EMPLOYMENT AND RELEASE AGREEMENT FOR EMPLOYEES
OTHER THAN CORPORATE AND COUNTRY MANAGEMENT
THIS AGREEMENT, dated as of the _____ day of _________, 1999 (the
"Effective Date"), is entered into by and between ___________________________,
located at ___________________________________________________________ (the
"Company") and __________________________ ("Employee").
WHEREAS, the Company has implemented the KERP (as defined below),
pursuant to an Order Authorizing Debtors and Debtors in Possession to Implement
Key Employee Retention Program issued by the United States Bankruptcy Court for
the District of Delaware in Case Number 99-1244 (PJW) on September 21, 1999 and
an Order issued by the Superior Court of Justice of Ontario in Court File No.
99-CL-3384 on September 24, 1999 (collectively, the "Order"); and
WHEREAS, pursuant to the Order, Employee's eligibility to participate
in and receive payments under the KERP is contingent on Employee's agreeing to
the matters set forth in Articles III and IV hereof.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and for good and valuable consideration, including participation in the
KERP as applicable, the receipt of which is hereby acknowledged, it is agreed as
follows:
ARTICLE I
DEFINITIONS
The following terms shall have the respective meanings set forth below,
unless the context clearly otherwise requires:
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1.1 "AFFILIATE" means, with respect to a particular Entity, an Entity
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Entity, and an Entity shall
be "unaffiliated" with another Entity if such Entities are not Affiliates with
respect to one another.
1.2 "CAUSE" means: (a) neglect of duty, dishonesty or misconduct in
matters involving the Company or the performance of services, (b) loss of
qualification of licensure, (c) stealing or unlawful use of the Company's
property or monies, (d) continued willful insubordination after reasonable
warning or reprimand, (e) commission of a felony or any crime requiring intent
or moral turpitude, (f) a violation of the Company's anti-harassment or drug use
policies or (g) actively and intentionally pursuing interests of a competitor to
the detriment of the financial interests of the Company.
1.3 "COMPETING BUSINESS" means an Entity which is in competition with
any significant line of business conducted by the Company or an Affiliate
including, without limitation, the funeral, cemetery or related businesses.
1.4 "ENTITY" shall mean any individual, trust, estate, partnership,
corporation or any other form of business organization.
1.5 "KERP" means the Retention Incentive Plan, the Performance
Incentive Plan, the Confirmation Incentive Plan and the Severance Plan, as
approved by the Order.
ARTICLE II
CERTAIN OBLIGATIONS OF THE COMPANY
2.1 EMPLOYMENT. Subject to the terms of this Agreement, the Company
agrees to continue to employ Employee. Employee and the Company agree that
Employee is an at-will employee and nothing contained herein shall prevent (a)
Employee from terminating
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employment with the Company for any reason or for no reason or (b) the
Company from terminating Employee's employment with the Company for any
reason or for no reason, subject to satisfaction of any applicable
obligations under the KERP. The Company may prepare a summary of Employee's
job description and duties, as amended from time to time, and such summary
may be attached hereto as an Exhibit.
2.2 KERP BENEFITS. The Company agrees to provide Employee with the
benefits and payments to which Employee is entitled under the KERP, as in effect
from time to time and as applicable to Employee's employment level in effect at
the time such benefits and payments become due to Employee.
2.3 OTHER EMPLOYEE BENEFITS. Employee and Employee's family, as
applicable, shall be eligible for participation in and shall receive all
benefits to which they are entitled under the Company's other employee benefit
plans, as in effect from time to time.
2.4 SUCCESSORS AND BINDING AGREEMENT.
(a) The Company will require any successor to all or
substantially all of the businesses or assets of the Company (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise)
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent the Company would be required to perform if no such
succession had taken place. This Agreement will be binding upon and inure to the
benefit of the Company and any successor to the Company, including without
limitation any persons acquiring directly or indirectly all or substantially all
of the businesses or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor will thereafter
be deemed "the Company" for the purposes of this Agreement).
