RELEASE AND SEPARATION AGREEMENT
Exhibit 10.2
This RELEASE AND SEPARATION AGREEMENT (the “Agreement”) is made and entered into by J. Xxxxxxx
Xxxxx (“EMPLOYEE”) and Carriage Services, Inc., its past, present and future subsidiaries, parents,
and affiliates and their past, present, and future employees, officers, directors, agents, insurers
and legal counsel (hereinafter collectively referred to as the “COMPANY”).
WHEREAS, EMPLOYEE and COMPANY entered into a First Amended and Restated Employment Agreement
dated January 4, 2011 (hereinafter the “Employment Agreement”);
WHEREAS, EMPLOYEE has advised COMPANY of his intent to resign his employment effective as of
December 31, 2011, and terminate the Employment Agreement;
WHEREAS, COMPANY wishes to provide EMPLOYEE with an orderly transition from the COMPANY and
both EMPLOYEE and the COMPANY wish to settle any and all issues and potential issues which relate
or may relate to EMPLOYEE’s employment with and departure from the COMPANY including, but not
limited to, those arising under the Employment Agreement;
NOW, THEREFORE, COMPANY and EMPLOYEE agree as follows, in consideration of the mutual
covenants and obligations contained herein, and intending to be legally held bound:
1. EMPLOYEE’S RESIGNATION. EMPLOYEE will resign his employment and cease to be employed by
the COMPANY effective as of December 31, 2011 (the “Termination Date”). As of the Termination
Date, EMPLOYEE specifically waives all rights to any additional bonus and/or awards, vesting or
payment under the Performance Units Plan, the 2006 Long-Term Incentive Plan, the First Amended and
Restated 2006 Long-Term Incentive Plan or any other plan or policy of the COMPANY, except as may
otherwise be set out in this Agreement. In addition, EMPLOYEE hereby resigns his position as
Executive Vice President Corporate Development, General Counsel and Secretary for Carriage
Services, Inc., its subsidiaries and affiliates and, as a member of the Board of Directors and
Board of Managers of the subsidiaries and affiliates of Carriage Services, Inc.
2. CONSIDERATION. In consideration for the releases and other covenants set forth in this
Agreement, after this Agreement becomes effective, the COMPANY agrees to provide EMPLOYEE:
a. COMPANY will continue to pay EMPLOYEE’s base salary at the biweekly rate of Eleven Thousand
One Hundred Fifty-Three Dollars and Eighty-Five Cents ($11,153.85) until December 31, 2011.
EMPLOYEE’s coverage under the Carriage Services, Inc. Health and Welfare Plan shall continue until
the Termination Date. The COMPANY shall have the right to deduct from any payment of compensation
to the EMPLOYEE hereunder (x) any federal, state or local taxes required by law to be withheld with
respect to such payments, and (y) any other amounts specifically authorized to be withheld or
deducted by the EMPLOYEE.
b. EMPLOYEE shall be entitled to payment of any amounts which may be due under the Performance
Units Plan shares, as valued at December 31, 2011, pursuant to the terms of such Performance Unit
Award Agreements.
c. If the EMPLOYEE becomes eligible to elect continuation coverage under the Consolidated
Omnibus Budget Reconciliation Act (“COBRA”) and properly elects such coverage, the COMPANY shall
reimburse the EMPLOYEE or pay on the EMPLOYEE’S behalf 100% of applicable medical continuation
premiums for the benefit of the EMPLOYEE (and his covered dependents as of the date of his
termination, if any) under the EMPLOYEE’S then-
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current plan election, with such coverage to be provided under the closest comparable plan as
offered by the COMPANY from time to time, for so long during the 18-month period following
termination as he remains eligible for and elects COBRA coverage.
d. COMPANY will pay EMPLOYEE an amount of five hundred seven thousand five hundred dollars
($507,500.00) upon the execution of this Agreement. The COMPANY shall have the right to deduct
from any payment of compensation to the EMPLOYEE hereunder (x) any federal, state or local taxes
required by law to be withheld with respect to such payments, and (y) any other amounts
specifically authorized to be withheld or deducted by the EMPLOYEE. Such amount shall be paid in a
single, lump-sum payment no later than ten (10) days after the EMPLOYEE signs this Agreement.
