<PAGE>
Exhibit 10.21
AMENDED AND RESTATED
STEWART ENTERPRISES, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PREAMBLE
Stewart Enterprises, Inc. (the "EMPLOYER" or "COMPANY"), a
corporation
organized and existing under the laws of the State of Louisiana,
acting through
the Compensation Committee of the Board of Directors, pursuant to
the authority
delegated to it regarding executive compensation, and desiring to
adopt an
unfunded nonqualified plan to provide for the payment of pension
benefits to a
select group of highly-compensated management employees, hereby
restates the
Stewart Enterprises, Inc. Supplemental Executive Retirement Plan
(the "Plan"),
effective January 1, 2008. The Plan was originally adopted
effective April 1,
2002 and was amended effective May 2, 2005 and June 17, 2008.
ARTICLE
1
PURPOSE OF THE PLAN
The
Employer intends and desires by the adoption of this Plan to
recognize
the value to the Employer of past and present services of certain
employees, and
to encourage their continued service with the Employer by making
provisions for
their future retirement security.
ARTICLE 2
ADMINISTRATION
The
Compensation Committee of the Board of Directors of the Employer
shall
be the Plan Administrator. The Plan Administrator shall have full
power and
authority to interpret, construe and administer this Plan, and
its
interpretations and constructions hereof and actions hereunder,
including the
timing, form, amount or receipt of any payment to be made
hereunder, within the
scope of its authority, shall be binding and conclusive on all
persons for all
purposes. No member of the Compensation Committee shall be liable
to any person
in connection with the interpretation or administration of the
Plan, and the
Employer shall indemnify each member of the Compensation Committee
for any
liability that the member might incur, except that a member of the
Compensation
Committee shall be responsible for the consequences of his or her
own willful
misconduct or bad faith. The Plan Administrator may delegate
its
responsibilities hereunder to one or more employees of the
Employer, but no
person shall participate in any action or determination regarding
his or her own
benefits hereunder.
ARTICLE 3
DEFINITIONS
1.
409A CHANGE OF CONTROL means a Change of Control that constitutes
a
change in the ownership or effective control of the Company or a
change in the
ownership of a substantial portion of the assets of the Company as
such terms
are defined in Treas. Reg. Section 1.409A-3(i)(5).
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2.
An ACTUARIALLY EQUIVALENT benefit means a benefit having the same
value
as the benefit to which it is compared. Actuarial equivalence shall
be
determined using the GAR 94 unisex mortality table and the annual
interest rate
on 30-year Treasury securities for the month prior to the calendar
year for
which the determination is to be made.
3.
ANNUITY STARTING DATE means, for a Participant eligible for a
benefit,
the first regular bi-weekly payroll date of the Employer that
occurs after the
date that is at least six months following the Participant's
Termination of
Employment, except that if the Participant's Termination of
Employment is
because of death, the Annuity Starting Date shall be the first
regular bi-weekly
payroll date of the second month following the month in which the
Participant
dies. The first payment made on the Annuity Starting Date shall be
equal to the
total of the bi-weekly pension payments that the Participant would
have received
if a payment had been made starting with the first regular
bi-weekly payroll
date of the second month following the month in which the
Participant's
Termination of Employment occurred, through the Annuity Starting
Date, or, in
effect, a catch up payment.
4.
BENEFICIARY means any of the following;
(a) In the case of a 10-Years-Certain-and-Life Annuity (including
a
pre-retirement death benefit under Paragraph 1(b) of Article 6),
the person or
persons designated by the Participant (on his or her Benefit
Election Form) to
receive the remainder of the guaranteed bi-weekly payments if the
Participant
dies before the end of the payout period. If no person is
effectively named by
the Participant as the Beneficiary, the Beneficiary shall be the
Participant's
surviving spouse, if any, and otherwise the Participant's heirs or
legatees. If
a Beneficiary dies after the Participant but before full payment
has been made,
the share of the remaining payments that would have been paid to
the Beneficiary
if he or she had survived shall be paid to the person or persons
who would have
received that share of the benefit if the Beneficiary had
predeceased the
Participant.
(b) In the case of a Joint-and-Survivor Annuity, the person named
by
the Participant (on his or her Benefit Election Form) as his or her
joint
annuitant, if that person survives the Participant.
5.
BENEFIT ELECTION FORM means the form set forth as Exhibit A, or
any
successor form provided by the Plan Administrator, on which the
Participant
elects the manner in which his or her benefit under the Plan will
be paid.
