EXHIBIT 10.29
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is entered into by and between
Rose Hills Company (the "Company") and Xxxxx Xxxxxxxxxx ("Executive"), as of the
11/th/ day of May 2001.
I. EMPLOYMENT.
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The Company hereby employs Executive and Executive hereby accepts such
employment, upon the terms and conditions hereinafter set forth. This Agreement
shall continue in effect without interruption until 12/31/02 or until earlier
termination by its terms (See Article IV).
II. DUTIES.
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A. Executive shall serve during the course of Executive's employment as
Executive Vice-President, Sales and Marketing, and shall have such other duties
and responsibilities, as the President of the Company shall determine from time
to time.
B. Executive agrees to devote substantially all of Executive's time,
energy and ability to the business of the Company (which shall include in
addition to items under paragraph II.A, participation in memorial industry trade
association activities).
C. For the term of this Agreement, Executive shall report to the Chief
Executive Officer of the Company or designee.
III. COMPENSATION.
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A. Base Salary. The Company will pay to Executive a base salary at the rate
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of $200,000 per year. Such salary shall be earned monthly and shall be payable
in periodic installments no less frequently than monthly in accordance with the
Company's customary practices. Amounts payable shall be reduced by standard
withholding and other authorized deductions. The Company will review Executive's
salary at least annually. The Company may in its discretion increase Executive's
salary but it may not reduce it during the term of this Agreement.
B. Incentive Compensation. The Company will pay to the Executive the
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following additional compensation as follows:
1. Executive shall be paid an annual EBITDA bonus (the "EBITDA
Bonus") based upon the Company's performance in each fiscal year as measured
against EBITDA targets established for the Board. The amount of the Bonus will
be in the range of 4%-20% of the Base Salary. The Board shall determine the
EBITDA targets and corresponding bonus levels annually, in its sole discretion.
For 2001, the bonus, if any, will be prorated based on the percentage derived
from the number of days employed of what the full annual bonus would be, taking
the Company's EBITDA from January 1,
2001 through December 31, 2001 into account. See Exhibit A for an illustration
of the annual bonus compensation.
2. Executive shall be paid an annual sales bonus (the "Sales Bonus ')
based on the on the percent achieved of the annual budget for net pre-need
cemetery and funeral sales. The amount of the Incentive shall range from 16% to
80% base salary. The Board shall determine the sales targets and corresponding
incentive levels annually, in its sole discretion, however for the initial
period of this agreement the targets are as set forth in Exhibit A. The
incentive will be paid monthly. See Exhibit A for an illustration of the
incentive compensation.
C. Relocation Allowance. The Company will pay promptly to Executive, upon
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receipt of appropriate documentation as defined in Internal Revenue Service
regulations, all relocation expenses up to $25,000.
D. Savings and Retirement Plans. Executive shall be entitled to
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participate in all savings and retirement plans, practices, policies and
programs applicable generally to other peer executives of the Company.
E. Welfare Benefit Plans. Executive and/or his family, as the case may be,
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shall be eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs provided by the Company
(including, without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of the Company.
F. Expenses. Executive shall be entitled to receive prompt reimbursement
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for all reasonable employment expenses incurred by him in accordance with the
policies, practices and procedures as in effect generally with respect to other
peer executives of the Company.
G. Fringe Benefits. Executive shall be entitled to fringe benefits in
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accordance with the plans, practices, programs and policies as in effect
generally with respect to other peer executives of the Company. In addition,
Executive shall be paid $500 per month automobile allowance.
H. Vacation. Executive shall be entitled to take twenty business days
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vacation in each calendar year, which shall be taken at such time as is
consistent with Executive's responsibilities hereunder.
I. Modifications in Benefits Plans. The Company reserves the right to
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modify, suspend or discontinue any and all of the above plans, practices,
policies and programs at any time without recourse by Executive so long as such
action is taken generally with respect to other similarly situated peer
executives and does not single out Executive.
IV. TERMINATION.
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A. Termination By The Company.
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1. Termination For Cause. The Company may, by providing written
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notice to Executive, terminate Executive's employment hereunder for Cause at any
time. The term "Cause" for purpose of this Agreement shall mean:
a. willful malfeasance or willful misconduct by Executive
in connection with his employment; or
b. fraudulent conduct by Executive in connection with the
business affairs of the Company, which causes material
injury to the Company; or
c. intentional refusal or intentional failure to act in
accordance with any lawful and proper direction or order of
the President or the Board;
d. any material breach of material duties under this
agreement; provided however, that before Executive may be
terminated for Cause by virtue of the subparagraph A (1)
(d), the Company shall provide to Executive written notice
describing the actions or omissions giving rise to such
alleged breach with reasonable particularity and giving a
reasonable time in which to demonstrate to the Company's
reasonable satisfaction that Executive is able to perform in
the manner set forth in this Agreement; or
e. theft, embezzlement, or other criminal misappropriation
of funds by Executive from the Company; or
f. Executive's conviction of or entrance of a plea of
guilty or nolo contendere to a felony.
