average
Monthly Compensation and Credited Service used to determine such
Participant's Retirement Benefit. Neither the amount of the offset set
forth in 3.1(a) through (d) above, the vesting service of any Participant,
nor any Participant's accrued Retirement Benefit as of December 31, 2000
shall be affected by this provision. This provision shall not be construed
as a termination of the Plan."
IN WITNESS WHEREOF, by authority of the Board of Directors, this amendment
is approved and adopted by the undersigned officer, and except as hereby amended
the SERP is hereby ratified and affirmed, this 8th day of November, 2000.
SERVICE CORPORATION INTERNATIONAL
By: /s/ JAMES M. SHELGER
-------------------------------
James M. Shelger
Senior Vice President/Secretary
(Seal)
EX-10.5
7
h91504ex10-5.txt
FORM OF CORRESPONDENCE - SENIOR OFFICERS
EXHIBIT 10.5
[LETTERHEAD OF SERVICE CORPORATION INTERNATIONAL]
________, 2001
[Participant's Name]
[Address 1]
[Address 2]
Re: Supplemental Executive Retirement Plan ("Senior SERP")
Dear [Participant's Name]:
Service Corporation International (the "Company" or "SCI") maintains
the Senior SERP to provide retirement benefits in the form of annual cash
payments (generally paid after retirement) to our eligible employees. We are
currently offering each participant vested in the Senior SERP the opportunity to
elect to receive a one-time distribution equal to the present value of all or
part of such participant's vested retirement benefits discounted at an annual
rate of 10%. Each such lump-sum distribution will be paid in shares of SCI
common stock, par value $1.00 per share (the "Common Stock"), and will be paid
in lieu of all or part of the annual cash payments to which a vested participant
in the Senior SERP would otherwise be entitled. To the extent that a participant
elects to receive a percent, but not all, of his or her vested retirement
benefits in Common Stock, such participant's remaining annual cash payments
under the Senior SERP will be reduced by such percent. The number of shares of
Common Stock to be issued and distributed to each participant so electing will
be calculated by dividing the amount of such participant's retirement benefit
which such participant elects to receive in Common Stock (discounted at an
annual rate of 10%) by the Distribution Price. The "Distribution Price" will be
the average closing price per share of the Common Stock on the New York Stock
Exchange for the five trading days (the "Pricing Period") immediately after
_______, 2001, which is the deadline for SERP participants to elect to receive
Common Stock.
The Company has arranged to deliver all shares of common stock
electronically to J.P. Morgan Securities Inc. ("JPMorgan") on behalf of each
participant, which will require that each participant already have an account
with JPMorgan or open an account at JPMorgan for these purposes. Information
concerning the opening of an account at JPMorgan is enclosed.
Through an agreement with JPMorgan, we have also arranged for each
Senior SERP participant electing to receive shares of Common Stock to be able to
sell all or some of such shares, at the Distribution Price per share, to
JPMorgan, on, and only on, the first business day after the Pricing Period (the
"Closing Date"). We will pay JPMorgan, on behalf of each such Senior SERP
participant, any commissions or other transaction costs due to JPMorgan in
connection with such sale. Thereafter, JPMorgan has agreed to sell the shares it
purchases from Senior SERP participants on the Closing Date into the market in
an orderly fashion. If the aggregate price at which such shares are sold into
the market by JPMorgan is less than the aggregate amount paid by JPMorgan to
participants electing to sell shares of Common Stock to
JPMorgan as set forth above (the "Aggregate Distribution Price"), we have agreed
to pay JPMorgan in cash the amount of such difference. To the extent the
proceeds of the sale of shares of Common Stock by JPMorgan into the market
exceeds the Aggregate Distribution Price, we will receive the excess proceeds.
Other than any such excess proceeds, we will not receive any proceeds from the
issuance and distribution of shares of Common Stock to our employees and former
employees. Regardless of the prices at which JPMorgan sells shares of Common
Stock into the market, each Senior SERP participant selling shares of Common
Stock to JPMorgan will receive the Distribution Price per share. Participants
receiving shares who elect not to sell shares to JPMorgan will be subject to
fluctuating market values for our Common Stock at such time or times as the
participants determine to sell shares.
