exv10w1






Exhibit 10.1




EMPLOYMENT AGREEMENT




     This Employment Agreement (“Agreement”) between Stewart Enterprises, Inc., a Louisiana
corporation (the “Company”), and Thomas M. Kitchen (the “Employee” or the “Executive”) is dated
effective as of February 24, 2011.



W I T N E S S E T H:




     WHEREAS, Employee is currently employed by the Company;



     WHEREAS, the Company desires to retain the services of Employee pursuant to the terms of this
Agreement, subject to Employee’s acceptance of the conditions stated herein;



     WHEREAS, Employee wishes to be employed by the Company in consideration of the compensation
and benefits set forth herein and pursuant to the terms hereof;



     WHEREAS, during the course of his employment with the Company, Employee will have received
extensive and unique knowledge, training and education in, and access to resources involving, the
Death Care Business (as defined below) at a substantial cost to the Company, which Employee
acknowledges will substantially enhance Employee’s skills and knowledge in such business;



     WHEREAS, during the course of his employment with the Company, Employee will have received
access to and information about the Company’s customers, suppliers, joint venture partners and
others having important commercial relationships with the Company, the preservation of which the
Employee acknowledges are vital to the continuing commercial success of the Company;



     WHEREAS, during the course of his employment with the Company, Employee will continue to have
access to valuable oral and written information, knowledge and data relating to the business and
operations of the Company and its subsidiaries that is non-public, confidential or proprietary in
nature and is particularly useful in the Death Care Business; and



     WHEREAS, in view of the training provided by the Company to Employee, its cost to the Company,
the importance of maintaining continuing favorable relationships with customers, suppliers,
partners and others, and the need for the Company to be protected against disclosures by Employee
of the Company’s and its subsidiaries’ trade secrets and other non-public, confidential or
proprietary information, the Company and Employee desire, among other things, to prohibit Employee
from disclosing or utilizing, outside the scope and term of his employment with the Company, any
non-public, confidential or proprietary information, knowledge and data relating to the business
and operations of the Company or its subsidiaries received by Employee during the course of his
employment, and to restrict the ability of Employee to compete with the Company or its subsidiaries
for a limited period of time;



     NOW, THEREFORE, for and in consideration of the continued employment of Employee by the
Company and the payment of salary, benefits and other compensation to Employee by the Company, the
parties hereto agree as follows:



 









 





ARTICLE 1

EMPLOYMENT CAPACITY AND TERM




     Section 1.1 Capacity and Duties of Employee. The Employee is employed by the Company to render services
on behalf of the Company in the capacity set forth in Appendix A hereto, as such Appendix may be
amended or supplemented from time to time (as so amended or supplemented, “Appendix A”). The
Employee shall perform such duties, consistent with the Employee’s job title, as are assigned to
the title or titles held by the Employee as set forth from time to time in the Company’s Bylaws and
such other duties as may be prescribed from time to time by the Company’s Board of Directors (the
“Board”).



     Section 1.2 Employment Term. The term of Employee’s employment under this Agreement (the “Employment
Term”) shall commence on the Agreement Date and shall continue through April 7, 2014, subject to
extension as provided in Section 5.3 in the event of a Change of Control (as defined in Section
5.2), and subject to any earlier termination of Employee’s status as an employee pursuant to this
Agreement.



     Section 1.3 Devotion to Responsibilities. During the Employment Term, the Employee shall devote all of his
business time to the business of the Company, shall use his best efforts to perform faithfully and
efficiently his duties under this Agreement, and shall not engage in or be employed by any other
business; provided, however, that nothing herein shall prohibit the Employee from (a) serving as a
member of the board of directors, board of trustees or the like of any for-profit or non-profit
entity that does not compete with the Company, or performing services of any type for any civic or
community entity, whether or not the Employee receives compensation therefor, (b) investing his
assets in such form or manner as shall require no more than nominal services on the part of the
Employee in the operation of the business of the entity in which such investment is made, or (c)
serving in various capacities with, and attending meetings of, industry or trade groups and
associations, as long as the Employee’s activities permitted by clauses (a), (b) and (c) above do
not materially and unreasonably interfere with the ability of the Employee to perform the services
and discharge the responsibilities required of him under this Agreement. Notwithstanding clause
(b) above, during the Employment Term, the Employee may not beneficially own more than 2% of the
equity interests of a business organization required to file periodic reports with the Securities
and Exchange Commission under the Securities Exchange Act of 1934 (the “Exchange Act”) and may not
beneficially own more than 2% of the equity interests of a business organization that competes with
the Company. For purposes of this paragraph, “beneficially own” has the meaning ascribed to that
term in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended from time to time (the “Exchange
Act”).



ARTICLE 2

COMPENSATION AND BENEFITS




     During the Employment Term, the Company shall provide the Employee with the compensation and
benefits described below:



     Section 2.1 Salary and Bonus. The Company shall pay the Employee a salary at an annual rate per fiscal
year of the Company (“Fiscal Year”) as set forth in Appendix A (“Base



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Salary”), which shall be
payable to the Employee at such intervals as other salaried employees of the Company are paid.




          (a) The Employee shall be eligible to receive an annual incentive bonus for each of fiscal
2011, 2012 and 2013 (the “Bonus”), up to the maximum set forth in Appendix A. The Bonus will be
awarded based upon factors to be established or approved annually by the Compensation Committee in
its discretion. Any Bonus shall be paid no later than March 15 of the following calendar year.




          (b) Any change in the Employee’s title, Base Salary or Bonus eligibility during the Employment
Term shall be set forth in one or more amendments or supplements to Appendix A to this Agreement,
each of which shall be signed by the Employee and a member of the Compensation Committee of the
Board of Directors of the Company.




     Section 2.2 Benefits. The Employee shall be eligible to participate in all benefit programs
provided to other employees of the Company from time to time in accordance with the eligibility and
other terms of such programs.



     Section 2.3 Expenses. The Employee shall be reimbursed for reasonable out-of-pocket expenses
incurred from time to time on behalf of the Company or any subsidiary in the performance of his
duties under this Agreement, upon the presentation of such supporting invoices, documents and forms
as the Company reasonably requests.



     Section 2.4 Supplemental Executive Retirement Plan. The Employee shall be entitled to
participate in the Company’s Supplemental Executive Retirement Plan on the terms and subject to the
conditions set forth therein.



     Section 2.5 Supplemental 401(k) Plan. The Employee shall be entitled to participate in the
Company’s supplemental 401(k) plan (the Stewart Enterprises, Inc. Supplemental Retirement and
Deferred Compensation Plan) on the same basis as other executive officers.



     Section 2.6 Car Allowance. During the term of Executive’s employment hereunder, Executive
shall receive a car allowance of $15,300 per year.



     Section 2.7 Health Care Allowance. During the term of Executive’s employment hereunder,
Executive shall receive a health care allowance of $5,000 per year.



ARTICLE 3

TERMINATION OF EMPLOYMENT




     Section 3.1 Death. The Employee’s status as an employee shall terminate immediately and
automatically upon the Employee’s death during the Employment Term.



     Section 3.2 Disability. The Employee’s status as an employee may be terminated for
“Disability” as follows:



          (a) The Employee’s status as an employee shall terminate if the Employee has a disability that
would entitle him to receive benefits under the Company’s long-term disability



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insurance policy in
effect at the time either because he is Totally Disabled or Partially Disabled, as such terms are
defined in such policy. Any such termination shall become effective on the first day on which the
Employee is eligible to receive payments under such policy (or on the first day that he would be so
eligible, if he had applied timely for such payments).




