exv10w1



 





Exhibit 10.1




INDEMNIFICATION AGREEMENT




     THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into
as of                , 2004, by and between Service Corporation International, a
Texas corporation (the “Company”), and                (the “Indemnitee”).



BACKGROUND




     The Indemnitee is an officer and/or director of the Company. It is
essential to the Company that it retain and attract as officers and/or
directors the most capable persons available. Both the Company and the
Indemnitee recognize the increased risk of litigation and other claims being
asserted against officers and/or directors of companies in today’s environment.



     The Texas Business Corporation Act, as amended (the “Texas Statute”),
expressly recognizes that the indemnification provisions of the Texas Statute
are not exclusive of any other rights to which a person seeking indemnification
may be entitled under a resolution of the directors, an agreement or as
permitted or required by common law. This Agreement is being entered into as
permitted by the Texas Statute and as authorized by the board of directors of
the Company (the “Board of Directors”).



     In recognition of the Indemnitee’s need for substantial protection against
personal liability, in order to enhance the Indemnitee’s continued service to
the Company in an effective manner, and in part to provide the Indemnitee with
specific contractual assurance that the protection of the Texas Statute, the
Company’s articles of incorporation and bylaws and this Agreement will be
available to the Indemnitee (regardless of, among other things, any amendment
to or revocation of such provisions or any change in the composition of the
Board of Directors or any acquisition or business combination transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of, and the advancement of expenses to, the Indemnitee as
set forth in this Agreement.



     NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



     1. Indemnification.



        (a) In accordance with the provisions of Section 1(b), the Company shall
hold harmless and indemnify the Indemnitee against any and all expenses,
liabilities and losses (including, without limitation, investigation expenses
and expert witnesses’ and attorneys’ fees and expenses, judgments, penalties,
fines, excise taxes under the Employee Retirement Income Security Act of 1974,
as amended, and amounts paid or to be paid in settlement) actually incurred by
the Indemnitee (net of any related insurance proceeds or other amounts received
by the Indemnitee or paid by or on behalf of the Company on the Indemnitee’s
behalf), in connection with any action, suit, arbitration or proceeding (or any
inquiry or investigation, whether brought by or in the right of the Company or
otherwise, that the Indemnitee in good faith believes might lead to the
institution of any such action, suit, arbitration or proceeding), whether
civil, criminal, administrative or investigative, or any appeal therefrom, in
which the



 









 






Indemnitee is a party, is threatened to be made a party, is a witness or
is participating (each, a “Proceeding”) based upon, arising from, relating to
or by reason of the fact that Indemnitee is, was, shall be or shall have been
an officer and/or director of the Company or is or was serving, shall serve, or
shall have served at the request of the Company as an officer and/or director
(an “Affiliate Indemnitee”) of another foreign or domestic corporation or
nonprofit corporation, cooperative, partnership, limited liability company,
joint venture, trust or other incorporated or unincorporated enterprise.



        (b) In providing the foregoing indemnification, the Company shall, with
respect to a Proceeding, hold harmless and indemnify the Indemnitee to the
fullest extent permitted by the Texas Statute or by any amendment thereof or
other statutory provisions expressly permitting such indemnification which is
adopted after the date hereof (but, in the case of any such amendment, only to
the extent that such amendment permits the Company to provide broader
indemnification rights than said law required or permitted the Company to
provide prior to such amendment).



        (c) Without limiting the generality of the foregoing, the Indemnitee shall
be entitled to the rights of indemnification provided in this Section 1 for any
expenses actually incurred in any Proceeding initiated by or in the right of
the Company, provided that in the event that the Indemnitee shall have been
adjudged in a final, nonappealable judgment or other final adjudication to be
liable to the Company or shall have been adjudged liable on the basis that
personal benefit was improperly received by the Indemnitee, indemnification (i)
shall be limited to reasonable expenses actually incurred by the Indemnitee in
connection with the Proceeding, and (ii) shall not be made in respect of any
Proceeding in which the Indemnitee shall have been found liable for willful or
intentional misconduct in the performance of his duty to the Company.



        (d) If the Indemnitee is entitled under this Agreement to indemnification
by the Company for some or a portion of the Indemnified Amounts (as hereinafter
defined) but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify the Indemnitee for the portion thereof to which
the Indemnitee is entitled.