If Executive's employment is terminated for Cause, the termination shall
take effect on the effective date of written notice of such termination to
Executive.
In the event of the termination of Executive's employment hereunder due to
a termination by the Company for Cause, then Executive shall be entitled to
receive a lump sum cash payment equal to the sum of (i) accrued but unpaid Base
Salary as of the date of termination of Executive's employment hereunder and
(ii) accrued vacation. If Executive's employment hereunder is terminated by the
Company for Cause, Executive shall not be entitled to receive any payment,
benefit, or compensation, except as expressly set forth in this paragraph IV. A.
1.
If the Company attempts to terminate Executive's employment pursuant to
Section IV. A. 1. and it is ultimately determined that the Company lacked Cause,
the provisions of Section IV. A. 2. ("Termination by the Company--Termination
Without Cause") will apply, and the Company shall pay interest on any past due
payments at the
rate of ten percent (10%) per year from the date on which the applicable payment
would have been made pursuant to Section IV. A. 1.
2. Termination Without Cause. The Company may, with or without
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reason, terminate the Period of Employment and Executive's employment hereunder
without Cause at any time, by providing Executive written notice of such
termination. In the event of the termination of the Period of Employment and
Executive's employment hereunder due to a termination by the Company without
Cause (other than due to Executive's death or Permanent Disability), then
Executive shall be entitled to receive a lump sum cash payment equal to the sum
of (i) accrued but unpaid Base Salary as of the date of termination of
Executive's employment hereunder; (ii) Cobra payments by the company for 12
months from the date of termination; and (iii) a cash bonus of $100,000 if such
termination occurs prior to December 31, 2001 and equal to one year's base
salary if such termination occurs for any period thereafter.
3. Exclusive Remedy. Executive agrees that the payments contemplated
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by this Agreement shall constitute the exclusive and sole remedy for any
termination of his employment and Executive covenants not to assert or pursue
any other remedies, at law or in equity, with respect to any termination of
employment.
B. Termination By Executive. Executive shall have the right to terminate
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this Agreement at any time upon 90 days notice to the Company. In the event that
Executive so terminates, he shall be entitled, at the time the termination
becomes effective, to a lump sum payment from the Company (i) in respect of
vacation accrued, but not used; and (ii) for compensation earned under the terms
of paragraph III. A. hereof ("Compensation Payment"), but not paid as of the
effective date of the termination. Said Compensation Payment shall not include
all or any part of any EBITDA or Sales Bonus compensation in respect of the year
in which said termination occurs.
V. ARBITRATION.
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Any controversy arising out of or relating to this Agreement, its
enforcement or interpretation, or because of an alleged breach, default, or
misrepresentation in connection with any of its provisions, or any other
controversy arising out of Executive's employment, including, but not limited
to, any state or federal statutory claims, shall be submitted to arbitration in
Los Angeles County, California, before a sole arbitrator selected from Judicial
Arbitration and Mediation Services, Inc., Los Angeles County, California, or its
successor ("JAMS"), or if JAMS is no longer able to supply the arbitrator, such
arbitrator shall be selected from the American Arbitration Association, and
shall be conducted in accordance with the provisions of California Code of Civil
Procedure (S)(S) 1280 et seq. as the exclusive forum for the resolution of such
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dispute; provided, however, that provisional injunctive relief may, but need
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not, be sought by either party to this Agreement in a court of law while
arbitration proceedings are pending, and any provisional injunctive relief
granted by such court shall remain effective until the matter is finally
determined by the Arbitrator. Final resolution of any dispute through
arbitration may include any remedy or relief which the Arbitrator deems just and
equitable, including any and all remedies provided by applicable state or
federal statutes.
At the conclusion of the arbitration, the Arbitrator shall issue a written
decision that sets forth the essential findings and conclusions upon which the
Arbitrator's award or decision is based. Any award or relief granted by the
Arbitrator hereunder shall be final and binding on the parties hereto and may be
enforced by any court of competent jurisdiction. The parties acknowledge and
agree that they are hereby waiving any rights to trial by jury in any action,
proceeding or counterclaim brought by either of the parties against the other in
connection with any matter whatsoever arising out of or in any way connected
with this Agreement or Executive's employment. The parties agree that Company
shall be responsible for payment of the forum costs of any arbitration
hereunder, including the Arbitrator's fee. Executive and Company further agree
that in any proceeding to enforce the terms of this Agreement, the prevailing
party shall be entitled to its or his reasonable attorneys' fees and costs
(other than forum costs associated with the arbitration) incurred by it or him
in connection with resolution of the dispute in addition to any other relief
granted.