Each distribution of Common Stock in accordance with the terms hereof
will create a withholding tax liability for SCI equal to the 28% federal income
tax rate plus any state or other taxes that may be applicable for the particular
Senior SERP participant. Accordingly, Senior SERP participants who elect to
receive shares of Common Stock in lieu of future cash payments will be required
(1) to pay SCI on or prior to the Election Deadline (as defined below), the
amount of the withholding tax liability via cashier's check, certified check or
wire transfer or (2) to elect to sell to JPMorgan a sufficient number of shares
Common Stock at the Distribution Price to generate proceeds at least equal to
the withholding tax liability and to authorize JPMorgan to deliver directly to
SCI proceeds from such sale equal to the participant's withholding tax
liability. In addition, SCI's payment of commissions or other transaction costs
to JPMorgan on behalf of those Senior SERP participants who elect to sell shares
to JPMorgan will create an additional withholding tax liability for SCI. For the
sake of convenience, SCI will contact those Senior SERP participants electing to
sell shares to JPMorgan after the Election Deadline to make arrangements for
such participants to satisfy that withholding tax liability.
Enclosed herewith are (1) a Participant Settlement Agreement, which you
can use to make the elections described above, (2) a copy of the Prospectus
filed with the Securities and Exchange Commission, effective as of
_____________, which registers the shares of Common Stock to be issued to Senior
SERP participants electing to participate in this program, and (3) information
concerning the opening of an account at JPMorgan. BEFORE ELECTING TO RECEIVE OR
SELL ANY SHARES OF COMMON STOCK, YOU ARE URGED TO CAREFULLY REVIEW AND CONSIDER
THE TERMS OF THE OFFERING AS DISCLOSED IN THIS LETTER AND THE ENCLOSED
MATERIALS. You will have until 5:00 p.m. Houston, Texas time, on ________, 2001
(the "Election Deadline") to decide to make any or all of the elections
described above by completing, signing and returning to the Company the
Participant Settlement Agreement, along with any required withholding tax
payment. To the extent that a vested Senior SERP participant fails to submit a
properly completed Participant Settlement Agreement, along with any required
withholding tax payment, by the Election Deadline, such participant will be
deemed to have elected not to participate in this offering.
We urge you to review this letter and the materials enclosed herewith
and respond promptly. Representatives of the Company are available to you for
any questions you may have concerning the terms and conditions of this offering.
Please direct any such inquiries to Helen Dugand (713-525-5373). In addition,
the Company will hold a meeting to discuss and answer any questions about this
offering on _________, 2001, at the offices of Locke Liddell & Sapp LLP, 3200
Chase Tower, 600 Travis Street, Houston, Texas 77002. THE COMPANY RESERVES THE
RIGHT TO CANCEL THIS OFFERING AT ANY TIME PRIOR TO THE CLOSING DATE IF THE
COMPANY DETERMINES, IN ITS SOLE DISCRETION, THAT THE OFFERING IS NOT IN THE BEST
INTERESTS OF THE COMPANY AND ITS SHAREHOLDERS.
Very truly yours,
R.L. Waltrip
Chairman of the Board and
Chief Executive Officer
RLW:
Enclosures
2
EX-10.6
8
h91504ex10-6.txt
FORM OF PARTICIPANT SETTLEMENT AGREEMENT
EXHIBIT 10.6
PARTICIPANT SETTLEMENT AGREEMENT
SERVICE CORPORATION INTERNATIONAL
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN FOR SENIOR OFFICERS
__________, 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 J.P. MORGAN
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 J.P. Morgan 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 J.P.
Morgan 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 J.P. Morgan 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 J.P.
Morgan Securities Inc. as evidenced hereby is irrevocable and constitutes a
binding agreement of the Company, the Participant and J.P. Morgan 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
================================================================================
[ ] 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 J.P. Morgan Securities Inc. or (ii) to
maintain a pre-existing account at J.P. Morgan 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 J.P. Morgan Securities Inc. on
behalf of the Participant to be placed in the Participant's account. If the
Participant already maintains an account at J.P. Morgan 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.
-------------------------
Participant's Signature
================================================================================
2
================================================================================
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 #1130-0060-9, CREDIT: SCI
MANAGEMENT LP, ACCOUNT #0010-126-6337. (SCI MUST RECEIVE
ANY SUCH WIRE TRANSFER PRIOR TO THE ELECTION DEADLINE.)
[ ] PURSUANT TO THE ELECTION IN FORM 3, AUTHORIZE J.P.
MORGAN 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
$____________.
-----------------------
Participant's Signature
================================================================================
3
================================================================================
[ ] 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 J.P. MORGAN
SECURITIES INC. For value received, the Participant hereby irrevocably elects to
sell to J.P. Morgan 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
J.P. Morgan 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
J.P. Morgan 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 J.P. Morgan 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 J.P. Morgan Securities Inc., as set forth above, the Participant hereby
makes to J.P. Morgan Securities Inc. and SCI the representations and warranties
set forth in Schedule A attached hereto, each of which is hereby incorporated
herein by reference.