        (e) The Company will indemnify the Indemnitee’s spouse to whom the
Indemnitee is legally married at any time the Indemnitee is covered under the
indemnification provided in this Agreement (even if the Indemnitee did not
remain married to him or her during the entire period of coverage) in any
Proceeding, to the same extent and subject to the same standards, limitations,
obligations and conditions under which the Indemnitee is provided
indemnification herein, if the Indemnitee’s spouse (or former spouse) becomes
involved in a Proceeding solely by reason of his or her status as the
Indemnitee’s spouse, including, without limitation, any Proceeding that seeks
damages recoverable from marital community property, jointly-owned property or
property purported to have been transferred from the Indemnitee to his/her
spouse (or former spouse). The Indemnitee’s spouse or former spouse also may be
entitled to receive Advanced Amounts (as hereinafter defined) to the same
extent that the Indemnitee is entitled to Advanced Amounts herein. The Company
may maintain insurance to cover its obligation hereunder with respect to the
Indemnitee’s spouse (or former spouse) or set aside assets in a trust or escrow
funds for that purpose. Any spouse or former spouse of the



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Indemnitee entitled to indemnification under this Section 1(e) is an
intended third party beneficiary of this Agreement.



     2. Other Indemnification Arrangements. The Texas Statute permits the
Company to purchase and maintain insurance or furnish similar protection or
make other arrangements, including, without limitation, securing
indemnification obligations by granting a security interest or other lien on
the assets of the Company and providing self insurance, a letter of credit,
guaranty or surety bond (collectively, the “Indemnity Arrangements”) on behalf
of the Indemnitee against any liability asserted against him or incurred by or
on behalf of him in such capacity as an officer and/or director of the Company
or as an Affiliate Indemnitee, or arising out of his status as such, whether or
not the Company would have the power to indemnify him against such liability
under the provisions of this Agreement or under the Texas Statute, as it may
then be in effect. The purchase, establishment and maintenance of any such
Indemnity Arrangement shall not in any way limit or affect the rights and
obligations of the Company or of the Indemnitee under this Agreement except as
expressly provided herein, and the execution and delivery of this Agreement by
the Company and the Indemnitee shall not in any way limit or affect the rights
and obligations of the Company or the other party or parties thereto under any
such Indemnity Arrangement. All amounts payable by the Company pursuant to this
Section 2 and Section 1 hereof, including the Advanced Amounts (as defined
below), are herein referred to as “Indemnified Amounts.”



     3. Advance Payment of Indemnified Amounts.



        (a) The Indemnitee hereby is granted the right to receive promptly in
advance of a final, nonappealable judgment or other final adjudication of a
Proceeding (a “Final Determination”) the amount of any and all expenses,
including, without limitation, investigation expenses, expert witness’ and
attorneys’ fees and other expenses expended or incurred by the Indemnitee in
connection with any Proceeding or otherwise expended or incurred by the
Indemnitee (such amounts so expended or incurred being referred to as “Advanced
Amounts”).



        (b) In making any written request for the Advanced Amounts, the Indemnitee
shall submit to the Company a schedule setting forth in reasonable detail the
dollar amount expended or incurred and expected to be expended. Each such
listing shall be supported by the bill, agreement or other documentation
relating thereto, each of which shall be appended to the schedule as an
exhibit. In addition, before the Indemnitee may receive Advanced Amounts from
the Company, the Indemnitee shall provide to the Company (i) a written
affirmation of the Indemnitee’s good faith belief that the applicable standard
of conduct required for indemnification by the Company has been satisfied by
the Indemnitee, and (ii) a written undertaking by or on behalf of the
Indemnitee to repay the Advanced Amounts if it shall ultimately be determined
that the Indemnitee has not satisfied any applicable standard of conduct. The
written undertaking required from the Indemnitee shall be an unlimited general
obligation of the Indemnitee, but need not be secured. The Company shall pay to
the Indemnitee all Advanced Amounts within ten business days after receipt by
the Company of all information and documentation required to be provided by the
Indemnitee pursuant to this Section 3(b).



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     4. Procedure for Payment of Indemnified Amounts.



        (a) To obtain indemnification under this Agreement, the Indemnitee shall
submit to the Company a written request for payment of the appropriate
Indemnified Amounts, including with such request such documentation and
information as are reasonably available to the Indemnitee and reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Reviewing Party (as defined in
Section (4(f)) in writing that the Indemnitee has requested indemnification.



