EXHIBIT 10.14
EMPLOYMENT AGREEMENT
--------------------
This Agreement is made this 1st day of March 1999 by and between Rose Hills
Company ("the Company") and Xxxxxxxxx X. Xxxxxxx.
WHEREAS, it is the mutual intent of the parties hereto that Xxxxxxx be employed
as Senior Vice President-Sales of the Company, and
WHEREAS, it is the intent to set forth in this Agreement the terms and
conditions of said employment.
In consideration of these premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
covenant and agree as follows:
1. Employment
----------
1.1 During the term of this Agreement and subject to its terms and
conditions, Xxxxxxx shall be employed as Senior Vice President-Sales
of the Company. In said capacity, Xxxxxxx shall report to the Chief
Executive Officer of the Company or to such person(s) as the Board of
Directors of the Company ("the Board") may, from time to time direct,
and shall have such powers, responsibilities and authorities as may
be, from time to time, assigned to her by the CEO or Board.
1.2 This Agreement shall continue in effect without interruption until
terminated according to its terms.
1.3 During the term hereof, Xxxxxxx shall devote her full working time and
efforts, to the best of her ability, experience and talent, to the
performance of services, duties and responsibilities as an Officer of
the Company.
2. Compensation
------------
2.1 During the term hereof, Xxxxxxx shall be paid by the Company according
to the Commission Schedule as shown in paragraph 2.2.
2.2 Commissions will be paid weekly, based on the previous week's volume
based on the following schedule:
a) All net pre-need funeral sales 1.00%
b) All at-need property (Lots) and products .50%
This includes vaults, vases, markers and wall inscriptions, but does
not include caskets, urns or service fees.
c) All at-need mausoleum spaces or niches, including inscriptions
1.00%
d) All net pre-need cemetery property and products 1.00%
This includes vaults, vases, markers and wall Inscriptions, but does
not include caskets or urns. It includes opening and closing service
fees if sold as part of a pre-need package with property and vault.
e) All net pre-need mausoleum crypts and niches 2.25%
This includes inscriptions and opening and closing if sold as part of
pre-need package.
All commission calculations, excluding items funded by Forethought or
Rose Hills Company authorized trust products, will be based on General
Ledger Volume and verified by Payroll. Verification of pre-need
insurance and trust volume will be based on monthly reports received
from our insurance or trust vendor.
2.3 $10,000 reserve will be accumulated at 10% of override amount per
paycheck. Rose Hills will pay interest at 8% on the net balance each
year. Commissions for contracts canceling within one year of the
contract date will be deducted from the reserve account balance.
Override cancellations will be deducted from the reserve account.
Contract cancellation is defined as chargebacks allocated because of
cancellation of purchase agreements due to non-payment of account
balance for any reason or other similar reasons. The insurance vendor
will determine insurance chargebacks. Rose Hills' Accounting
Department will determine other charge backs. Contracts in "good
standing" for at least one year will not be subject to chargebacks.
(2)
2.4 In addition, incentive adjustments will be made to commissions earned
according to attainment of the budgeted gross margin target approved
by the Board for 1999 and subsequent years. For 1999, the following
schedule will be in effect: See Attachment A.
----------------
2.5 Xxxxxxx will receive an annual performance appraisal by the CEO
assessing performance against management objectives as established
each fiscal year by the Board.
3. Employee Benefits
-----------------
3.1 The Company shall provide Xxxxxxx, during the term of this Agreement,
coverage under employee pension and welfare benefit programs, plans
and practices consistent with such benefits as are made available from
time to time to other senior executives of the Company ("Benefits").
3.2 Xxxxxxx shall be entitled to no less than fifteen business days paid
vacation in each calendar year, which shall be taken at such time as
is consistent with Xxxxxxx'x responsibilities hereunder. Unless
otherwise approved by the Company, any vacation days not taken in any
calendar year shall be forfeited without pay therefor.
3.3 Xxxxxxx shall receive a car allowance of $400 per month, plus gasoline
that is furnished by Rose Hills, for her personally owned vehicle.