6.
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,
2
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(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 6; or
(b) individuals who, as of the date of approval of this amendment
and
restatement of the Plan by the Compensation Committee of the Board
of Directors
(September 15, 2008) (the "Approval Date"), constitute the Board
(the "Incumbent
Board") cease for any reason to constitute at least a majority of
the Board;
provided, however, that any individual becoming a director
subsequent to the
Approval Date whose election, or nomination for election by the
Company's
shareholders, was approved by a vote of at least a majority of the
directors
then comprising the Incumbent Board shall be considered a member of
the
Incumbent Board, unless such individual's initial assumption of
office occurs as
a result of an actual or threatened election contest with respect
to the
election or removal of directors or other actual or threatened
solicitation of
proxies or consents by or on behalf of a person other than the
Incumbent Board;
or
(c) consummation of a reorganization, merger or consolidation, or
sale
or other disposition of all 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.
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7.
EARLIEST RETIREMENT DATE means, for each of the nine initial
Participants named in Paragraph 12, below, the Participant's 55th
birthday. For
any additional Participant, unless otherwise specifically provided
herein, the
Earliest Retirement Date means the latest to occur of (a) the
Participant's 55th
birthday, (b) the Participant's completion of 10 years of
employment with the
Employer, or (c) completion of the Participant's 5th year of
participation in
the Plan. A Participant's participation in the Plan shall be deemed
to begin on
the date on which he or she is designated as a Participant, and a
Participant's
first year of participation is the year ending on the first
anniversary of such
date.
8.
FINAL AVERAGE PAY means a Participant's average monthly base salary
for
the 36 full months immediately preceding the Participant's
Termination of
Employment. If a Participant is employed with the Company for less
than 36
months, then Final Average Pay means the average monthly base
salary for all
months of employment. Monthly base salary is determined by dividing
annual base
salary by 12. Base salary does not include accrued vacation pay,
auto allowance
or any salary increase made in lieu of providing Company-paid
health insurance.
9.
NORMAL FORM of benefit means a bi-weekly pension commencing on
the
Participant's Annuity Starting Date, and paid on each regular
bi-weekly payroll
date of the Employer thereafter, terminating with the payment made
on the last
regular payroll date in the month of the Participant's death. No
death benefit
is payable under the Normal Form.
10.
NORMAL RETIREMENT DATE means the first day of the month coincident
with
or immediately following a Participant's 65th birthday.
11.
OPTIONAL FORM of benefit means either the
10-Years-Certain-and-Life
Annuity or the Joint-and-Survivor Annuity, described at Section 3
of Article 4,
below.
12.
PARTICIPANT means Thomas J. Crawford, Thomas M. Kitchen, each of
the
executives of the Employer who were initial Participants listed
below as a Class
A Participant or a Class B Participant, and each executive added to
either list
hereafter by action of the Plan Administrator:
<TABLE>
<CAPTION>
CLASS A
CLASS B
-------
------------------------
<S>
<C>
William E. Rowe Brent F.
Heffron
Brian J. Marlowe Randall L.
Stricklin
Kenneth C. Budde G. Kenneth Stephens,
Jr.
Everett N. Kendrick
Lawrence B. Hawkins
Michael K. Crane
</TABLE>
13.
SECTION 409A means Section 409A of the Internal Revenue Code and
all
regulations and guidance issued thereunder.
14.
TERMINATION OF EMPLOYMENT means the termination of the employment
of a
Participant with the Employer that constitutes a "separation from
service" under
Section 409A.
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15.
VESTED PARTICIPANT means Mr. Kitchen, Mr. Crawford, and any
Participant
who has reached his or her Earliest Retirement Date.
ARTICLE 4
NORMAL RETIREMENT BENEFIT
1.
Upon the Termination of Employment of a Class A or Class B
Participant
on or after his or her 65th birthday, the Participant shall be
entitled to a
Normal Retirement Benefit (as defined in Article 4.2) commencing on
his or her
Annuity Starting Date. Thomas J. Crawford and Thomas M. Kitchen
shall be
entitled to a Normal Retirement Benefit beginning on the Annuity
Starting Date
following a Termination of Employment after completing ten or more
years of
service as an employee of the Company.
2.
For a Class A Participant, the Normal Retirement Benefit paid in
the
Normal Form shall be 50% of Final Average Pay. For Thomas M.
Kitchen, Thomas J.