e. COMPANY agrees to release EMPLOYEE from any liability arising pursuant to any breach by him
of the Employment Agreement.
f. COMPANY agrees to pay EMPLOYEE for all accrued, but unused vacation as of the Termination
Date.
g. COMPANY agrees to allow EMPLOYEE the use of his office and limited secretarial services
until the TERMINATION DATE.
h. If the EMPLOYEE dies at any time while the COMPANY is paying consideration pursuant to
Subsection 2, the Company shall continue making the remaining payments under Subsection 2 to the
Employee’s estate. Such payments to the Employee’s estate shall be made in the same manner and at
the same times as they would have been paid to the Employee had he not died.
EMPLOYEE acknowledges and agrees that the consideration outlined above does not constitute
monies to which he would otherwise be entitled as a result of his prior employment with the
COMPANY, and that these monies constitute fair and adequate compensation for the promises and
covenants of EMPLOYEE set forth in this Agreement.
EMPLOYEE further acknowledges that this Release and Separation Agreement must be executed by
EMPLOYEE not later than by November 15, 2011, otherwise this Agreement shall be of no force or
effect, and the severance benefits shall not be paid.
3. EMPLOYEE’S RELEASE OF CLAIMS. For and in consideration of the Consideration as described
in paragraph 2 of this Agreement, EMPLOYEE hereby irrevocably and unconditionally releases, forever
discharges, and covenants not to xxx, or bring any other legal action against the COMPANY with
respect to any and all claims and causes of action of any nature, both past and present, known and
unknown, foreseen and unforeseen, which EMPLOYEE has or which could be asserted on his behalf by
any other person or entity, resulting from or relating to any act or omission of any kind occurring
on or before the date of the execution of this Agreement. EMPLOYEE understands and agrees that
this Release includes, but is not limited to, the following:
a. All claims and causes of action arising under contract, tort or other common law,
including, without limitation, breach of contract, fraud, estoppel, misrepresentation, express or
implied duties of good faith and fair dealing, wrongful discharge, discrimination, retaliation,
harassment, negligence, gross negligence, false imprisonment, assault and battery, conspiracy,
intentional or negligent infliction of emotional distress, slander, libel, defamation, refusal to
perform an illegal act and invasion of privacy.
b. All claims and causes of action arising under any federal, state, or local law, regulation,
or ordinance, including without limitation, the Civil Rights Act of 1964, as amended, the Civil
Rights Act of 1866, the Americans With Disabilities Act, the Age Discrimination in Employment Act
(“ADEA”) (which prohibits age discrimination in employment), the Older Workers Benefit Protection
Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Employee Retirement Income
Security Act, and relevant state laws including, but
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not limited to the Illinois Human Rights Act, as well as any claims for wages, employee
benefits, vacation pay, severance pay, pension or profit sharing benefits, health or welfare
benefits, bonus compensation, vesting of stock options, commissions, deferred compensation or other
remuneration, or employment benefits or compensation. c. All claims and causes of action for past
or future loss of pay or benefits, expenses, damages for pain and suffering, mental anguish or
emotional distress damages, liquidated damages, punitive damages, compensatory damages, attorney’s
fees, interest, court costs, physical or mental injury, damage to reputation, and any other injury,
loss, damage or expense or any other legal or equitable remedy of any kind whatsoever.
d. All claims and causes of action arising out of or in any way connected with, directly or
indirectly, EMPLOYEE’s employment with the COMPANY, or any incident thereof, including, without
limitation, EMPLOYEE’s treatment by the COMPANY; the terms and conditions of the EMPLOYEE’s
employment; and the separation of EMPLOYEE’s employment.
4. RETURN OF COMPANY PROPERTY. EMPLOYEE shall return, in good working order, any and all
property of the COMPANY that is in his possession, custody or control on or before December 31,
2011. Such property includes, but is not limited to, keys, software, calculators, equipment, credit
cards, forms, files, manuals, correspondence, business cards, personnel data, lists of or other
information regarding customers, contacts and/or employees, contracts, contract information,
agreements, leases, plans, brochures, catalogues, training materials, computer tapes and diskettes
or other portable media. Provided however, in exchange for the furniture currently in the office
(property of EMPLOYEE), with the exception of the chair, EMPLOYEE shall receive the laptop, docking
station, monitor, iPhone and iPad currently in his possession.