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(b) This Agreement will inure to the benefit of and be
enforceable by Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees and legatees.
ARTICLE III
CERTAIN OBLIGATIONS OF EMPLOYEE
3.1 NO PARTICIPATION IN OTHER BUSINESSES. While employed by the
Company, Employee shall not, without the consent of the Board of Directors of
the Company, become actively associated with or engaged in any Competing
Business. Employee shall devote Employee's best efforts and full business time
and attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of the Company.
3.2 TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) UNAUTHORIZED DISCLOSURE, USE OR SOLICITATION. Employee will
keep in strict confidence, and will not, directly or indirectly, at any time
during or after Employee's employment with the Company, make available,
disclose or use any trade secrets or confidential business and technical
information (except in the course of performing Employee's duties and
obligations under this Agreement). Further, during Employee's employment and
for a period of two years after termination of Employee's employment with the
Company, Employee shall not in any manner, directly or indirectly, induce or
attempt to induce any employee of the Company or an Affiliate to quit or
abandon his or her employment, or any customer, independent contractor,
consultant, supplier or vendor of the Company or an Affiliate to quit or
abandon its relationship, for any purpose whatsoever.
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(b) POST-TERMINATION. Employee agrees that, upon termination of
Employee's employment with the Company, for any reason, Employee will return
to the Company, in good condition, all property of the Company, including
without limitation, the originals and all copies of all management, training,
marketing and selling manuals; promotional materials; other training and
instructional materials; financial information; vendor, owner, manager and
product information; customer lists; other customer information; and all
other selling, service and trade information and equipment. If such items are
not returned, the Company will have the right to charge Employee for all
reasonable damages, costs, attorneys' fees and other expenses incurred in
searching for, taking, removing and/or recovering such property.
3.3 NONCOMPETITION. Employee and the Company recognize that Employee's
duties will entail the receipt of trade secrets and confidential information,
which include not only information concerning the Company's current operations,
procedures, suppliers and other contacts, but also its short-range and
long-range plans, and that such trade secrets and confidential information may
have been developed by the Company and its Affiliates at substantial cost and
constitute valuable and unique property of the Company. Accordingly, Employee
acknowledges that the foregoing makes it reasonably necessary for the protection
of the Company's business interests that Employee not compete with the Company
or any of its Affiliates during the term of this Agreement and that, for a
reasonable and limited period thereafter, the Employee not compete with the
Company or any of its Affiliates in the same geographic area in which the
Employee performs his services for the Company at the time of his termination of
employment with the Company. Therefore, (a) during the term of this Agreement,
Employee shall not (i) render personal services to any Competing Business in any
manner, including, without limitation, as owner, partner, director, trustee,
officer, employee,
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consultant or advisor thereof ("Personal Services") or (ii) have any
investment in a Competing Business other than a DE MINIMIS investment and (b)
for two years after Employee's termination of employment, Employee shall not
(i) render Personal Services to any Competing Business within a 25 mile
radius of the Company-owned site to which Employee regularly reported at the
time of Employee's termination of employment with the Company or (ii) have
any investment in a Competing Business other than a DE MINIMIS investment.
For purposes of the preceding sentence, a DE MINIMIS investment is ownership
of less than 1/2 of 1% of the outstanding equity or debt of any Competing
Business.
Notwithstanding anything herein to the contrary, if Employee
shall breach the covenants contained in this Article III, the Company shall have
no further obligations to Employee pursuant to this Agreement and may recover
from Employee all such damages to which it may be entitled at law or in equity.
In addition, Employee acknowledges that any such breach is likely to result in
immediate and irreparable harm to the Company for which money damages are likely
to be inadequate. Accordingly, Employee consents to injunctive and other
appropriate equitable relief that the Company may seek to protect the Company's
rights under this Agreement. Such relief may include, without limitation, an
injunction to prevent Employee from disclosing any trade secrets or confidential
information concerning the Company to any Entity, to prevent any Entity from
receiving from Employee or using any such trade secrets or confidential
information and/or to prevent any Entity from retaining or seeking to retain any
other employees of the Company. Employee acknowledges good and sufficient
consideration for the noncompetition and nonsolicitation covenants of this
Section.