          (b) If the Company has no long-term disability plan in effect, if (i) the Employee is rendered
incapable because of physical or mental illness of satisfactorily discharging his duties and
responsibilities under this Agreement for a period of 90 consecutive days and (ii) a duly qualified
physician chosen by the Company and reasonably acceptable to the Employee or his legal
representatives so certifies in writing, the Board shall have the power to determine that the
Employee has become disabled. If the Board makes such a determination, the Company shall have the
continuing right and option, during the period that such disability continues, and by notice given
in the manner provided in this Agreement, to terminate the status of Employee as an employee. Any
such termination shall become effective 30 days after such notice of termination is given, unless
within such 30-day period, the Employee becomes capable of rendering services of the character
contemplated hereby (and a physician chosen by the Company and reasonably acceptable to the
Employee or his legal representatives so certifies in writing) and the Employee in fact resumes
such services.




          (c) The “Disability Effective Date” shall mean the date on which termination of employment
becomes effective due to Disability.




     Section 3.3 Cause. The Company may terminate the Employee’s status as an employee for Cause.
As used herein, “Cause” shall mean the Employee’s: (a) breach of this Agreement; (b) intentional
failure to perform his prescribed duties; (c) unauthorized acts or omissions that could reasonably
be expected to cause material financial harm to the Company or materially disrupt Company
operations; (d) commission of a felony; (e) commission of an act of dishonesty (even if not a
crime) resulting in the enrichment of the Employee at the expense of the Company; (f) knowing
falsification or knowing attempted falsification of financial records of the Company in violation
of SEC Rule
13b2-1; or (g) willful failure to follow established Company policies or procedures; provided,
however, that no such termination may take place in the case of (a) through (c) or (g) above unless
the Company has provided written notice to the Employee of such conduct and the Employee has failed
to remedy such conduct within 10 days following receipt of such notice.



     Section 3.4 Good Reason. The Employee may terminate his status as an employee for Good
Reason. As used herein, the term “Good Reason” shall mean:



          (a) The occurrence of any of the following during the Employment Term:




               (i) the assignment to the Employee of any duties or responsibilities that are inconsistent
with the Employee’s status, title and position as set forth in Appendix A; provided, that following
a Change of Control, if the Company is controlled by another company (directly or indirectly),
Employee shall be deemed to have been assigned duties and responsibilities inconsistent with his
status, title and position as set forth in Appendix A if he does not hold an equivalent position in
the ultimate parent company.



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               (ii) any removal of the Employee from, or any failure to reappoint or reelect the Employee to,
the position set forth in Appendix A (other than in connection with the expiration of the
Employment Term), except in connection with a termination of Employee’s status as an employee as
permitted by this Agreement.



               (iii) the Company’s requiring the Employee to be based anywhere other than in the metropolitan
area set forth in Appendix A, except for required travel in the ordinary course of the Company’s
business;



          (b) any breach of this Agreement by the Company that continues for a period of 10 days after
written notice thereof is given by the Employee to the Company;




          (c) the failure by the Company to obtain the assumption of its obligations under this
Agreement by any successor or assign as contemplated in this Agreement; or




          (d) any purported termination by the Company of the Employee’s status as an employee for Cause
that is not effected pursuant to a Notice of Termination satisfying the requirements of this
Agreement.




     Section 3.5 Voluntary Termination by the Company. The Company may terminate the Employee’s
status as employee for other than death, Disability or Cause.



     Section 3.6 Voluntary Termination by the Employee. The Employee may voluntarily terminate the
Employee’s status as employee for other than Good Reason.



     Section 3.7 Notice of Termination. Any termination by the Company or by the Employee, shall
be communicated by Notice of Termination to the other party hereto
given in accordance with Article 9 Section 9.2 of this Agreement. For purposes of this
Agreement, a “Notice of Termination” means a written notice that (a) indicates the specific
termination provision in this Agreement relied upon (b) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of the
Employee’s employment under the provisions so indicated and (c) if the Date of Termination (as
defined below) is other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than 30 days after the giving of such notice). The failure by the
Employee or the Company to set forth in the Notice of Termination any fact or circumstance that
contributes to a showing of Good Reason, Disability or Cause shall not negate the effect of the
notice nor waive any right of the Employee or the Company, respectively, hereunder or preclude the
Employee or the Company, respectively, from asserting such fact or circumstance in enforcing the
Employee’s or the Company’s rights hereunder.



     Section 3.8 Date of Termination. “Date of Termination” means (a) if Employee’s employment is
terminated by reason of his death or Disability, the Date of Termination shall be the date of death
of Employee or the Disability Effective Date, as the case may be, (b) if Employee’s employment is
terminated by the Company for Cause, or by the Employee for Good Reason, the date of delivery of
the Notice of Termination or any later date specified therein (which date shall not be more than 30
days after the giving of such notice) as the case may be, (c) if the Employee’s employment is
terminated by the Company for reasons other than death, Disability or Cause, the Date of
Termination shall be the date on which the Company notifies the



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Employee of such termination or any
later date specified therein, and (d) if the Employee’s employment is terminated voluntarily by the
Employee for reasons other than Good Reason, the Date of Termination shall be the date on which the
Employee notifies the Company of such termination or any later date specified therein (which date
shall not be later than 30 days after the giving of such notice) as the case may be.




ARTICLE 4

OBLIGATIONS UPON TERMINATION




     Section 4.1 Separation from Service. No payments or benefits provided herein that are paid
because of a termination of employment under circumstances described herein shall be paid, unless
such termination of employment also constitutes a “separation from service” within the meaning of
Section 409A of the Internal Revenue Code of 1986, as amended and the regulations and guidance
issued thereunder (“Section 409A”).



     Section 4.2 Death. If the Employee’s status as an employee is terminated by reason of the
Employee’s death, this Agreement shall terminate without further obligation to the Employee’s legal
representatives under this Agreement, other than the obligation to pay accrued salary through the
Date of Termination and to make any payments due pursuant to employee benefit plans maintained by
the Company or its subsidiaries.



     Section 4.3 Disability. If Employee’s status as an employee is terminated by reason of
Employee’s Disability, this Agreement shall terminate without further
obligation to the Employee, other than the obligation to pay accrued salary through the Date
of Termination and to make any payments due pursuant to employee benefit plans maintained by the
Company or its subsidiaries.



     Section 4.4 Termination by the Company for Reasons other than Death, Disability or Cause;
Termination by the Employee for Good Reason. If the Company terminates the Employee’s status as an
employee for reasons other than death, Disability or Cause, or the Employee terminates his
employment for Good Reason, then, except as provided in Section 5.4, the Company shall pay to the
Employee an amount equal to a single year’s Base Salary in effect at the Date of Termination,
payable over a two-year period as follows: beginning on the first regular payroll date that is at
least six months after the Date of Termination, the Employee shall be paid one-fourth of a single
year’s Base Salary, and the remaining three-fourths shall be paid in equal installments on the
Company’s regular bi-weekly payroll dates over the following 18 months; provided, however, that if
the Employee is not a “specified employee” under Section 409A on the Date of Termination, such
payments shall begin on the first regular payroll date of the Company following the Date of
Termination and shall be made in equal installments on each of such payroll dates over the
following 24 months.



     Section 4.5 Cause. If the Employee’s status as an employee is terminated by the Company for
Cause, this Agreement shall terminate without further obligation to the Employee other than for
accrued salary through the Date of Termination, obligations imposed by law and obligations imposed
pursuant to any employee benefit plan maintained by the Company or its subsidiaries.



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     Section 4.6 Resignation from Board of Directors. If Employee is a director of the Company and
his employment is terminated for any reason other than death, the Employee shall, if requested by
the Company, immediately resign as a director of the Company. If such resignation is not received
when so requested, the Employee shall forfeit any right to receive any payments pursuant to this
Agreement.



     Section 4.7 No Acceleration of Payments. No acceleration of payments and benefits provided
for herein shall be permitted, except that the Company may accelerate payment, if permitted under
the regulations under Section 409A.



ARTICLE 5

CHANGE OF CONTROL




     Section 5.1 In the event a Change of Control occurs during the Employment Term, then the
provisions of this Article 5 shall be applicable.