5. TAX ISSUES. The COMPANY may withhold from any benefits and payments made pursuant to this
Agreement all federal, state, city and other taxes as may be required pursuant to any law or
governmental regulation or ruling and all other normal employee deductions made with respect to the
COMPANY’S employees generally. Notwithstanding anything in this Agreement to the contrary, in the
event it shall be determined that any payment or distribution by the COMPANY to the EMPLOYEE or for
his benefit, whether paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of
the Code, or any interest or penalties with respect to such excise tax (such excise tax, together
with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”),
the COMPANY shall pay to the EMPLOYEE an additional payment (a “Gross-up Payment” ) in an amount
such that after payment by the EMPLOYEE of all taxes (including any interest or penalties imposed
with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, the EMPLOYEE
retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. All
determinations required to be made under this Section 21 shall be made by the COMPANY’S accounting
firm (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations
both to the COMPANY and the EMPLOYEE. All fees and expenses of the Accounting Firm shall be borne
solely by the COMPANY. Absent manifest error, any determination by the Accounting Firm shall be
binding upon the COMPANY and the EMPLOYEE.
6. NON-ADMISSION. EMPLOYEE and COMPANY agree that this Agreement and the payment of money to
EMPLOYEE by the COMPANY is not an admission by either party of any violation of the other party’s
rights or of any violation of contract or statutory or common law.
7. NON-DISPARAGEMENT. EMPLOYEE specifically covenants and agrees not to, directly or
indirectly, make or cause to be made to anyone any statement, orally or in writing, criticizing or
disparaging the COMPANY with respect to his employment with the COMPANY. COMPANY specifically
covenants and agrees not to, directly or indirectly, make or cause to be
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made to anyone any statement, orally or in writing, criticizing or disparaging the EMPLOYEE,
with respect to his employment with the COMPANY.
8. CONTINUING OBLIGATIONS. EMPLOYEE acknowledges that in the course of his employment with
the COMPANY he has obtained confidential and proprietary information including, but not limited to,
financial, business, product, customer and marketing information, plans, forecasts and strategies.
EMPLOYEE acknowledges and agrees that he has a continuing obligation to maintain the
confidentiality of all such non-public information even after the termination of his employment
with the COMPANY.
9. COOPERATION. EMPLOYEE acknowledges and agrees that from and after the Effective Date of
this Agreement, he will cooperate fully with the COMPANY, its officers, employees, agents,
affiliates and attorneys in the defense or prosecution of, or in preparation for the defense or
prosecution of any lawsuit, dispute, investigation or other legal proceedings (“Proceedings”).
EMPLOYEE further acknowledges and agrees that he will cooperate fully with the COMPANY, its
officers, employees, agents, affiliates and attorneys on any matter related to COMPANY business
(“Matters”) during the period of EMPLOYEE’s employment.
Such cooperation shall include providing true and accurate information or documents
concerning, or affidavits or testimony about, all or any matters at issue in any
Proceedings/Matters as shall from time to time be requested by the COMPANY, and shall be with the
knowledge of EMPLOYEE. Such cooperation shall be provided by EMPLOYEE without remuneration, but
EMPLOYEE shall be entitled to reimbursement for all reasonable and appropriate expenses incurred by
him in so cooperating including, by way of example and not by way of limitation, airplane fares,
hotel accommodations, meal charges and other similar expenses to attend Proceedings/Matters outside
of the city of EMPLOYEE’s residence. The reasonable fees and expenses of EMPLOYEE shall be
reimbursed by the COMPANY on a regular, periodic basis upon presentation by EMPLOYEE of a statement
and receipts in accordance with the COMPANY’S customary practices and policies; provided, however,
that such reimbursement will be paid no later than December 31 of the calendar year following the
calendar year in which EMPLOYEE incurred the expense. In the event EMPLOYEE is asked by a third
party to provide information regarding the COMPANY, or is called other than by the COMPANY to
testify in any Proceeding/Matter related to the COMPANY, he will notify the COMPANY as soon as
possible in order to give the COMPANY a reasonable opportunity to respond and/or participate in
such Proceeding/Matter.