-----------------------
Participant's Signature
================================================================================
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 for Senior Officers (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:
----------------------------
Date: , 2001
--------------
Address:
------------------------
Phone:
-------------------------
E-mail:
------------------------
*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 J.P. Morgan Securities
Inc. hereby accepts and acknowledges the Participant's elections as described
above.
SERVICE CORPORATION INTERNATIONAL
By:
----------------------------
James M. Shelger
Senior Vice President,
General Counsel
and Secretary
J.P. MORGAN SECURITIES INC.
By:
----------------------------
Perry Bartol
Managing Director
5
SCHEDULE A
The Participant represents and warrants to J.P. Morgan 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 J.P. Morgan Securities
Inc.
EX-10.7
9
h91504ex10-7.txt
FORM OF CORRESPONDENCE - SUPP. EXEC. RET. PLAN
EXHIBIT 10.7
[LETTERHEAD OF SERVICE CORPORATION INTERNATIONAL]
________, 2001
[Participant's Name]
[Address 1]
[Address 2]
Re: Supplemental Executive Retirement Plan ("SERP")
Dear [Participant's Name]:
Service Corporation International (the "Company" or "SCI") maintains
the SERP to provide retirement benefits in the form of annual cash payments
(generally paid after retirement) to our eligible employees. We are currently
offering each participant vested in the SERP the opportunity to elect to receive
a one-time distribution equal to the present value of all or part of such
participant's vested retirement benefits discounted at an annual rate of 10%.
Each such lump-sum distribution will be paid in shares of SCI common stock, par
value $1.00 per share (the "Common Stock"), and will be paid in lieu of all or
part of the annual cash payments to which a vested participant in the SERP would
otherwise be entitled. To the extent that a participant elects to receive a
percent, but not all, of his or her vested retirement benefits in Common Stock,
such participant's remaining annual cash payments under the SERP will be
reduced by such percent. The number of shares of Common Stock to be issued and
distributed to each participant so electing will be calculated by dividing the
amount of such participant's retirement benefit which such participant elects to
receive in Common Stock (discounted at an annual rate of 10%) by the
Distribution Price. The "Distribution Price" will be the average closing price
per share of the Common Stock on the New York Stock Exchange for the five
trading days (the "Pricing Period") immediately after _______, 2001, which is
the deadline for SERP participants to elect to receive Common Stock.
The Company has arranged to deliver all shares of common stock
electronically to J.P. Morgan Securities Inc. ("JPMorgan") on behalf of each
participant, which will require that each participant already have an account
with JPMorgan or open an account at JPMorgan for these purposes. Information
concerning the opening of an account at JPMorgan is enclosed.
Through an agreement with JPMorgan, we have also arranged for each SERP
participant electing to receive shares of Common Stock to be able to sell all or
some of such shares, at the Distribution Price per share, to JPMorgan, on, and
only on, the first business day after the Pricing Period (the "Closing Date").
We will pay JPMorgan, on behalf of each such SERP participant, any commissions
or other transaction costs due to JPMorgan in connection with such sale.
Thereafter, JPMorgan has agreed to sell the shares it purchases from SERP
participants on the Closing Date into the market in an orderly fashion. If the
aggregate price at which such shares are sold into the market by JPMorgan is
less than the aggregate amount paid by JPMorgan to participants electing to sell
shares of Common Stock to JPMorgan as set forth above (the
"Aggregate Distribution Price"), we have agreed to pay JPMorgan in cash the
amount of such difference. To the extent the proceeds of the sale of shares of
Common Stock by JPMorgan into the market exceeds the Aggregate Distribution
Price, we will receive the excess proceeds. Other than any such excess proceeds,
we will not receive any proceeds from the issuance and distribution of shares of
Common Stock to our employees and former employees. Regardless of the prices at
which JPMorgan sells shares of Common Stock into the market, each SERP
participant selling shares of Common Stock to JPMorgan will receive the
Distribution Price per share. Participants receiving shares who elect not to
sell shares to JPMorgan will be subject to fluctuating market values for our
Common Stock at such time or times as the participants determine to sell shares.