     Section 5.2 “Change of Control” means:



          (a) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of more than 30% of the outstanding shares of the Company’s
Class A Common Stock, no par value
per share (the “Common Stock”); provided, however, that for purposes of this subsection (a),
the following acquisitions shall not constitute a Change of Control:




               (i) any acquisition of Common Stock directly from the Company,



               (ii) any acquisition of Common Stock by the Company,



               (iii) any acquisition of Common Stock by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the Company, or



               (iv) any acquisition of Common Stock by any corporation pursuant to a transaction that
complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 5.2; or



          (b) individuals who, as of the date of this Agreement constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date of this Agreement whose election, or
nomination for election by the Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be considered a member of the
Incumbent Board, unless such individual’s initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a person other than the
Incumbent Board; or





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          (c) consummation of a reorganization, merger or consolidation, or sale or other disposition of
all or substantially all of the assets of the Company (a “Business Combination”), in each case,
unless, following such Business Combination,




               (i) all or substantially all of the individuals and entities who were the beneficial owners of
the Company’s outstanding common stock and the Company’s voting securities entitled to vote
generally in the election of directors immediately prior to such Business Combination have direct
or indirect beneficial ownership, respectively, of 50% or more of the then outstanding shares of
common stock, and 50% or more of the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, of the corporation resulting
from such Business Combination (which, for purposes of this paragraph (i) and paragraphs (ii) and
(iii), shall include a corporation which as a result of such transaction controls the Company or
all or substantially all of the Company’s assets either directly or through one or more
subsidiaries), and



               (ii) except to the extent that such ownership existed prior to the Business Combination, no
person (excluding any corporation resulting from such Business Combination or any employee benefit
plan or related trust of the Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of the then outstanding shares of common
stock of the
corporation resulting from such Business Combination or 20% or more of the combined voting
power of the then outstanding voting securities of such corporation, and



               (iii) at least 50% of the members of the board of directors of the corporation resulting from
such Business Combination were members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for such Business Combination; or



          (d) approval by the shareholders of the Company of a complete liquidation or dissolution of
the Company.




     Section 5.3 (a) Upon a Change of Control, the Employment Term shall automatically continue
following such Change of Control for a period equal to the then remaining Employment Term or two
years, whichever period is longer, subject to any earlier termination of Employee’s status as an
employee pursuant to this Agreement.



          (b) For any fiscal year ending during the two-year period following a Change of Control
during which entire year the Employee remains employed, the Employee shall be awarded an annual
bonus in cash at least equal to the average Bonus paid to the Employee for the last three completed
fiscal years prior to the Change of Control (the “Minimum Bonus”). The Minimum Bonus shall be paid
no later than 21/2 months following the end of the fiscal year for which the Minimum Bonus is
awarded, unless the Employee shall have elected to defer the receipt of such Minimum Bonus in
accordance with procedures established by the Company.




     Section 5.4 (a) If, on or within two years following a Change of Control,
the Company terminates Employee’s employment for reasons other than death, Disability or Cause



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or
Employee terminates his employment for Good Reason, then at the times provided in Section
5.4(b),




               (i) instead of the payments provided in Section 4.4, Employee shall receive from the
Company an amount equal to two times the sum of the Employee’s Base Salary in effect at the Date of
Termination; and



               (ii) the Company shall pay to the Employee an amount calculated by multiplying the Minimum
Bonus by the fraction obtained by dividing the number of days from the beginning of the fiscal year
in which the Date of Termination occurs through the Date of Termination by 365; provided, however,
that, if the Employee has in effect a 401(k) plan or non-qualified deferred compensation plan
deferral election with respect to any percentage of the annual bonus which would otherwise become
payable with respect to the fiscal year in which the Date of Termination occurs, such payment shall
be reduced by an amount equal to such percentage times the payment (which reduction amount shall be
deferred in accordance with such election).



          (b) (i) If the Change of Control also constitutes a change in ownership or effective control
of the Company or a change in ownership of a substantial portion of the Company’s assets under
Section 409A (a “409A Change of Control”), the payments provided in this Section 5.4 shall
be made on the first regular payroll date that
is at least six months after the Date of Termination; provided, however, that if Employee is
not a “specified employee” under Section 409A on the Date of Termination, such payment shall be
made 10 business days following the Date of Termination. If the Change of Control does not also
constitute a 409A Change of Control, the payments shall be made over a two-year period as
follows: beginning on the first regular payroll date that is at least six months after the Date of
Termination, the Employee shall be paid one-fourth of the total amount due under this Section
5.4, and the remaining three-fourths shall be paid in equal installments on the Company’s
regular bi-weekly payroll dates over the following 18 months; provided, however, that if the
Employee is not a “specified employee” under Section 409A on the Date of Termination, such payments
shall begin on the first regular payroll date of the Company following the Date of Termination and
shall be made in equal installments on each of such payroll dates over the following 24 months.




               (ii) If the payments to be made under Section 5.4 are not required to be made in full within
10 business days following the Date of Termination, the Company and any successor through merger or
otherwise shall contribute cash within 10 business days following the Date of Termination to a
rabbi trust for the Employee’s benefit in an amount equal to the total of the unpaid amounts to
which the Employee is entitled hereunder. Payout from such rabbi trust shall be made as provided
in Section 5.4(b)(i).



     Section 5.5 All stock options and restricted stock previously granted to the Executive shall
vest upon a change of control of the Company as provided in the applicable stock incentive plan and
award agreement.



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ARTICLE 6

NONDISCLOSURE, NONCOMPETITION AND PROPRIETARY RIGHTS




     Section 6.1 Certain Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:



          (a) “Confidential Information” means any information, knowledge or data of any nature and in
any form (including information that is electronically transmitted or stored on any form of
magnetic or electronic storage media) relating to the past, current or prospective business or
operations of the Company and its subsidiaries, that at the time or times concerned is not
generally known to persons engaged in businesses similar to those conducted or contemplated by the
Company and its subsidiaries (other than information known by such persons through a violation of
an obligation of confidentiality to the Company), whether produced by the Company and its
subsidiaries or any of their consultants, agents or independent contractors or by Employee, and
whether or not marked confidential, including without limitation information relating to the
Company’s or its subsidiaries’ products and services, business plans, business acquisitions, joint
ventures, processes, product or service research and development ideas, methods or techniques,
training methods and materials, and other operational methods or techniques, quality assurance
procedures or standards, operating procedures, files, plans, specifications, proposals, drawings,
charts, graphs, support data,
trade secrets, supplier lists, supplier information, purchasing methods or practices,
distribution and selling activities, consultants’ reports, marketing and engineering or other
technical studies, maintenance records, employment or personnel data, marketing data, strategies or
techniques, financial reports, budgets, projections, cost analyses, price lists, formulae and
analyses, employee lists, customer records, customer lists, customer source lists, proprietary
computer software, and internal notes and memoranda relating to any of the foregoing.




          (b) “Death Care Business” means (i) the owning and operating of funeral homes and cemeteries,
including combined funeral home and cemetery facilities, (ii) the offering of services and products
to meet families’ funeral needs, including prearrangement, family consultation, the sale of caskets
and related funeral and cemetery products and merchandise (whether at physical locations or by
means of the Internet), the removal, preparation and transportation of remains, cremation, the use
of funeral home facilities for visitation and worship, and related transportation services, (iii)
the marketing and sale of funeral services and cemetery property or merchandise on an at-need or
prearranged basis, (iv) providing, managing and administering financing arrangements (including
trust funds, escrow accounts, insurance and installment sales contracts) for prearranged funeral
plans and cemetery property and merchandise, (v) providing interment services, the sale (on an
at-need or prearranged basis) of cemetery property including lots, lawn crypts, family and
community mausoleums and related cemetery merchandise such as monuments, memorials and burial
vaults, (vi) the maintenance of cemetery grounds pursuant to perpetual care contracts and laws or
on a voluntary basis, and (vii) offering mausoleum design, construction and sales services.