4. Termination
-----------
4.1 Xxxxxxx shall have the right to terminate this Agreement at any time
upon 90 day's notice to the Company. In the event that Xxxxxxx so
terminates, she 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 ("Vacation Payment") and (ii) for
compensation earned under the terms of paragraph 2.1 hereof, but not
paid ("Compensation Payment") as of the effective date of the
termination and (iii) any commissions and incentives earned but not
paid. If Xxxxxxx terminates this Agreement, she shall not be entitled
to receive any payment, benefit, or compensation from the Company, by
way of salary, commission and incentive, benefits, severance payment
or otherwise, except as expressly set forth in this paragraph.
(3)
4.2 The Company shall have the right to terminate this Agreement and
Xxxxxxx'x employment with the Company for cause at any time. As used
herein, the term "Cause" shall include (i) willful malfeasance or
willful misconduct by Xxxxxxx in connection with her employment, (ii)
any failure or refusal by Xxxxxxx to perform her duties hereunder or
to follow any lawful direction from the Company (including objectives
established under Section 2.4) which refusal or failure continues
after Xxxxxxx has been given notice by the Company that it deems such
failure or refusal has occurred, (iii) any breach by Xxxxxxx of
Section 5 herein or any other material breach of this Agreement, or
(iv) the commission by Xxxxxxx of any violation of law in connection
with the performance of her duties hereunder, any misdemeanor
involving moral turpitude or any felony. Except as explicitly provided
in this paragraph, the Company shall not be required to provide
Xxxxxxx with advance notice of termination for cause.
4.3 In the event that Xxxxxxx is terminated for cause under the terms of
paragraph 4.2, she shall be entitled to receive a lump sum payment
from the Company in respect of the Vacation Payment, the Compensation
Payment, and the commission and incentive payment only as earned to
the date of termination. If Xxxxxxx is terminated for cause under
paragraph 4.2, she shall not be entitled to receive any payment,
benefit, or compensation from the Company, by way of salary,
commission and incentive, severance payment or otherwise, except as
expressly set forth in this paragraph 4.3.
4.4 The Company shall have the right to terminate this Agreement at any
time, with or without reason, or for any reason, upon 12 months notice
to Xxxxxxx. In the event of a termination under this paragraph,
Xxxxxxx shall be entitled to receive:
(a) Her commissions through the effective date of the termination ("the
Termination Date"),
(b) Benefits, as defined in paragraph 3.1 hereof, through the Termination
Date,
(c) Commission and incentives earned but not paid,
(d) if this Agreement is terminated by the Company other than for cause,
Xxxxxxx shall not be entitled to receive any payment, benefit, or
compensation from the Company, by way of Base Salary, commission and
incentives, benefits, severance payment or otherwise, except as
expressly set forth in this paragraph 4.4.
(4)
5. Confidential Information Non-Competition
----------------------------------------
5.1 Xxxxxxx shall not, without the prior written consent of the Company,
use, divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity any Confidential Information
pertaining to the business of the Company, Loewen, Blackstone, or any
of their respective affiliates, except (i) while employed by the
Company, in the business of and for the benefit of the Company, or
(ii) when required to do so by a court of competent jurisdiction, by
any governmental agency having supervisory authority over the business
of the Company, or by any administrative agency or legislative body
(including a committee thereof) with jurisdiction to order Xxxxxxx or
the Company to divulge, disclose or make accessible such information.
For the purposes of this paragraph 5.1, "Confidential Information"
shall mean all non-public information concerning the financial data,
strategic business plans, product development (or other proprietary
product data), customer lists, marketing plans and other non public,
proprietary and confidential information of the Company, Blackstone,
Loewen, or any of their parent, subsidiary or affiliated companies, or
customers that is not otherwise available to the public (other than by
Xxxxxxx'x breach of this Agreement).