        (b) The Company shall pay the Indemnitee the appropriate Indemnified
Amounts, unless it is established by the Reviewing Party that the Indemnitee
has not met any applicable standard of conduct of the Texas Statute. For
purposes of determining whether the Indemnitee is entitled to Indemnified
Amounts, Indemnitee shall be presumed to be entitled to indemnification under
this Agreement, and in order to deny indemnification to the Indemnitee, the
Company shall have the burden of proof in establishing that the Indemnitee did
not meet the applicable standard of conduct. In this regard, a termination of
any Proceeding by judgment, order, settlement, conviction, pleading of nolo
contendere or its equivalent, or an entry of an order of probation prior to
judgment, shall not create a presumption that the Indemnitee did not meet the
requisite standard of conduct.



        (c) Any determination that the Indemnitee has not met the applicable
standard of conduct required to qualify for indemnification shall be made by
the Reviewing Party.



        (d) The Reviewing Party will use its best efforts to conclude as soon as
practicable any required determination pursuant to Section 4(c) and will
promptly advise the Indemnitee in writing with respect to any determination
that the Indemnitee is or is not entitled to indemnification, including a
description of any reason or basis for which indemnification has been denied.
Payment of any applicable Indemnified Amounts will be made to the Indemnitee
within ten business days after any determination of the Indemnitee’s
entitlement to indemnification.



        (e) Notwithstanding the foregoing, the Indemnitee may, at any time after
60 days after a claim for Indemnified Amounts has been filed with the Company
(or upon receipt of written notice that a claim for Indemnified Amounts has
been rejected, if earlier) and prior to the expiration of three years after a
claim for Indemnified Amounts has been filed, petition a court of competent
jurisdiction and obtain formal adjudication of whether the Indemnitee is
entitled to indemnification under the provisions of this Agreement, and such
court shall thereupon have the exclusive authority to make such determination
unless and until such court dismisses or otherwise terminates such action
without having made such determination. The court shall, as petitioned, make an
independent determination of whether the Indemnitee is entitled to
indemnification as provided under this Agreement, irrespective of any prior
determination made by the Reviewing Party. If the court shall determine that
the Indemnitee is entitled to indemnification as to any claim, issue or matter
involved in the Proceeding with respect to which there has been no prior
determination pursuant to this Agreement or with respect to which there has
been a prior determination that the Indemnitee was not entitled to



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indemnification hereunder, the Company shall pay all expenses (including
reasonable attorneys’ fees) actually incurred by the Indemnitee in connection
with such judicial determination.



        (f) If there has not been a Change in Control (as defined in Section
4(g)), the “Reviewing Party” shall be selected by the Board of Directors in
accordance with the Texas Statute and the Company’s bylaws, and if there has
been a Change in Control (other than a Change in Control which has been
approved by a vote of at least two-thirds (2/3) of the Company’s Board of
Directors who were directors immediately prior to such Change in Control), any
Reviewing Party with respect to all matters thereafter arising concerning the
rights of Indemnitee to indemnification under this Agreement or any other
agreement or under the Company’s Articles of Incorporation or Bylaws as now or
hereafter in effect, or under any other applicable law, if desired by
Indemnitee, shall be independent legal counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld).
Such counsel, among other things, shall render its written opinion to the
Company and Indemnitee as to whether and to what extent Indemnitee would be
entitled to be indemnified hereunder under applicable law and the Company
agrees to abide by such opinion. The Company agrees to pay the reasonable fees
of the independent legal counsel referred to above and to indemnify fully such
counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto. Notwithstanding any other provision of this
Agreement, the Company shall not be required to pay expenses of more than one
independent legal counsel in connection with all matters concerning a single
Indemnitee, and such independent legal counsel shall be the independent legal
counsel for any or all other Indemnitees unless (i) the employment of separate
counsel by one or more Indemnitees has been previously authorized by the
Company in writing, or (ii) an Indemnitee shall have provided to the Company a
written statement that such Indemnitee has reasonably concluded that there may
be a conflict of interest between such Indemnitee and the other Indemnitees
with respect to the matters arising under this Agreement.



        (g) “Change in Control” shall mean, and shall be deemed to have occurred
if, on or after the date of this Agreement, (i) any “person” (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company acting in such capacity or a corporation
owned directly or indirectly by the shareholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing more than 20%
of the total voting power represented by the Company’s then outstanding voting
securities, (ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or nomination for
election by the Company’s shareholders was approved by a vote of at least two
thirds (2/3) of the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof,
(iii) the shareholders of the Company approve a merger or consolidation of the
Company with any other corporation other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least 80% of
the total voting power represented by



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the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (iv) the shareholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series
of related transactions) all or substantially all of the Company’s assets.