     Section 6.2 Nondisclosure of Confidential Information. During the Employment Term, Employee
shall hold in a fiduciary capacity for the benefit of the Company all Confidential Information
which shall have been obtained by Employee during Employee’s employment (whether prior to or after
the Agreement Date) and shall use such Confidential



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Information solely within the scope of his
employment with and for the exclusive benefit of the Company. For a period of five years after the
Employment Term, commencing with the Date of Termination, Employee agrees (a) not to communicate,
divulge or make available to any person or entity (other than the Company) any such Confidential
Information, except upon the prior written authorization of the Company or as may be required by
law or legal process, and (b) to deliver promptly to the Company any Confidential Information in
his possession, including any duplicates thereof and any notes or other records Employee has
prepared with respect thereto. In the event that the provisions of any applicable law or the order
of any court would require Employee to disclose or otherwise make available any Confidential
Information, Employee shall give the Company prompt prior written notice of such required
disclosure and an opportunity to contest the requirement of such disclosure or apply for a
protective order with respect to such Confidential Information by appropriate proceedings.




     Section 6.3 Limited Covenant Not to Compete. During the Employment Term and for a period of
two years thereafter, commencing with the Date of Termination, Employee agrees that, with respect
to each State of the United States or other jurisdiction,
or specified portions thereof, in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries, (b) conducts the business of the Company or
any of its subsidiaries or (c) supervises the activities of other employees of the Company or any
of its subsidiaries, as identified in Appendix B attached hereto and forming a part of this
Agreement, and in which the Company or any of its subsidiaries engages in the Death Care Business
on the Date of Termination (collectively, the “Subject Areas”), Employee will restrict his
activities within the Subject Areas as follows:



          (a) Employee will not, directly or indirectly, for himself or others, own, manage, operate,
control, be employed in an executive, managerial or supervisory capacity by, consult with, or
otherwise engage or participate in or allow his skill, knowledge, experience or reputation to be
used in connection with, the ownership, management, operation or control of, any company or other
business enterprise engaged in the Death Care Business within any of the Subject Areas; provided,
however, that nothing contained herein shall prohibit Employee from making passive investments as
long as Employee does not beneficially own more than 2% of the equity interests of a business
enterprise engaged in the Death Care Business within any of the Subject Areas. For purposes of
this paragraph, “beneficially own” shall have the same meaning ascribed to that term in Rule 13d-3
under the Exchange Act.




          (b) Employee will not call upon any customer of the Company or its subsidiaries for the
purpose of soliciting, diverting or enticing away the business of such person or entity, or
otherwise disrupting any previously established relationship existing between such person or entity
and the Company or its subsidiaries;




          (c) Employee will not solicit, induce, influence or attempt to influence any supplier, lessor,
lessee, licensor, partner, joint venturer, potential acquiree or any other person who has a
business relationship with the Company or its subsidiaries, or who on the Date of Termination is
engaged in discussions or negotiations to enter into a business relationship with the Company or
its subsidiaries, to discontinue or reduce or limit the extent of such relationship with the
Company or its subsidiaries; and




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          (d) Employee will not make contact with any of the employees of the Company or its
subsidiaries with whom he had contact during the course of his employment with the Company for the
purpose of soliciting such employee for hire, whether as an employee or independent contractor, or
otherwise disrupting such employee’s relationship with the Company or its subsidiaries.




          (e) Employee further agrees that, for a period of one year from and after the Date of
Termination, Employee will not hire, on behalf of himself or any person or entity engaged in the
Death Care Business with which Employee is associated, any employee of the Company or its
subsidiaries as an employee or independent contractor, whether or not such engagement is solicited
by Employee; provided, however, that the restriction contained in this subsection (e) shall not
apply to Company employees who reside in, or are hired by Employee to perform work in, any of the
Subject Areas located within the State of Arkansas.




     Employee agrees that he will from time to time upon the Company’s request promptly execute any
supplement, amendment, restatement or other modification of Appendix B as may be necessary or
appropriate to correctly reflect the jurisdictions which, at the time of such modification, should
be covered by Appendix B and this Article 6 Section 6.3. Furthermore, Employee agrees that all
references to Appendix B in this Agreement shall be deemed to refer to Appendix B as so
supplemented, amended, restated or otherwise modified from time to time.



     Section 6.4 Injunctive Relief; Other Remedies. Employee acknowledges that a breach by
Employee of Section 6.2 or 6.3 of this Article 6 would cause immediate and irreparable harm to the
Company for which an adequate monetary remedy does not exist; hence, Employee agrees that, in the
event of a breach or threatened breach by Employee of the provisions of Section 6.2 or 6.3 of this
Article 6 during or after the Employment Term, the Company shall be entitled to injunctive relief
restraining Employee from such violation without the necessity of proof of actual damage or the
posting of any bond, except as required by non-waivable, applicable law. Nothing herein, however,
shall be construed as prohibiting the Company from pursuing any other remedy at law or in equity to
which the Company may be entitled under applicable law in the event of a breach or threatened
breach of this Agreement by Employee, including without limitation the recovery of damages and/or
costs and expenses, such as reasonable attorneys’ fees, incurred by the Company as a result of any
such breach or threatened breach. In addition to the exercise of the foregoing remedies, the
Company shall have the right upon the occurrence of any such breach or threatened breach to cancel
any unpaid salary, bonus, commissions or reimbursements otherwise outstanding at the Date of
Termination. In particular, Employee acknowledges that the payments provided under Article 4
Section 4.4 or Article 5 Section 5.4 are conditioned upon Employee fulfilling any noncompetition
and nondisclosure agreements contained in this Article 6. In the event Employee shall at any time
materially breach or threaten to breach any noncompetition or nondisclosure agreements contained in
this Article 6, the Company may suspend or eliminate payments under Article 4 or Article 5 during
the period of such breach or threatened breach. Employee acknowledges that any such suspension or
elimination of payments would be an exercise of the Company’s right to suspend or terminate its
performance hereunder upon Employee’s breach of this Agreement; such suspension or elimination of
payments would not constitute, and should not be characterized as, the imposition of liquidated
damages.



12









 





     Section 6.5 Requests for Waiver in Cases of Undue Hardship. In the event that Employee should
find any of the limitations of Article 6 Section 6.3 (including without limitation the geographic
restrictions of Appendix B) to impose a severe hardship on Employee’s ability to secure other
employment, Employee may make a request to the Company for a waiver of the designated limitations
before accepting employment that otherwise would be a breach of Employee’s promises and obligations
under this Agreement. Such request must be in writing and clearly set forth the name and address
of the organization with which employment is sought and the location, position and duties that
Employee will be performing. The Company will consider the request and, in its sole discretion,
decide whether and on what conditions to grant such waiver.



     Section 6.6 Governing Law of this Article 6; Consent to Jurisdiction. Any dispute regarding
the reasonableness of the covenants and agreements set forth in this Article 6 (including Appendix
B hereto), or the territorial scope or duration thereof, or the remedies available to the Company
upon any breach of such covenants and agreements, shall be governed by and interpreted in
accordance with the laws of the State of the United States or other jurisdiction in which the
alleged prohibited competing activity or disclosure occurs, and, with respect to each such dispute,
the Company and Employee each hereby irrevocably consent to the exclusive jurisdiction of the state
and federal courts sitting in the relevant State (or, in the case of any jurisdiction outside the
United States, the relevant courts of such jurisdiction) for resolution of such dispute, and agree
to be irrevocably bound by any judgment rendered thereby in connection with such dispute, and
further agree that service of process may be made upon him or it in any legal proceeding relating
to this Article 6 and/or Appendix B by any means allowed under the laws of such jurisdiction. Each
party irrevocably waives any objection he or it may have as to the venue of any such suit, action
or proceeding brought in such a court or that such a court is an inconvenient forum.