Each distribution of Common Stock in accordance with the terms hereof
will create a withholding tax liability for SCI equal to the 28% federal income
tax rate plus any state or other taxes that may be applicable for the particular
SERP participant. Accordingly, SERP participants who elect to receive shares of
Common Stock in lieu of future cash payments will be required (1) to pay SCI on
or prior to the Election Deadline (as defined below), the amount of the
withholding tax liability via cashier's check, certified check or wire transfer
or (2) to elect to sell to JPMorgan a sufficient number of shares Common Stock
at the Distribution Price to generate proceeds at least equal to the withholding
tax liability and to authorize JPMorgan to deliver directly to SCI proceeds from
such sale equal to the participant's withholding tax liability. In addition,
SCI's payment of commissions or other transaction costs to JPMorgan on behalf of
those SERP participants who elect to sell shares to JPMorgan will create an
additional withholding tax liability for SCI. For the sake of convenience, SCI
will contact those SERP participants electing to sell shares to JPMorgan after
the Election Deadline to make arrangements for such participants to satisfy that
withholding tax liability.
Enclosed herewith are (1) a Participant Settlement Agreement, which you
can use to make the elections described above, (2) a copy of the Prospectus
filed with the Securities and Exchange Commission, effective as of
_____________, which registers the shares of Common Stock to be issued to SERP
participants electing to participate in this program, and (3) information
concerning the opening of an account at JPMorgan. BEFORE ELECTING TO RECEIVE OR
SELL ANY SHARES OF COMMON STOCK, YOU ARE URGED TO CAREFULLY REVIEW AND CONSIDER
THE TERMS OF THE OFFERING AS DISCLOSED IN THIS LETTER AND THE ENCLOSED
MATERIALS. You will have until 5:00 p.m. Houston, Texas time, on ________, 2001
(the "Election Deadline") to decide to make any or all of the elections
described above by completing, signing and returning to the Company the
Participant Settlement Agreement, along with any required withholding tax
payment. To the extent that a vested SERP participant fails to submit a properly
completed Participant Settlement Agreement, along with any required withholding
tax payment, by the Election Deadline, such participant will be deemed to have
elected not to participate in this offering.
We urge you to review this letter and the materials enclosed herewith
and respond promptly. Representatives of the Company are available to you for
any questions you may have concerning the terms and conditions of this offering.
Please direct any such inquiries to Helen Dugand (713-525-5373). In addition,
the Company will hold a meeting to discuss and answer any questions about this
offering on _________, 2001, at the offices of Locke Liddell & Sapp LLP, 3200
Chase Tower, 600 Travis Street, Houston, Texas 77002. THE COMPANY RESERVES THE
RIGHT TO CANCEL THIS OFFERING AT ANY TIME PRIOR TO THE CLOSING DATE IF THE
COMPANY DETERMINES, IN ITS SOLE DISCRETION, THAT THE OFFERING IS NOT IN THE BEST
INTERESTS OF THE COMPANY AND ITS SHAREHOLDERS.
Very truly yours,
R.L. Waltrip
Chairman of the Board and
Chief Executive Officer
RLW:
Enclosures
2
EX-10.8
10
h91504ex10-8.txt
FORM OF PARTICIPANT SETTLEMENT AGREEMENT
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 J.P. MORGAN
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 J.P. Morgan 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 J.P.
Morgan 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 J.P. Morgan 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 J.P.
Morgan Securities Inc. as evidenced hereby is irrevocable and constitutes a
binding agreement of the Company, the Participant and J.P. Morgan 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
================================================================================
[ ] 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 J.P. Morgan Securities Inc. or (ii) to
maintain a pre-existing account at J.P. Morgan 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 J.P. Morgan Securities
Inc. on behalf of the Participant to be placed in the Participant's account. If
the Participant already maintains an account at J.P. Morgan 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.
-------------------------
Participant's Signature
================================================================================
2
================================================================================
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 #1130-0060-9, CREDIT: SCI
MANAGEMENT LP, ACCOUNT #0010-126-6337. (SCI MUST
RECEIVE ANY SUCH WIRE TRANSFER PRIOR TO THE ELECTION
DEADLINE).
[ ] PURSUANT TO THE ELECTION IN FORM 3, AUTHORIZE J.P.
MORGAN 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
$____________.
-----------------------
Participant's Signature
================================================================================
3
================================================================================
[ ] 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 J.P. MORGAN
SECURITIES INC. For value received, the Participant hereby irrevocably elects to
sell to J.P. Morgan 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
J.P. Morgan 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
J.P. Morgan 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 J.P. Morgan 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 J.P. Morgan Securities Inc., as set forth above, the Participant hereby
makes to J.P. Morgan Securities Inc. and SCI the representations and warranties
set forth in Schedule A attached hereto, each of which is hereby incorporated
herein by reference.