     5. Agreement Not Exclusive; Subrogation Rights, etc.



        (a) This Agreement shall not be deemed exclusive of and shall not diminish
any other rights that the Indemnitee may have to be indemnified or insured or
otherwise protected against any liability, loss or expense by the Company, any
subsidiary of the Company or any other person or entity under any charter,
bylaws, law, agreement, policy of insurance or similar protection, vote of
shareholders or directors, disinterested or not, or otherwise, whether or not
now in effect, both as to actions in the Indemnitee’s official capacity, and as
to actions in another capacity while holding such office. The Company’s
obligations to make payments of Indemnified Amounts hereunder shall be
satisfied to the extent that payments with respect to the same Proceeding (or
part thereof) have been made to or for the benefit of the Indemnitee by reason
of the indemnification of the Indemnitee pursuant to any other arrangement made
by the Company for the benefit of the Indemnitee.



        (b) In the event the Indemnitee shall receive payment from any insurance
carrier or from the plaintiff in any Proceeding against the Indemnitee in
respect of Indemnified Amounts after payments on account of all or part of such
Indemnified Amounts have been made by the Company pursuant hereto, the
Indemnitee shall promptly reimburse to the Company the amount, if any, by which
the sum of such payment by such insurance carrier or such plaintiff and
payments by the Company or pursuant to arrangements made by the Company to the
Indemnitee exceeds such Indemnified Amounts; provided, however, that such
portions, if any, of such insurance proceeds that are required to be reimbursed
to the insurance carrier under the terms of its insurance policy, such as
deductible or coinsurance payments, shall not be deemed to be payments to the
Indemnitee hereunder. In addition, upon payment of Indemnified Amounts
hereunder, the Company shall be subrogated to the rights of the Indemnitee
receiving such payments (to the extent thereof) against any insurance carrier
(to the extent permitted under such insurance policies) or plaintiff in respect
of such Indemnified Amounts, and the Indemnitee shall execute and deliver any
and all instruments and documents and perform any and all other acts or deeds
which the Company deems necessary or advisable to secure such rights. Such
right of subrogation shall be terminated upon receipt by the Company of the
amount to be reimbursed by the Indemnitee pursuant to the first sentence of
this Section 5(b).



     6. Continuation of Indemnity. All agreements and obligations of the
Company contained herein shall continue during the period the Indemnitee is an
officer and/or director of the Company (or is serving at the request of the
Company as an Affiliate Indemnitee) and shall continue thereafter for a period
of ten years from the date the Indemnitee ceases to serve as an officer and/or
director of the Company or ceases to serve as an Affiliate Indemnitee
(whichever is later).



     7. Notice and Defense of Claim. The Indemnitee agrees promptly to notify
the Company in writing upon being served with any summons, citation, subpoena,
complaint,



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indictment, information or other document relating to any Proceeding or
matter which may be subject to indemnification or advancement of expenses
covered hereunder. Notwithstanding any other provision of this Agreement, with
respect to any such Proceeding or matter as to which the Indemnitee notifies
the Company of the commencement thereof:



        (a) The Company will be entitled to participate therein at its own
expense.



        (b) Except as otherwise provided in this Section 7(b), to the extent it
desires, the Company, jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to the Indemnitee. After notice from the Company to the
Indemnitee of the Company’s election to so assume the defense thereof, the
Company shall not be liable to the Indemnitee under this Agreement for any
legal or other expenses subsequently incurred by the Indemnitee in connection
with the defense thereof other than reasonable costs of investigation or as
otherwise provided below. The Indemnitee shall have the right to employ his own
counsel in such Proceeding or matter, but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of Indemnitee unless (i) the employment of counsel by
the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of the defense of such action, or
(iii) the Company shall not in fact have employed counsel to assume the defense
of such Proceeding or matter, in each of which cases the fees and expenses of
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of any Proceeding or matter brought by or on
behalf of the Company or as to which the Indemnitee shall have made the
conclusion provided for in clause (ii) above.