     Section 6.7 Employee’s Understanding of this Article. Employee hereby represents to the
Company that he has read and understands, and agrees to be bound by, the terms of this Article 6
(including Appendix B hereto). Employee acknowledges that the geographic scope and duration of the
covenants contained in Article 6 Section 6.3 are the result of arm’s-length bargaining and are fair
and reasonable in light of (i) the importance of the functions performed by Employee and the length
of time it would take the Company to find and train a suitable replacement, (ii) the nature and
wide geographic scope of the operations of the Company and its subsidiaries, (iii) Employee’s level
of control over and contact with the business and operations of the Company and its subsidiaries in
a significant number of jurisdictions where same are conducted and (iv) the fact that all facets of
the Death Care Business are conducted by the Company and its subsidiaries throughout the geographic
area where competition is restricted by this Agreement. It is the desire and intent of the parties
that the provisions of this Agreement be enforced to the fullest extent permitted under applicable
law, whether now or hereafter in effect and, therefore, to the extent permitted by applicable law,
the parties hereto waive any provision of applicable law that would render any provision of this
Article 6 (including Appendix B hereto) invalid or unenforceable.



13









 





ARTICLE 7

EXCISE TAXES




     Section 7.1 Modified Cut-Back. (i) Notwithstanding any other provisions of this Agreement, if
a Change of Control occurs during the term of this Agreement, in the event that any payment or
benefit received or to be received by the Employee in connection with the Change of Control or the
termination of the Employee’s employment (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company, any Person whose actions result in the
Change of Control or any Person Affiliated with the Company or such Person) (all such payments and
benefits, including without limitation the payments and benefits under Section 5.4(a) hereof and
the acceleration of vesting of any outstanding equity awards,
being hereinafter called “Total Payments”) would be subject (in whole or in part), to an
excise tax imposed by section 4999 of the Code calculated as provided in Section 7.2 hereof (the
“Excise Tax”), then, after taking into account any reduction in the Total Payments provided by
reason of section 280G of the Code in such other plan, arrangement or agreement, the cash payments
under Section 5.4(a) hereof shall first be reduced, and any noncash payments and benefits under any
other plan or arrangement shall thereafter be reduced, to the extent necessary so that no portion
of the Total Payments is subject to the Excise Tax but only if (a) the net amount of such Total
Payments, as so reduced (and after subtracting the net amount of federal, state and local income
and employment taxes on such reduced Total Payments) is greater than or equal to (b) the net amount
of such Total Payments without such reduction (but after subtracting the net amount of federal,
state and local income and employment taxes on such Total Payments and the amount of Excise Tax to
which the Employee would be subject in respect of such unreduced Total Payments); provided,
however, that the Employee shall have the right to elect to have the noncash payments and benefits
under any other plan or arrangement reduced (or eliminated) prior to any reduction of the cash
payments under Section 5.4(a) hereof.



               (ii) If there is a reduction in the Total Payments as described in Section 7.1(i), the amount
of such reduction shall be distributed by the Compensation Committee of the Board of Directors of
the Company to other officers of the Company who served as officers of the Company at the time of
the Change of Control. The Employee may make recommendations as to the recipients of any payments
hereunder and the amount to be received by each, but the determination of the recipients and the
amounts to be received by each shall be in the sole discretion of the Compensation Committee of the
Board of Directors of the Company.



     Section 7.2 Calculation. For purposes of determining whether and the extent to which the
Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt
or enjoyment of which the Employee shall have waived at such time and in such manner as not to
constitute a “payment” within the meaning of Section 280G(b) the Code shall be taken into account,
(ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax
counsel (“Tax Counsel”) reasonably acceptable to the Employee and selected by the accounting firm
(the “Auditor”) which was, immediately prior to the Change of Control, the Company’s independent
auditor, does not constitute a “parachute payment” within the meaning of section 280G(b)(2)of the
Code (including amounts allocated to any non-compete agreement and amounts excluded from the
definition of “parachute payment” by reason of section 280G(b)(4)(A) of the Code) and, in
calculating the Excise Tax, no portion of such Total Payments shall be taken into account which in
the opinion of Tax Counsel, constitutes



14









 




reasonable compensation for services actually rendered,
within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “Base Amount” (within the
meaning set forth in section 280G(b)(3) of the Code) allocable to such reasonable compensation, and
(iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total
Payments shall be determined by the Auditor in accordance with the principles of sections
280G(d)(3) and (4) of the Code.




     Section 7.3 Statement of Calculation. At the time that payments are made under this
Agreement, the Company shall provide the Employee with a written statement setting forth the manner
in which such payments were calculated and the basis for such calculations including, without
limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or
other advisors or consultants (and any such opinions or advice which are in writing shall be
attached to the statement).



     Section 7.4 Definitions. For purposes of this Article 7, the following terms shall have the
definitions provided below:



     (a) “Affiliate” (and variants thereof) shall mean a Person that controls, or is controlled by,
or is under common control with, another specified Person, either directly or indirectly.



     (b) “Person” shall mean a natural person or company, and shall also mean the group or
syndicate created when two or more Persons act as a syndicate or other group (including, without
limitation, a partnership or limited partnership) for the purpose of acquiring, holding, or
disposing of a security, except that “Person” shall not include an underwriter temporarily holding
a security pursuant to an offering of the security.



ARTICLE 8

ARBITRATION




     Section 8.1 Binding Agreement to Arbitrate. Any claim or controversy arising out of any
provision of this Agreement (other than Article 6 hereof), or the breach or alleged breach of any
such provision, shall be settled by arbitration administered by the American Arbitration
Association (the “AAA”) under its National Rules for the Resolution of Employment Disputes (the
“Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof.



     Section 8.2 Selection and Qualifications of Arbitrators. If no party to the arbitration makes
a claim in excess of $1.0 million, exclusive of interest and attorneys’ fees, the proceedings shall
be conducted before a single neutral arbitrator selected in accordance with the Rules. If any
party makes a claim that exceeds $1.0 million, the proceedings shall be conducted before a panel of
three neutral arbitrators, one of whom shall be selected by each party within 15 days after
commencement of the proceeding and the third of whom shall be selected by the first two arbitrators
within 10 days after their appointment. If the two arbitrators selected by the parties are unable
or fail to agree on the third arbitrator, the third arbitrator shall be selected by the AAA. Each
arbitrator shall be a member of the bar of the State of Louisiana and actively engaged in the
practice of employment law for at least 15 years.



15









 





     Section 8.3 Location of Proceedings. The place of arbitration shall be New Orleans,
Louisiana.



     Section 8.4 Remedies. Any award in an arbitration initiated under this Article 8 shall be
limited to actual monetary damages, including if determined appropriate by the arbitrator(s) an
award of costs and fees to the prevailing party. “Costs and fees” mean all
reasonable pre-award expenses of the arbitration, including arbitrator’s fees, administrative
fees, travel expenses, out-of-pocket expenses such as copying, telephone, witness fees and
attorneys’ fees. The arbitrator(s) will have no authority to award consequential, punitive or
other damages not measured by the prevailing party’s actual damages, except as may be required by
statute.



     Section 8.5 Opinion. The award of the arbitrators shall be in writing, shall be signed by a
majority of the arbitrators, and shall include findings of fact and a statement of the reasons for
the disposition of any claim.



ARTICLE 9

MISCELLANEOUS




     Section 9.1 Binding Effect.



          (a) This Agreement shall be binding upon and inure to the benefit of the Company and any of
its successors or assigns.




          (b) This Agreement is personal to the Employee and shall not be assignable by the Employee
without the consent of the Company (there being no obligation to give such consent) other than such
rights or benefits as are transferred by will or the laws of descent and distribution.




          (c) The Company shall require any successor to or assignee of (whether direct or indirect, by
purchase, merger, consolidation or otherwise) all or substantially all of the assets or businesses
of the Company (i) to assume unconditionally and expressly this Agreement and (ii) to agree to
perform all of the obligations under this Agreement in the same manner and to the same extent as
would have been required of the Company had no assignment or succession occurred, such assumption
to be set forth in a writing reasonably satisfactory to the Employee. In the event of any such
assignment or succession, the term “Company” as used in this Agreement shall refer also to such
successor or assign.




