EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as
of January ___, 1997 between THE YORK GROUP, INC., a Delaware corporation
("Employer"), and XXXXXX X. XXXXXXX ("Employee").
WHEREAS, Employee has been an employee of Houston Casket Company dba
York Southwest, a Texas corporation ("Houston Casket") and North Texas Casket
Company, a Texas corporation ("NTCC"), which are being acquired by Employer
pursuant to an Asset Purchase Agreement dated as of November 27, 1996;
WHEREAS, Employee is one of a limited number of persons instrumental in
the development of the business of Houston Casket and NTCC;
WHEREAS, Employer desires to entrust Employee with access to certain
Confidential Information (as hereinafter defined) concerning the Employer's
business and the relationships between the Employer and its customers, but only
if Employee agrees and covenants not to use or disclose such Confidential
Information in competition with Employer;
WHEREAS, Employee recognizes that Employer will not entrust such
Confidential Information to him unless he agrees to the terms of this Agreement;
and
WHEREAS, Employer and Employee recognize that the agreements and
covenants contained in this Agreement are essential to protect the business of
the Employer.
NOW, THEREFORE, in consideration of the premises and the agreements
herein contained, the receipt and sufficiency of which are hereby acknowledged,
Employer and Employee hereby agree, as follows:
1. EMPLOYMENT. Employer agrees to employ Employee and Employee agrees to
act as an employee of Employer. Employee hereby accepts such employment on the
terms and conditions set forth in this Agreement. Employee agrees to provide
such other services commensurate with such capacity as may be determined by the
Employer.
2. EXTENT OF SERVICES. During the time that Employee is employed by Employer,
Employee shall devote his full business time and efforts to the performance of
his duties hereunder, except that Employee may attend to his personal
investments to the extent such activities do not interfere with his duties
hereunder. Employee hereby agrees and represents that his employment, and the
performance of his duties as required by this Agreement, do not violate any
agreements or relationships existing between Employee and any other person.
Employer agrees that the principal office location of Employee shall be in
Houston, Texas and that Employee shall not be required to change such principal
office location without his prior written consent.
3. TERM OF EMPLOYMENT. Employee's employment shall commence as of the
effective date hereof (the "Effective Date") and shall continue (unless sooner
terminated as provided in Section 8 hereof) for a period of 5 years from the
Effective Date.
4. POSITION AND RESPONSIBILITIES. Employee will be engaged by Employer
in said capacity to provide such services as may be determined by the Chief
Executive Officer and the Board of Directors of Employer from time to time.
5. ACCESS TO CONFIDENTIAL INFORMATION. Employer agrees to provide
Employee with access to the Confidential Information (as defined below) and with
any specialized training necessary to enable Employee to perform the duties
assigned to him by Employer pursuant to this Agreement.
6. COMPLIANCE WITH RULES. Employee agrees to observe and comply with the
lawful rules and regulations of Employer as adopted by Employer from time to
time with respect to the performance of Employee's duties, and to carry out and
to perform lawful orders, rules, directions, and policies announced to Employee
by Employer.
7. COMPENSATION AND BENEFITS. Employer shall pay Employee, for all
services of Employee pursuant to this Agreement and any other duties assigned to
him by Employer, an annual base salary of $150,000 per year which shall be
payable in accordance with Employer's customary payroll practices with respect
to amount, time, and manner of payment. Such base salary may not be decreased
but may be increased from time to time during the term hereof in the sole
discretion of Employer. During the term of this Agreement, Employer shall
provide Employee such benefits as are made generally available to employees of
equal position and salary on the same basis as Employer makes such benefits
available to Employer's other employees. Employee shall be eligible to
participate in Employer's executive bonus plan and 1996 Employee Stock Option
Plan, any such awards to be determined by Employer's executive management and
the Compensation Committee of the Board of Directors. Employer shall reimburse
Employee for business usage of personal automobiles and shall reimburse Employee
for other reasonable business expenses in accordance with Employer's policy from
time to time. Employer shall pay Employee's country club membership dues not in
excess of $_____________ per month and will reimburse Employer for business
usage of such country club.