        (c) The Company shall not be liable to indemnify the Indemnitee under this
Agreement for any amounts paid in settlement of any Proceeding or matter
affected without its written consent. The Company shall not settle any
Proceeding or matter in any manner that would impose any penalty or limitation
on the Indemnitee without the Indemnitee’s written consent. Neither the Company
nor the Indemnitee will unreasonably withhold its consent to any proposed
settlement.



     8. Defense Counsel. The Indemnitee hereby agrees that in any Proceeding in
which the Indemnitee and other past or present directors or officers of the
Company (or its successor) who are entitled to indemnification from the Company
are named defendants or respondents, the Indemnitee and such other past or
present directors or officers shall collectively select one firm of attorneys
in any jurisdiction to defend all such defendants and respondents in such
Proceeding unless counsel for the Indemnitee concludes in a reasoned opinion
that there are issues which may raise conflicts of interest between the
Indemnitee and such other persons.



     9. Indemnification for Negligence. TO THE EXTENT PERMITTED BY THEN
APPLICABLE LAW AND SUBJECT TO THE PROVISIONS OF THIS AGREEMENT, THE PARTIES
HERETO RECOGNIZE AND ACKNOWLEDGE THAT THE INDEMNITEE MAY BE INDEMNIFIED IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT IN PROCEEDINGS INVOLVING THE
NEGLIGENCE OF THE INDEMNITEE.



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     10. Successors; Binding Agreement. This Agreement shall be binding on and
shall inure to the benefit of and be enforceable by the Company’s successors
and assigns and by the Indemnitee’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. The Company shall require any successor or assignee (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by written
agreement in form and substance reasonably satisfactory to the Company and to
the Indemnitee, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform if no such succession or assignment had taken place.



     11. Enforcement. The Company has entered into this Agreement and assumed
the obligations imposed on the Company hereby in order to induce the Indemnitee
to act as an officer and/or director, as the case may be, of the Company, and
acknowledges that the Indemnitee is relying upon this Agreement in continuing
in such capacity. In the event the Indemnitee is required to bring any action
to enforce rights or to collect monies due under this Agreement and is
successful in such action, the Company shall reimburse the Indemnitee for all
of the Indemnitee’s reasonable attorneys’ fees and expenses in bringing and
pursuing such action. The Indemnitee shall be entitled by or to the advancement
of Indemnified Amounts to the full extent contemplated by Section 3 hereof in
connection with such proceeding. In the event that the Company shall breach
any of its obligations to the Indemnitee hereunder, including the Company’s
obligations with respect to the Advanced Amounts under Section 3 of this
Agreement, the parties hereto agree that the Indemnitee’s remedies available at
law would not be adequate and that Indemnitee would be entitled to the remedies
of specific performance and injunctive relief to enforce such obligations of
the Company.



     12. Severability. In the event that any provision of this Agreement is
determined by a court to require the Company to do or to fail to do an act
which is in violation of applicable law, such provision shall be limited or
modified in its application to the minimum extent necessary to avoid a
violation of law, and, as so limited or modified, such provision and the
balance of this Agreement shall be enforceable in accordance with its terms.



     13. Entire Agreement. This Agreement contains the entire understanding of
the parties relating to the subject matter contained herein and supersedes all
prior agreements and understandings, written or oral, relating to the subject
matter hereof.



     14. Amendment; Waiver. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in writing signed by the Indemnitee and either the President of the Company or
another officer of the Company specifically designated by the directors. No
waiver by either party at any time of any breach by the other party of, or of
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a wavier of similar or dissimilar
provisions or conditions at the same time or at any prior or subsequent times.



     15. Notices. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or three days after being
deposited by United States certified mail, return receipt requested, postage
prepaid, as follows:



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If to the Company:


Service Corporation International

1929 Allen Parkway

Houston, Texas 77019

Attention: General Counsel


If to the Indemnitee:

	 	 	 	 	 
	 	 	 
	 	
		 
	 	 		 
	 	
		 
	 	 		 
	 	
		 






or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.



     16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.



     17. Choice of Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Texas (without regards to
principles of conflicts of laws).



     18. Titles and Captions. All section titles and captions in this Agreement
are for convenience only, shall not be deemed part of this Agreement, and in no
way shall define, limit, extend, or describe the scope or intent of any
provisions hereof.



[Signature page follows.]




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     IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.

	 	 	 	 	 
	 	COMPANY:





SERVICE CORPORATION INTERNATIONAL

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 


	 	 	 	 	 
	 	INDEMNITEE:

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 





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