     Section 9.2 Notices. All notices hereunder must be in writing and shall be deemed to have
been given upon receipt of delivery by: (a) hand (against a receipt therefor), (b) certified or
registered mail, postage prepaid, return receipt requested, (c) a nationally recognized overnight
courier service (against a receipt therefor) or (d) telecopy transmission with confirmation of
receipt. All such notices must be addressed as follows:


If to the Company, to:


Stewart Enterprises, Inc.

1333 South Clearview Parkway

Jefferson, LA 70121




			
	Attn:	 	Chairman of the Compensation Committee
of the Board of Directors






16









 








If to the Employee, to:


Thomas M. Kitchen

229 E. William David Pkwy.

Metairie, LA 70005




     or such other address as to which any party hereto may have notified the other in writing.



     Section 9.3 Governing Law. This Agreement shall be construed and enforced in accordance with
and governed by the internal laws of the State of Louisiana without regard to principles of
conflict of laws, except as expressly provided in Article 6 Section 6.6 above with respect to the
resolution of disputes arising under, or the Company’s enforcement of, Article 6 of this Agreement.



     Section 9.4 Withholding. The Employee agrees that the Company has the right to withhold, from
the amounts payable pursuant to this Agreement, all amounts required to be withheld under
applicable income and/or employment tax laws, or as otherwise stated in documents granting rights
that are affected by this Agreement.



     Section 9.5 Severability. If any term or provision of this Agreement (including without
limitation those contained in Appendix B), or the application thereof to any person or
circumstance, shall at any time or to any extent be invalid, illegal or unenforceable in any
respect as written, Employee and the Company intend for any court construing this Agreement to
modify or limit such provision temporally, spatially or otherwise so as to render it valid and
enforceable to the fullest extent allowed by law. Any such provision that is not susceptible of
such reformation shall be ignored so as to not affect any other term or provision hereof, and the
remainder of this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid, illegal or unenforceable, shall not
be affected thereby and each term and provision of this Agreement shall be valid and enforced to
the fullest extent permitted by law.



     Section 9.6 Waiver of Breach. The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach thereof.



     Section 9.7 Remedies Not Exclusive. Except as provided in Article 8 hereof, no remedy
specified herein shall be deemed to be such party’s exclusive remedy, and accordingly, in addition
to all of the rights and remedies provided for in this Agreement, the parties shall have all other
rights and remedies provided to them by applicable law, rule or regulation.



     Section 9.8 Company’s Reservation of Rights. Employee acknowledges and understands that the
Employee serves at the pleasure of the Board and that the Company has the right at any time to
terminate Employee’s status as an employee of the Company, subject to the rights of the Employee to
claim the benefits conferred by this Agreement.



17









 





     Section 9.9 JURY TRIAL WAIVER. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT.



     Section 9.10 Survival. The rights and obligations of the Company and Employee contained in
Article 6 of this Agreement shall survive the termination of the Agreement. Following the Date of
Termination, each party shall have the right to enforce all rights, and shall be bound by all
obligations, of such party that are continuing rights and obligations under this Agreement.



     Section 9.11 Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the subject matter
hereof. This Agreement may not be amended orally, but only by an agreement in writing by the
parties hereto.



     Section 9.12 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.



     Section 9.13 Section 409A of the Internal Revenue Code. This Agreement is intended to comply
with Section 409A and shall be construed accordingly.



18









 





     IN WITNESS WHEREOF, the Company and the Employee have caused this Agreement to be executed
effective on February 24, 2011.



	 	 	 	 	 	 	 

	 	 	STEWART ENTERPRISES, INC.

	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

James W. McFarland	 	 
	 

	 	 	 	Compensation Committee Chairman	 	 






	 	 	 	 	 

	 

	 	EMPLOYEE:

	 	 
	 	 	   	 	 
	 

	 	Thomas M. Kitchen	 	 






19









 






Appendix A to Employment Agreement

Between Stewart Enterprises, Inc.

and

Thomas M. Kitchen




Base Salary, Bonus Compensation and Benefits




	1.	 	Employee’s title(s) shall be President and Chief Executive Officer, and Employee’s principal
work location shall be the New Orleans, Louisiana metropolitan area. Employee’s Base Salary
shall be $600,000.






	2.	 	Employee shall be eligible to receive a maximum Bonus of 160% of his Base Salary. The
Company may elect to pay a portion of the Bonus in Class A common stock.




3. Employee is expected to comply with the Company’s Executive Stock Ownership Policy.




	 	 	 	 	 	 	 

	 	 	Agreed to and accepted:	 	 
	 
	 	 	 	 	 	 
	 	 	STEWART ENTERPRISES, INC.	 	 
	 
	 	 	 	 	 	 
	Effective Date: February 24, 2011

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	James W. McFarland
Compensation Committee Chairman	 	 
	 
	 	 	 	 	 	 
	 	 	EMPLOYEE	 	 
	 
	 	 	 	 	 	 
	Effective Date: February 24, 2011
	 	 	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Thomas M. Kitchen	 	 






A-1









 





Appendix B to Employment Agreement

between Stewart Enterprises, Inc.

and

Thomas M. Kitchen




Jurisdiction In Which Competition

Is Restricted As Provided

In Article 6 Section 6.3




	A.	 	States and Territories of the United States:
	 
	1)	 	Louisiana—  The following parishes in the State of Louisiana:
	 
	 	 	Orleans, St. Bernard, St. Tammany, Plaquemines, Jefferson, St. Charles, Tangipahoa
	 
	 	 	as well as any other parishes in the State of Louisiana in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	2)	 	Florida—  The following counties in the State of Florida:
	 
	 	 	Seminole, Dade, Hillsborough, Duval, Orange, Pinellas, Indian River, Palm Beach, Volusia,
Lake, Brevard, Broward, Monroe, Collier, Pasco, Manatee, Polk, Hardee, Nassau, Baker, Clay,
St. Johns, St. Lucie, Osceola, Ockeechobee, Martin, Hendry, Marion, Alachua, Putnam, Levy,
Hernando, Citrus, Sumter, Sarasota, DeSoto, Charlotte, Glades
	 
	 	 	as well as any other counties in the State of Florida in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	3)	 	Texas—  The following counties in the State of Texas:
	 
	 	 	Kaufman, Dallas, Collin, Tarrant, Lamar, Harris, Denton, Johnson, Rockwall, Brazoria,
Henderson, Van Zandt, Hunt, Ellis, Fannin, Wise, Parker, Red River, Delta, Galveston,
Ft. Bend, Waller, Montgomery, Liberty, Chambers, Hood, Bosque, Hill, Matagorda, Franklin,
Wharton, Somervell
	 
	 	 	as well as any other counties in the State of Texas in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.