10. FEES AND COSTS. Except as set forth in paragraph 12 of this Agreement, below, the parties
shall bear their own attorneys’ fees and costs.
11. CONSEQUENCES OF BREACH BY EMPLOYEE. EMPLOYEE acknowledges that it would be unfair for
EMPLOYEE to retain or receive the consideration if the promises given by EMPLOYEE herein are not
enforced (excluding a lawsuit filed by EMPLOYEE solely to challenge the validity of the Age
Discrimination in Employment Act waiver). This provision will not limit EMPLOYEE’s liability if
COMPANY’s actual damages exceed the amount received by EMPLOYEE under this Agreement.
COMPANY and EMPLOYEE acknowledge and agree that the prevailing party shall be entitled to
payment of its attorneys’ fees and other costs and expenses incurred in enforcing this provision of
the Agreement and/or in prosecuting any counterclaim or cross-claim based on this provision of the
Agreement.
12. CHOICE OF LAW/VENUE. This Agreement shall be governed by, construed, and enforced in
accordance with, and subject to, the laws of the State of Texas or federal law, where applicable,
without regard to the conflict of law principles of any jurisdiction. In the event there shall be
any dispute arising out of the terms and conditions of, or in connection with, this Agreement, the
party seeking relief shall submit such dispute to the United States District Court for the Southern
District of Texas or, if federal jurisdiction is lacking, the District Courts of Xxxxxx County,
Texas.
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13. NON-SOLICITATION. In exchange for the CONSIDERATION paid hereunder, EMPLOYEE agrees not
to induce or assist anyone in inducing in any way any employee of the Company or any of its
Affiliates to resign or sever his or her employment or to breach an employment contract with the
Company or any Affiliate for a period of two (2) years following the TERMINATION DATE of EMPLOYEE’S
employment with the COMPANY.
14. ENTIRE AGREEMENT. It is expressly understood and agreed that this Agreement embodies the
entire agreement between the Parties relating to EMPLOYEE’s employment by the COMPANY and all other
matters arising between COMPANY and EMPLOYEE prior to the date and time of execution hereof, and
supersedes any and all prior agreements, including the Employment Agreement, arrangements, or
understandings between and among them, with the exception of paragraphs 8 and 9 of the Employment
Agreement. EMPLOYEE and COMPANY agree that paragraphs 8 and 9 of the Employment Agreement are
enforceable and it is their specific intent that these provisions shall survive the execution of
this Agreement. Schedule 1 to the Employment Agreement shall be amended to read “Xxxxxx Xxxxxx &
Co.” shall read “Xxxxxx Xxxxxx & Co. or any other broker associated with the funeral or cemetery
industry”.
No oral understandings, statements, promises, terms, conditions, obligations, or agreements
contrary or in addition to the terms of this Agreement exist. This Agreement may not be changed by
oral representations, and may only be amended by written instrument executed by a duly authorized
representative of each of the Parties, or their respective successors or assigns. If any part of
this Agreement is found to be illegal or unenforceable by any agency or court, the remaining
provisions shall continue in full force and effect.
15. OTHER REPRESENTATIONS: EMPLOYEE hereby represents and certifies that he: (1) has
carefully read all of this Agreement; (2) has been given a fair opportunity to discuss and
negotiate the terms of this Agreement; (3) understands its provisions; (4) has been advised in
writing and given the opportunity to seek advice and consultation with attorneys regarding this
Agreement; (5) has determined that it is in his best interests to enter into this Agreement; (6)
has not been influenced to sign this Agreement by any statement or representation by the COMPANY
not contained in this Agreement; and (7) enters into this Agreement knowingly and voluntarily.
READ THIS AGREEMENT CAREFULLY BEFORE SIGNING AS IT PROVIDES FOR
A RELEASE OF CLAIMS
A RELEASE OF CLAIMS
SIGNING OF RELEASE AND SEPARATION AGREEMENT
We the undersigned do hereby sign and agree to the terms set forth in the Release and Settlement
Agreement, on the dates set forth below:
| /s/ J. Xxxxxxx Xxxxx |
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EMPLOYEE |
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| /s/ Xxxxxx X. Xxxxx |
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Carriage Services, Inc. |
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President & Chief Executive Officer |
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