VI. NONCOMPETITION.
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A. Executive agrees that, during the term of this Agreement, he will
not, directly or indirectly, without the prior written consent of the Board of
Directors of the Company, provide consultative service with or without pay, own,
manage, operate, join, control, participate in, or be connected as a
stockholder, partner, or otherwise with, any business, individual, partner,
firm, corporation, or other entity which is then in competition with the
business of the Company or any present affiliate of the Company.
B. It is expressly agreed that the Company will or would suffer
irreparable injury if Executive were to compete with the business of the Company
or any subsidiary or affiliate of the Company in violation of this Agreement and
that the Company would by reason of such competition be entitled to injunctive
relief in a court of appropriate jurisdiction. Executive consents and stipulates
to the entry of such injunctive relief in such a court prohibiting him from
competing with the Company or any subsidiary or affiliate of the Company in
violation of this Agreement.
VII. ANTISOLICITATION.
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Executive promises and agrees that he will not, during his employment and
for a period of one year following termination of his employment he will not
influence or attempt to influence customers of the Company or any of its present
or future subsidiaries or affiliates, either directly or indirectly, to divert
their business to any individual, partnership, firm, corporation or other entity
then in competition with the business of the Company, or any subsidiary or
affiliate of the Company.
VIII. SOLICITING EMPLOYEES.
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Executive promises and agrees that he will not, during his employment and
for a period of one year following termination of his employment, directly or
indirectly solicit any of the Company employees who earned annually $25,000 or
more as a Company employee during the last six months of his or her own
employment to work for any
business, individual, partnership, firm, corporation, or other entity then in
competition with the business of the Company or any subsidiary or affiliate of
the Company.
IX. CONFIDENTIAL INFORMATION.
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A. Executive shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge or data relating to
the Company or any of its affiliated companies, and their respective businesses,
which shall have been obtained by Executive during his employment by the Company
or any of its affiliated companies and which shall not be or become public
knowledge (other than by acts by Executive or his representatives in violation
of this Agreement). After termination of Executive's employment with the
Company, he shall not, without the prior written consent of the Company, or as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it.
B. Executive agrees that all styles, designs, lists, materials, books,
files, reports, correspondence, records, and other documents ("Company
material") used, prepared, or made available to Executive, shall be and shall
remain the property of the Company. Upon the termination of employment, all
Company materials shall be returned immediately to the Company, and Executive
shall not make or retain any copies thereof.
X. SUCCESSORS.
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A. This Agreement is personal to Executive and shall not, without the
prior written consent of the Company, be assignable by Executive.
B. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns and any such successor or assignee shall
be deemed substituted for the Company under the terms of this Agreement for all
purposes. As used herein, "successor" and "assignee" shall include any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires the stock of the
Company or to which the Company assigns this Agreement by operation of law or
otherwise.
XI. WAIVER.
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No waiver of any breach of any term or provision of this Agreement shall be
construed to be, nor shall be, a waiver of any other breach of this Agreement.
No waiver shall be binding unless in writing and signed by the party waiving the
breach.
XII. MODIFICATION.
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This Agreement may not be amended or modified other than by a written
agreement executed by Executive and the President or his successor.
XIII. SAVINGS CLAUSE.
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If any provision of this Agreement or the application thereof is held
invalid, the invalidity shall not affect other provisions or applications of the
Agreement which can be given effect without the invalid provisions or
applications and to this end the provisions of this Agreement are declared to be
severable.
XVI. COMPLETE AGREEMENT.
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This Agreement constitutes and contains the entire agreement and final
understanding concerning Executive's employment with the Company and the other
subject matters addressed herein between the parties. It is intended by the
parties as a complete and exclusive statement of the terms of their agreement.
It supersedes and replaces all prior negotiations and all agreements proposed or
otherwise, whether written or oral, concerning the subject matter hereof. Any
representation, promise or agreement not specifically included in this Agreement
shall not be binding upon or enforceable against either party. This is a fully
integrated agreement.
XIV. GOVERNING LAW.
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This Agreement shall be deemed to have been executed and delivered within
the State of California, and the rights and obligations of the parties hereunder
shall be construed and enforced in accordance with, and governed by, by the laws
of the State of California without regard to principles of conflict of laws.
XV. COMMUNICATIONS.
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All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered or if
mailed by registered or certified mail, postage prepaid, addressed to Executive
at: 0000 Xxxxxxx Xxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000 or addressed to the Company
at 0000 X. Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000. Either party may change the
address at which notice shall be given by written notice given in the above
manner.
XVI. EXECUTION.
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This Agreement is being executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Photographic copies of such signed counterparts may be
used in lieu of the originals for any purpose.
In witness whereof, the parties hereto have executed this Agreement as of
the date first above written.
ROSE HILLS COMPANY
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxx Xx. Xxxxx Xxxxxxxxxx
Its: Chairman Executive Vice President,
Sales and Marketing