B-1









 






	4)	 	Maryland—  The following counties in the State of Maryland:
	 
	 	 	Baltimore, Baltimore City, Howard, Prince George’s, Anne Arundel, Montgomery, Carroll,
Frederick, Harford, Calvert, Charles, Wicomico, Worcester, Somerset, Dorchester, Washington
	 
	 	 	as well as any other counties in the State of Maryland in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	5)	 	Virginia—  The following counties in the State of Virginia:
	 
	 	 	Chesterfield, Roanoke, Rockingham, Fairfax, Tazewell, Goochland, Pulaski, Albemarle,
Hanover, Henrico, Dinwiddie, Amelia, Powhatan, Charles City, Prince George, Bedford,
Montgomery, Franklin, Botetourt, Craig, Floyd, Augusta, Shenandoah, Page, Greene, Prince
William, Bland, Russell, Fluvanna, Louisa, Wythe, Giles, Carroll, Orange, Buckingham,
Nelson, King William, New Kent, Spotsylvania, Caroline, Buchanan, Loudoun, Arlington,
Scott, Washington, Richmond, Smythe, Frederick, Clarke
	 
	 	 	as well as any other counties in the State of Virginia in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	6)	 	West Virginia—  The following counties in the State of West Virginia:
	 
	 	 	Raleigh, Kanawha, Fayette, Berkeley, Boone, Summers, Wyoming, Clay, Lincoln, Jackson,
Putnam, Roane, Greenbrier, Nicholas, Logan, Wayne, McDowell, Morgan, Jefferson, Mercer,
Mingo, Cabell, Mason, Fayetteville
	 
	 	 	as well as any other counties in the State of West Virginia in which the Employee regularly
(a) makes contact with customers of the Company or any of its subsidiaries, (b) conducts
the business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	7)	 	Puerto Rico—  The following towns in the Commonwealth of Puerto Rico:
	 
	 	 	Canovanas, Carolina, Mayaguez, Yauco, Bayamón, San Juan, Ponce, Caguas, Humacao, San Juan
District, Loiza, Juncos, Gurabo, Trujillo Alto, Guaynabo, Cataño, Juana Díaz, Jayuya,
Peñuelas, Adjuntas, Utuado, Cayey, San Lorenzo, Patillas, Coamo, Guayama, Cidra, Águas
Buenas, Hormigueros, San German, Maricao, Las Marías, Anasco, Comerio, Toa Baja, Toa Alta,
Río Grande, Las Piedras, Guanica, Guayanilla, Sabana Grande, Lares, Naguaba, Yabucoa,




B-2









 






	 	 	as well as any other towns in the Commonwealth of Puerto Rico in which the Employee
regularly (a) makes contact with customers of the Company or any of its subsidiaries, (b)
conducts the business of the Company or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of its subsidiaries as of the Date of
Termination.
	 
	8)	 	North Carolina—  The following counties in the State of North Carolina:
	 
	 	 	Catawba, Wilson, Guilford, Haywood, Johnston, Wake, Nash, Iredell, Burke, Caldwell,
Lincoln, Alexander, Cleveland, Greene, Wayne, Edgecombe, Pitt, Davidson, Randolph, Forsyth,
Stokes, Rockingham, Caswell, Alamance, Jackson, Buncombe, Henderson, Transylvania, Swain,
Madison, Sampson, Franklin, Durham, Harnett, Granville, Chatham, Alleghany, Surry, Ashe,
Watauga, Yadkin, Pamilco, Halifax, Warren, Carteret, Jones, Lenoir, Beaufort, Vance, Lee,
Moore, Cumberland, Davie
	 
	 	 	as well as any other counties in the State of North Carolina in which the Employee
regularly (a) makes contact with customers of the Company or any of its subsidiaries, (b)
conducts the business of the Company or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of its subsidiaries as of the Date of
Termination.
	 
	9)	 	South Carolina—  The following counties in the State of South Carolina:
	 
	 	 	Greenville, Charleston, Aiken, Pickens, Laurens, Spartanburg, Anderson, Abbeville,
Berkeley, Dorchester, Colleton, Edgefield, Saluda, Lexington, Orangeburg, Barnwell,
Richland, Fairfield, Kershaw, Sumter, Calhoun, Newberry, Oconee, Georgetown
	 
	 	 	as well as any other counties in the State of South Carolina in which the Employee
regularly (a) makes contact with customers of the Company or any of its subsidiaries, (b)
conducts the business of the Company or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of its subsidiaries as of the Date of
Termination.
	 
	10)	 	Tennessee—  The following counties in the State of Tennessee:
	 
	 	 	Davidson, Sumner, Robertson, Knox, Sullivan, Sevier, Wilson, Rutherford, Williamson,
Cheatham, Trousdale, Macon, Jefferson, Grainger, Union, Anderson, Loudon, Blount, Roane,
Greene, Washington, Carter, Johnson, Hawkins, Cocke, Cannon, Dekalb, Smith, Hamblen,
Unicoi, Giles, Lincoln, Cooke, Kingsport
	 
	 	 	as well as any other counties in the State of Tennessee in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.




B-3









 






	11)	 	Arkansas—  The following counties in the State of Arkansas:
	 
	 	 	Saline, Pulaski, Hot Spring, Garland, Perry, Grant, Lonoke, Jefferson, Faulkner, Dallas,
Clark, Montgomery, Van Buren, Cleburne, Conway, Ouachita
	 
	 	 	as well as any other counties in the State of Arkansas in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	12)	 	Georgia— The following counties in the State of Georgia:
	 
	 	 	Cobb, Cherokee, Henry, Dekalb, Fulton, Douglas, Paulding, Bartow, Pickens, Forsyth, Dawson,
Gordon, Clayton, Rockdale, Newton, Butts, Spalding, Gwinnett, Fayette, Coweta, Carroll,
Richmond
	 
	 	 	as well as any other counties in the State of Georgia in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	13)	 	Alabama—  The following counties in the State of Alabama:
	 
	 	 	Mobile, Madison, Baldwin, Monroe, Washington, Jackson, Marshall, Morgan, Limestone, Clarke,
Elmore, Montgomery, Macon, Coosa, Tallapoosa, Autauga, Chilton, Walker, Jefferson, Blount,
Cullman, Winston, Tuscaloosa, Fayette, Marion, Wilcox, Marengo, Choctaw, Bibb, Talladega,
St. Clair, Shelby, Perry, Hale
	 
	 	 	as well as any other counties in the State of Alabama in which the Employee regularly (a)
makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its subsidiaries or (c)
supervises the activities of other employees of the Company or any of its subsidiaries as
of the Date of Termination.
	 
	14)	 	Mississippi—  The following counties in the State of Mississippi:
	 
	 	 	Hinds, Madison, Rankin, Simpson, Copiah, Claiborne, Warren, Yazoo, Jackson, George
	 
	 	 	as well as any other counties in the State of Mississippi in which the Employee regularly
(a) makes contact with customers of the Company or any of its subsidiaries, (b) conducts
the business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	15)	 	Pennsylvania—  The following counties in the State of Pennsylvania:
	 
	 	 	Montgomery, Philadelphia, Bucks, Delaware, Chester, Berks, Lehigh, Northampton, York




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	 	 	as well as any other counties in the State of Pennsylvania in which the Employee regularly
(a) makes contact with customers of the Company or any of its subsidiaries, (b) conducts
the business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	16)	 	Kentucky—  The following counties in the State of Kentucky:
	 
	 	 	Pike, Martin, Floyd, Knott, Letcher, Allen
	 
	 	 	as well as any other counties in the State of Kentucky in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	17)	 	The District of Columbia
	 
	18)	 	Kansas— The following counties in the State of Kansas:
	 
	 	 	Douglas, Leavenworth, Johnson, Miami, Franklin, Wyandotte, Sedgwick, Cowley, Sumner,
Butler, Harvey, Reno, Kingman
	 
	 	 	as well as any other counties in the State of Kansas in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries
or (c) supervises the activities of other employees of the Company or any of its
subsidiaries as of the Date of Termination.
	 
	19)	 	Missouri— The following counties in the State of Missouri:
	 
	 	 	Boone, Audrain, Callaway, Cole, Cooper, Howard, Moniteau, Randolph, Jackson, Lafayette,
Johnson, Cass, Clay, Ray, Platte, Clinton, Morgan, Pettis, Saline, Carroll
	 
	 	 	as well as any other counties in the State of Missouri in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	20)	 	Nebraska— The following counties in the State of Nebraska:
	 
	 	 	Lancaster, Otoe, Sarpy, Gage, Saline, Seward, Saunders, Cass, Butler, Douglas, Washington,
Dodge, Johnson
	 
	 	 	as well as any other counties in the State of Nebraska in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.