8. TERMINATION OF EMPLOYMENT. Employee's employment shall be terminated
upon the occurrence of any one or more of the following events:
(a) Employer gives written notice of termination for cause to
Employee. For purposes of this Agreement, "cause" shall mean solely the
following:
(i) Employee without proper legal cause has failed or
refused to
use his best efforts to follow the lawful directions of
the Board of Directors;
(ii) Employee has been convicted of, or has pleaded guilty
or nolo contendere to a charge that he committed, a felony
involving moral turpitude;
(iii) Employee has perpetrated a fraud against, or theft
of property of, Employer or any affiliate thereof;
(iv) Employee has violated any applicable federal or state
law or regulation and, as a result of such violation, has
become, or has caused Employer to become, the subject of
any legal action or administrative proceeding or a
suspension of any right or privilege;
(v) Employee has committed any act that causes, or shall
knowingly or recklessly fail to take reasonable and
appropriate action to prevent, any material injury to the
financial condition or business reputation of Employer; or
(vi) Employee has violated any of the material provisions
of any noncompetition or nondisclosure agreement with
Employer.
With respect to the events described in subparagraphs (i), (v) and (vi),
Employer shall provide to Employee written notice of such an event and provide
Employee with a reasonable period of time not exceeding 30 days from the date of
such notice to endeavor to cure or remedy such event.
(b) Death of Employee.
(c) Disability of Employee. For purposes of this Agreement,
"disability" shall mean a mental or physical condition resulting from an
injury or illness which shall render Employee incapable of performing
the essential functions of his position with reasonable accommodations
from Employer for 90 days out of any 120 day period.
(d) Resignation of Employee, who hereby agrees to provide not
less than 60 days' prior written notice of such resignation to Employer.
(e) Employer may terminate this Agreement without cause, but in
such event Employer shall pay to Employee his base salary for the
remainder of the five-year term hereof.
9. CONFIDENTIALITY; NON-SOLICITATION.
(a) In the course of performing his duties for Employer, Employee
acknowledges that he will have access to certain proprietary information
of the Employer, including but not limited to: the database of customer
accounts; customer, supplier and distributor lists of Employer; customer
profiles; information regarding sales and marketing activities and
strategies of Employer; trade secrets of Employer; data regarding
technology, products and services of Employer; information regarding
pricing, pricing techniques and procurement by Employer; financial data
regarding Employer and
customers, suppliers and distributors of Employer; software programs;
and other sales, marketing, technical and financial information and
know-how (collectively "Confidential Information"). Employee further
acknowledges that this Confidential Information is a valuable, special
and unique asset of Employer and that his access to and knowledge of the
Confidential Information is essential to the performance of his duties
as an Employee of Employer. In light of the competitive nature of the
business in which Employer is engaged, Employee agrees that, so long as
such information is not otherwise available to the public or required by
a governmental authority to be disclosed, he will maintain the strict
confidentiality of all Confidential Information known or obtained by him
or to which he has access in connection with his employment by Employer
and that he will not (i) disclose any Confidential Information to any
person or entity, or (ii) make any use of any Confidential Information
for his own purposes or for the direct or indirect benefit of any person
or entity other than Employer without the express prior written consent
of Employer. The agreements contained in this Section 9(a) shall survive
the termination of this Agreement.
(b) Employee agrees that all documents, records, notes, forms,
manuals, notebooks, drawings, reports, books and other documents of any
nature, or copies thereof, pertaining to the business or operations of
Employer and received or made by Employee or made known to him in any
manner in connection with his employment by Employer and any other
Confidential Information are and will be the exclusive property of
Employer. Employee agrees not to copy or remove any of such Confidential
Information from the premises and custody of Employer except as
expressly agreed by Employer, or to disclose the contents thereof to any
person or entity. Employee acknowledges that all such Confidential
Information will be subject to the control of Employer, and Employee
agrees to surrender same upon the request of Employer and that he will
surrender same immediately upon any termination of his employment with
Employer for any reason.
(c) In furtherance of the agreements contained in Section 9(a)
hereof, from the date hereof and for a period of two (2) years after
Employee's employment with Employer is terminated for any or no reason,
Employee, on behalf of himself and his present and future affiliates and
employers, agrees not to and shall not directly or indirectly (i) in the
States of Texas, Louisiana or New Mexico, whether as owner, partner,
joint venturer, lender, shareholder, director, officer, employee,
consultant or otherwise, engage, invest or participate in any business
engaged in the design, sale, marketing, manufacture or distribution of
metal and hardwood caskets or casket components, or otherwise previously
conducted by Employer, Houston Casket or NTCC, except by owning for
investment purposes only less than 3% of the publicly traded stock of a
company conducting any of the businesses referenced hereunder, (ii)
compete for or solicit any of the business conducted by Employer from
any customer of Employer, (iii) induce any customer of Employer to
patronize any other entity engaged in any of the businesses conducted by
Employer or request or advise any such customer to withdraw, curtail or
cancel any such customer's business with Employer, or (iv) solicit the
employment or services of, or cause or attempt to cause to leave the
employment or services of Employer or any affiliate of Employer, any
person employed by, or otherwise engaged to perform services for
Employer or any affiliate of Employer (whether in the capacity of
employee, consultant, independent contractor or otherwise).