-----------------------
Participant's Signature
================================================================================
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:
----------------------------
Date: , 2001
--------------
Address:
------------------------
Phone:
-------------------------
E-mail:
------------------------
*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 J.P. Morgan Securities
Inc. hereby accepts and acknowledges the Participant's elections as described
above.
SERVICE CORPORATION INTERNATIONAL
By:
----------------------------
James M. Shelger
Senior Vice President,
General Counsel
and Secretary
J.P. MORGAN SECURITIES INC.
By:
----------------------------
Perry Bartol
Managing Director
5
SCHEDULE A
The Participant represents and warrants to J.P. Morgan 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 J.P. Morgan Securities
Inc.
EX-23.2
11
h91504ex23-2.txt
CONSENT OF PRICEWATERHOUSECOOPERS LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated March 29, 2001 relating
to the consolidated financial statements and financial statement schedule, which
appears in Service Corporation International's Annual Report on Form 10-K for
the year ended December 31, 2000. We also consent to the reference to us under
the heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
Houston, Texas
October 24, 2001
EX-24.1
12
h91504ex24-1.txt
POWERS OF ATTORNEY
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ R. L. Waltrip
-----------------------------------------
R. L. Waltrip
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ Jeffrey E. Curtiss
--------------------------------------------
Jeffrey E. Curtiss
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ W. Cardon Gerner
-------------------------------------------
W. Cardon Gerner
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ Anthony L. Coelho
------------------------------------------
Anthony L. Coelho
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ Jack Finkelstein
------------------------------------------
Jack Finkelstein
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ A. J. Foyt, Jr.
--------------------------------------------
A. J. Foyt, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ James H. Greer
-------------------------------------------
James H. Greer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ B. D. Hunter
-------------------------------------------
B. D. Hunter
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ Victor L. Lund
------------------------------------------
Victor L. Lund
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ John W. Mecom, Jr.
-----------------------------------------
John W. Mecom, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ Clifton H. Morris
----------------------------------------
Clifton H. Morris, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ E. H. Thornton, Jr.
-----------------------------------------
E. H. Thornton, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ W. Blair Waltrip
------------------------------------------
W. Blair Waltrip
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an
officer or director, or both, of Service Corporation International, a Texas
corporation (the "Company"), does hereby constitute and appoint Jeffrey E.
Curtiss and James M. Shelger his true and lawful attorneys and agents (each with
authority to act alone), to do any and all acts and things and to execute any
and all instruments which said attorneys and agents deem necessary or advisable:
(i) to enable the Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
said Securities Act of the offering, sale and delivery of certain securities of
said corporation as set forth below (the "Securities"), including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for and on behalf of the undersigned the name of the undersigned as officer
or director, or both, of the Company to Registration Statements or to any
amendments (including post-effective amendments) thereto filed with the
Securities and Exchange Commission in respect of said Securities, and to any
instrument or document filed as part of, as an exhibit to or in connection with
said Registration Statements or amendments; and (ii) to register or qualify said
Securities for sale and to register or license the Company as a broker or dealer
in said Securities under the securities or Blue Sky laws of all such States as
may be necessary or appropriate to permit therein the offering and sale of said
Securities as contemplated by said Registration Statements, including
specifically, without limitation, the power and authority to sign for and on
behalf of the undersigned the name of the undersigned as officer or director, or
both, of the Company to any application, statement, petition, prospectus, notice
or other instrument or document, or to any amendment thereto, or to any exhibit
filed as a part thereof or in connection therewith, which is required to be
signed by the undersigned and to be filed with the public authority or
authorities administering said Securities or Blue Sky laws for the purpose of so
registering or qualifying said Securities or registering or licensing the
Company, and the undersigned does hereby ratify and confirm as his own act and
deed all that said attorney and agent shall do or cause to be done by virtue
hereof.
The Securities of the Company covered by this power of
attorney are:
(i) Common Stock, par value $1.00 per share ("Common Stock"),
of the Company and the related Series D Junior Participating Preferred Stock
Rights ("Rights"), including without limitation Common Stock of the Company
which may be issued in connection with retirement plans of the Company; and
(ii) Common Stock (including any associated Rights) held or
offered by participants or former participants in retirement plans of the
Company.
IN WITNESS WHEREOF, the undersigned has subscribed these
presents this 10th day of May, 2001.
/s/ Edward E. Williams
------------------------------------------
Edward E. Williams