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	 	 	Employee and the Company agree that, throughout the Employment Term, Employee shall comply
with all of the requirements and restrictions set forth in Article 7 of the Agreement of
which this Appendix B forms a part; however, Employee and the Company agree that,
notwithstanding anything to the contrary contained in Article 7, Section 3 of the
Agreement, Employee shall be required to restrict his post-employment activities in
the State of Nebraska only to: (i) complying with the restrictions set forth in Article 7,
Section 2 of the Agreement and (ii) refraining from calling upon any customer of the
Company or its subsidiaries with whom Employee has done business and/or had personal
contact for the purpose of soliciting, diverting or enticing away the business of such
person or entity, or otherwise disrupting any previously established relationship existing
between such person or entity and the Company or its subsidiaries. The parties hereby
acknowledge and agree that this modification to the restrictions of Article 7, Section 7.3
as they relate to post-employment competition in the State of Nebraska is being entered
into solely to comply with the limitations provided in Nebraska law on the extent to which
non-competition agreements may be enforced. This modification does not reflect the parties’
agreement as to the extent of the limitations upon competition necessary to protect the
legitimate interests of the Company; rather, the provisions of Article 7 of the Agreement
reflect such agreement.
	 
	21)	 	Iowa— The following county in the State of Iowa:
	 
	 	 	Polk, Jasper, Marion, Warren, Madison, Dallas, Story, Boone, Pottawattamie
	 
	 	 	as well as any other counties in the State of Iowa in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	22)	 	Nevada— The following counties in the State of Nevada:
	 
	 	 	Clark, Washoe, Douglas, Carson City
	 
	 	 	as well as any other counties in the State of Nevada in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	23)	 	Arizona— The following counties in the State of Arizona:
	 
	 	 	Mohave, La Paz
	 
	 	 	as well as any other counties in the State of Arizona in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.




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	24)	 	Oregon— The following counties in the State of Oregon:
	 
	 	 	Josephine, Washington, Douglas, Curry, Jackson, Klamath, Clatsop, Columbia, Multnomah,
Clackamas, Yamhill, Tillamook
	 
	 	 	as well as any other counties in the State of Oregon in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	25)	 	California—  The following counties in the State of California:
	 
	 	 	Glenn, Plumas, Sutter, Yuba, Colusa, Tehama, Fresno, San Mateo, Contra Costa, San Joaquin,
Stanislaus, Santa Clara, Mariposa, Orange, San Bernardino, Kern, Ventura, Inyo, Riverside,
Los Angeles, Monterey, Kings, Santa Barbara, Madera,
Tulare, San Benito, Merced, San Luis Obispo, Nevada, Alameda, Sacramento, El Dorado,
Amador, Yolo, Solano, San Diego, Imperial, Sonoma, Napa, Lake, Marin, Santa Cruz,
Calaveras, Placer, Butte, Mendocino, San Francisco, Mono, Tuolumne, Del Norte, Siskiyou
	 
	 	 	as well as any other counties in the State of California in which the Employee regularly
(a) makes contact with customers of the Company or any of its subsidiaries, (b) conducts
the business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	 	 	Employee and the Company agree that, throughout the Employment Term, Employee shall comply
with all of the requirements and restrictions set forth in Article 7 of the Agreement of
which this Appendix B forms a part; however, Employee and the Company agree that,
notwithstanding anything to the contrary contained in Article 7, Section 7.2 or 7.3 of the
Agreement, Employee shall be required to restrict his post-employment activities in
the State of California only to: (i) complying with the restrictions set forth in Article
7, Section 7.2 of the Agreement to the extent that Confidential Information constitutes a
trade secret under California law and (ii) complying with the restrictions set forth in
Article 7, Sections 7.3(c) and 7.3(d) of the Agreement. The parties hereby acknowledge and
agree that these modifications to the restrictions of Article 7, Sections 7.2 and 7.3 as
they relate to post-employment disclosure and competition in the State of California are
being entered into solely to comply with the limitations provided in California law on the
extent to which nondisclosure and noncompetition agreements may be enforced. These
modifications do not reflect the parties’ agreement as to the extent of the limitations
upon disclosure and competition necessary to protect the legitimate interests of the
Company; rather, the provisions of Article 7 of the Agreement reflect such agreement.
	 
	27.	 	Illinois—  The following counties in the State of Illinois:
	 
	 	 	Cook, Lake, McHenry, Kane, DuPage, Will




B-7









 






	 	 	as well as any other counties in the State of Illinois in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	28.	 	Washington—  The following counties in the State of Washington:
	 
	 	 	King, Snohomish, Kittitas, Pierce, Kitsap, Skagit, Chelan, Island
	 
	 	 	as well as any other counties in the State of Washington in which the Employee regularly
(a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its subsidiaries or (c)
supervises the activities of other employees of the Company or any of its subsidiaries as
of the Date of Termination.
	 
	29.	 	Wisconsin—  The following counties in the State of Wisconsin:
	 
	 	 	Waukesha, Dodge, Ozaukee, Jefferson, Washington, Racine, Walworth, Milwaukee, Winnebago,
Fond du Lac, Green Lake, Calumet, Waushara, Outagamie, Waupaca, Kenosha, Brown, Shawano,
Oconte, Kewaunee
	 
	 	 	as well as any other counties in the State of Wisconsin in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	30.	 	Ohio—  The following counties in the State of Ohio:
	 
	 	 	Monroe, Harrison, Noble, Belmont, Licking, Jefferson, Guernsey, Fairfield, Muskingum,
Perry, Knox, Delaware, Franklin, Coshocton
	 
	 	 	as well as any other counties in the State of Ohio in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.
	 
	31.	 	New Jersey—  The following counties in the State of New Jersey:
	 
	 	 	Burlington, Mercer, Hunterdon
	 
	 	 	as well as any other counties in the State of New Jersey in which the Employee regularly
(a) makes contact with customers of the Company or any of its subsidiaries, (b) conducts
the business of the Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or any of its subsidiaries as of the Date of Termination.




B-8









 






	B.	 	Acknowledgment
	 
	 	 	The Company and Employee acknowledge that Employee’s voluntary compliance with Article 6,
Sections 6.2 and 6.3 constitutes a significant part of the consideration for the Company’s
agreement to make the payments specified in Article 4 and 5. Therefore, the Company and
Employee acknowledge that it is the intent of this Agreement that if Employee engages in
conduct described as prohibited conduct in Article 6 Section 6.2 or 6.3, the Company may
suspend or eliminate payments under Article 4, including Section 4.4 of Article 4, and
Article
5, including Section 5.4 of Article 5, during the period of such conduct, even if the
parties’ contractual prohibitions on such conduct are determined to be invalid, illegal or
unenforceable under applicable law.
	 
	 	 	Furthermore, the parties acknowledge that any provision in this Appendix B that permits
Employee to engage, after the Date of Termination, in a particular jurisdiction, in conduct
otherwise prohibited by Article 6 Section 6.2 or 6.3 (for example, as in California and
Nebraska) has been agreed to solely in order to comply with the limitations provided in the
law of that jurisdiction on the extent to which nondisclosure and noncompetition agreements
may be enforced. Therefore, the parties acknowledge that, although Employee may be
permitted pursuant to this Appendix B to engage, after the Date of Termination, in certain
jurisdictions (such as California and Nebraska), in conduct otherwise prohibited by Article
6 Section 6.2 or 6.3, if Employee does engage in conduct prohibited by the provisions of
Article 6 Section 6.2 or 6.3 (as such provisions appear in the Agreement without giving
effect to any modifications to such provisions made by this Appendix B), Employee will
forfeit his or her right to payments under Article 4, including Section 4.4 of Article 4,
and Article 5, including Section 5.4 of Article 5, during the period of such conduct.





Agreed to and Accepted:




	 	 	 	 	 	 	 
	Stewart Enterprises, Inc.	 	Employee	 	 
	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	James W. McFarland
	 	Effective Date: February 24, 2011
	 	 
	 

	 	Compensation Committee Chairman	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Effective Date: February 24, 2011	 	 	 	 







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