Crawford and any Class B Participant, the Normal Retirement Benefit
paid in the
Normal Form shall be 40% of Final Average Pay.
3.
Instead of payment in the Normal Form, a Participant entitled to
receive
a Normal Retirement Benefit may elect to receive the benefit in
either of the
following two Optional Forms:
(a) As a Joint-and-Survivor Annuity, as follows: a pension is paid
to
the Participant, with the first payment on his or her Annuity
Starting Date
determined as set forth in the definition of "Normal Form,"
continuing with
regular bi-weekly payment amounts on each regular bi-weekly payroll
date of the
Employer, and terminating with the payment on the last regular
bi-weekly payroll
date of the Employer in the month of the Participant's death; and
if the joint
annuitant named by the Participant as of the Annuity Starting Date
survives the
Participant, the amount that would have been paid on each bi-weekly
payroll date
to the Participant will be continued and paid to the joint
annuitant on each
regular bi-weekly payroll date, terminating with the payment on the
last regular
bi-weekly payroll date in the month of the joint annuitant's
death.
(b) As a 10-Years-Certain-and-Life Annuity, as follows: a benefit
is
paid to the Participant, with the first payment on his or her
Annuity Starting
Date determined as set forth in the definition of "Normal Form,"
continuing with
regular bi-weekly payment amounts on each regular bi-weekly payroll
date of the
Employer and terminating with the later of the payment on the last
regular
bi-weekly payroll date in the month of the Participant's death or
in the month
in which the ten-year payment period terminates. If the Participant
dies prior
to the end of the ten-year payment period, the remainder of the
scheduled
bi-weekly payments are made to the Participant's Beneficiary.
4.
The form of pension payment must be elected by a Participant prior
to
his or her Termination of Employment. If a Participant makes no
election within
the time period described herein, the benefit shall be paid in the
Normal Form.
5. A
Participant's pension paid in an Optional Form shall be
Actuarially
Equivalent to the pension paid in the Normal Form.
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ARTICLE 5
OTHER PARTICIPANT BENEFITS
1. A
Class A or Class B Participant whose Termination of Employment
occurs
on or after his Earliest Retirement Date is entitled to an Early
Retirement
Benefit, commencing at the Participant's Annuity Starting Date. The
Early
Retirement Benefit shall be determined in the same manner as a
Normal Retirement
Benefit, reduced, however, by 5% for each full year (and 1/26 of 5%
for each
full two-week pay period of a partial year) that the Termination of
Employment
precedes the Normal Retirement Date. As a result, the percentage of
Final
Average Pay that will be paid to a Class A or Class B Participant
whose
Termination of Employment occurs on his 55th through 65th birthdays
is as
follows:
<TABLE>
<CAPTION>
AGE CLASS
A CLASS
B
---
--------
-------
<S>
<C>
<C>
55 25.0%
20.0%
56 27.5%
22.0%
57 30.0%
24.0%
58 32.5%
26.0%
59 35.0%
28.0%
60 37.5%
30.0%
61 40.0%
32.0%
62 42.5%
34.0%
63 45.0%
36.0%
64 47.5%
38.0%
65 50.0%
40.0%
</TABLE>
2. A
Class A or Class B Participant who terminates employment prior to
his
or her Earliest Retirement Date is not eligible to receive a
benefit under the
Plan.
3.
Mr. Kitchen's retirement benefit, commencing at the Annuity
Starting
Date, shall be a percentage of his Final Average Pay, which shall
be calculated
according to the following schedule, with pro rata additions for
each full
two-week pay period in a partial year of service:
<TABLE>
<CAPTION>
Years of Service % of Final Average
Pay
----------------
----------------------
<S>
<C>
<1
0%
1
4%
2
8%
3
12%
4
16%
5
20%
6
24%
7
28%
8
32%
9
36%
10 or more
40%
</TABLE>
6
<PAGE>
4.
Mr. Crawford's retirement benefit, commencing at the Annuity
Starting
Date, shall be a percentage of his Final Average Pay, which shall
be calculated
according to the following schedule, with pro rata additions for
each full
two-week pay period in a partial year of service:
<TABLE>
<CAPTION>
Years of Service % of Final Average
Pay
----------------
----------------------
<S>
<C>
1
4%
2
8%
3
12%
4
16%
5
20%
6
24%
7
28%
8
32%
9
36%
10
or more
40%
</TABLE>
5.
If a Participant in the Plan terminates employment and is
subsequently
re-employe