(d) In the event of a breach or threatened breach by Employee of
the
provisions of any provision of this Section 9, Employer shall be
entitled to temporary or permanent injunctions and other appropriate
relief restraining Employee from using, disclosing or retaining, in
whole or in part, such Confidential Information and from violating the
terms of Section 9(c). Employee hereby waives any requirement that
Employer post any bond in connection with obtaining any such relief.
Nothing herein shall be construed as prohibiting Employer from pursuing
any other remedies available to it.
(e) Employee recognizes, agrees and represents that Employer
would not permit Employee to access Employer's Confidential Information
or provide any specialized training unless Employee agrees to the
restrictions contained herein, and that Employer is relying on the
agreements of Employee contained in this Agreement in permitting
Employee access to the Confidential Information. Employee represents
that being permitted to access the Confidential Information, the
specialized training and the compensation described in this Agreement
constitutes significant and valuable consideration for his agreements
hereunder. Employee has read and considered the provisions of this
Section 9 and, having done so, agrees, states, and covenants that the
restrictions on competition set forth herein are fair and reasonable as
to time, geographical area, and scope of activities to be restrained,
and are reasonably required for the protection of the goodwill and other
business interests of Employer. In the event a court of competent
jurisdiction determines as a matter of law that any of the terms of
Section 9 are unreasonable or overbroad, the parties expressly allow
such court to reform this agreement to the extent necessary to make it
reasonable as a matter of law and to enforce it as so reformed.
10. NOTICES. Any notice required or desired to be given under this
Agreement shall be deemed given if in writing and mailed, facsimilied, or
delivered to Employer at The York Group, Inc., 0000 Xxx Xxxx Xxxx, Xxxxxxx,
Xxxxx 00000, Facsimile: (000) 000-0000, and to Employee at the address set forth
on the signature page hereof.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties regarding the employment of Employee by Employer and supersedes any
prior agreement, arrangement or understanding, whether oral or written, between
Employer and Employee concerning Employee's employment hereunder.
12. CHOICE OF LAW. This Agreement shall be governed by, and enforced
according to, the laws of the State of Texas. The invalidity of any provision
shall be automatically reformed to the extent permitted by applicable law and
shall not affect the enforceability of the remaining provisions hereof. Employee
hereby waives any objection which he may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this
Agreement brought in the District Court of Xxxxxx County, State of Texas, or in
the United States District Court for the Southern District of Texas, Houston
Division, and hereby further waives any claims that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
13. ASSIGNMENTS. The rights and obligations under this Agreement of the
Employer and Employee may not be assigned, except that Employer may, at its
option, assign one or more of its rights or obligations under this Agreement to
any of its subsidiaries or affiliates, or in connection with a transfer of all
or substantially all of the assets or stock of Employer or a merger or
consolidation of Employer with and into another corporation or other entity,
provided
that in each case Employer shall remain responsible for its obligation
hereunder.
14. COUNTERPARTS. This Agreement may be executed in several identical
counterparts, and by the parties hereto on separate counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such separate counterparts shall constitute but one and the
same instrument.
15. MODIFICATION; TERMINATION. This Agreement may be modified only by
written agreement signed by Employee and by the President of Employer. The
failure to insist upon compliance with any provision hereof shall not be deemed
a waiver of such provision or any other provision hereof.
16. OTHER AGREEMENTS. The parties hereto expressly agree that the
provisions and covenants of this Agreement shall be in addition to and shall not
supersede or replace any similar provisions or covenants in any other contracts
or agreements between the parties.
IN WITNESS WHEREOF, this Agreement is executed by the parties as of the
day and year first above written.
THE YORK GROUP, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
____________________________________
Xxxxxx X. Xxxxxxx
Address of Employee
00 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile:__________________________