5.2 During the period of her employment hereunder and for one year
thereafter, Xxxxxxx agrees that, without the prior written consent of
the Company, (a) she will not, either directly or indirectly, either
as principal, manager, agent, consultant, officer, stockholder,
partner, investor, lender, or employee, or in any other capacity,
carry on, be engaged in or have any financial interest in, any
business which is in competition with the business of the Company or
Xxxxxx or any of their parent, subsidiary or affiliated companies, and
(b) she will not, on her own behalf or on behalf of any person, firm
or company other than the Company, directly or indirectly, solicit or
offer employment to any person who has been employed by the Company,
Xxxxxx, Blackstone or any of their parent, subsidiary or affiliated
companies at any time during the 12 months immediately preceding such
solicitation.
5.3 For the purposes of paragraph 5.2, a business shall be deemed to be in
competition with the Company or Xxxxxx if it owns, operates or manages
a funeral home or cemetery property that is located within 25 miles of
Rose Hills Memorial Park and Mortuary and all affiliates. Nothing in
this Agreement shall be construed to xxx Xxxxxxx from accepting
employment with a funeral home or cemetery property in any other
geographic region.
5.4 Xxxxxxx and the Company agree that the covenant of paragraphs 5.2 and
5.3 are reasonable under the circumstances, and further agree that if
in the opinion of any court of competent jurisdiction such restraint
is not reasonable in any respect, that, without further action by the
parties, said covenant shall be deemed modified so as to have the
broadest possible scope, consistent with the opinion of said court,
and shall be enforceable as so modified.
(5)
5.5 Xxxxxxx agrees that any breach of the covenants of this section 5
would cause irreparable injury to the Company, Xxxxxx and Blackstone
for which monetary damages would not be an adequate remedy.
Accordingly, Xxxxxxx agrees that, in the event of such breach, the
Company, Xxxxxx or Blackstone, in addition to pursing any other
remedies that they may have in law or in equity, (i) may cease making
any payments otherwise required by this Agreement, and (ii) shall be
entitled to a temporary injunction and permanent injunction
restraining any further violation of this Agreement by Xxxxxxx.
6. Arbitration
-----------
6.1 Any and all disputes and claims arising from or in relation to this
Agreement, with the exception of (i) an action by the Company, Xxxxxx
or Blackstone for injunctive relief under section 5 of this Agreement,
or (ii) an action by Xxxxxxx under federal or state laws against
discrimination in employment, shall be resolved through arbitration in
Los Angeles, California, under the auspices and rules of the American
Arbitration Association. Any action for injunctive relief under
section 5 hereof or under federal or state anti-discrimination laws
may be brought in any court of competent jurisdiction.
6.2 In the event that either party to this Agreement, or Xxxxxx or
Blackstone brings a claim or action for enforcement of this Agreement,
or otherwise relating to or arising from this Agreement, the
prevailing party shall be entitled to recover her or its costs of suit
including a reasonable attorney's fee.
7. Successors and Assigns
----------------------
7.1 This Agreement shall inure to the benefit of and be binding upon the
undersigned parties hereto and their respective successors and
assigns.
7.2 Xxxxxxx may not assign her performance of this Agreement without the
prior, expressed written, consent of the Company,
8. Survival of Covenants
---------------------
8.1 The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to
the intended preservation of such rights and obligations. Without
limiting the generality of the foregoing, the provisions of section 5
hereof shall remain in effect as long as necessary to give effect
thereto, notwithstanding the termination of this Agreement.
(6)
9. Governing Law
-------------
9.1 This Agreement shall be construed, interpreted and governed in
accordance with the laws of the State of California without reference
to rules relating to conflicts of laws.
10. Effect on Prior Agreements
--------------------------
10.1 This Agreement contains the entire understanding between the parties
relating to the subject matter hereof and supersedes in all respects
any prior or other agreement or understanding between the Company,
Blackstone, Xxxxxx or any of their affiliates and Xxxxxxx relating to
the subject matter.
11. Counterparts
------------
11.1 This Agreement may be executed in two or more counterparts, each of
which will be deemed an original.
ROSE HILLS COMPANY
Signed:
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------ ------------------------
Xxxxxx X. Xxxx Xxxxxxxxx X. Xxxxxxx
President and CEO
(7)