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ARTICLE IV
RELEASE
4.1 TERMINATION OF EXISTING ARRANGEMENTS. Employee agrees that (a)
any employment or consulting agreements or other such arrangements, as such
agreements or arrangements were applicable to Employee prior to the Effective
Date (except such employment or consulting agreements or other arrangements
which are listed on Exhibit A hereto) and (b) any Company programs with
respect to retention or performance incentive payments or severance or
similar benefits, as such payments or benefits were applicable to Employee
prior to the Effective Date ((a) and (b) being collectively referred to as
the "Prior Arrangements"), are hereby terminated.
4.2 RELEASE. Upon execution of this Agreement, Employee (a) releases
and waives any rights or entitlements that Employee has or may have under any
Prior Arrangements, (b) releases and waives any claims for damages relating
to or arising out of the termination or rejection of any Prior Arrangement
during the Company's reorganization and (c) acknowledges that all severance
payments provided for in the KERP are in lieu of and not in addition to
notice or severance payments provided at law, whether statutory or
otherwise.. Such release will not, however, apply to the ongoing obligations
of the Company arising under this Agreement, or rights of indemnification
Employee may have under the Company's policies or by contract or by statute.
4.3 COVENANT NOT TO XXX. Employee agrees that Employee will never file
a lawsuit against the Company or any other third party asserting any claims
released hereunder.
4.4 BREACH. Employee further agrees that in the event Employee breaches
any of Employee's obligations hereunder or if the Company terminates Employee's
employment with
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the Company for Cause, the Company shall have the right to demand the
repayment of all or a portion of any amounts paid to Employee under the KERP
and, in addition, (a) the Company shall have no further obligation to
Employee pursuant to this Agreement and (b) Employee shall pay any expenses
or damages incurred by the Company or its Affiliates as a result of said
breach or as a result of the activities giving rise to the termination for
Cause, including all costs incurred by the Company or its Affiliates,
including reasonable attorneys' fees, in defending against any claims
released in Section 4.2 hereof.
4.5 RELEASE AGREEMENT. Employee acknowledges that this Agreement
constitutes a "Release Agreement" as described in any component of the KERP.
ARTICLE V
MISCELLANEOUS
5.1 ASSIGNMENT. This Agreement is personal in nature and neither of the
parties hereto will, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereof except as expressly
provided in Sections 2.4(a) and (b). Without limiting the generality or effect
of the foregoing, Employee's right to receive payments hereof will not be
assignable, transferable or delegable, whether by pledge, creation of a security
interest, or otherwise, other than by a transfer by Employee's will or by the
laws of descent and distribution and, if Employee attempts any assignment or
transfer contrary to this Section 5.1, the Company will have no liability to pay
any amount Employee attempts to assign, transfer or delegate.
5.2 GOVERNING LAW; ARBITRATION. This Agreement has been executed on
behalf of the Company by an officer of the Company located in the City of
_____________. This Agreement and all questions arising in connection with it
shall be governed by and construed in accordance
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with the laws of the jurisdiction in which Employee ordinarily is a resident.
Subject to the following sentence, all disputes arising out of, or in
connection with this Agreement, which are not promptly settled by mutual
agreement of the parties hereto, shall be finally settled by arbitration in
accordance with the rules of the American Arbitration Association or the
Rules of the Arbitration and Mediation Institute of Canada, as appropriate.
Notwithstanding anything herein to the contrary, the Company may, at its
option, seek injunctive relief as contemplated in Article III above either in
lieu of or in addition to the arbitration remedies provided for in this
Section.
5.3 SEVERABILITY. If any portion of this Agreement is held to be
invalid or unenforceable, such holding shall not affect any other portion of
this Agreement.
5.4 ENTIRE AGREEMENT. This Agreement comprises the entire agreement
between the parties hereto and, as of the date hereof, supersedes any prior
agreements between the parties. This Agreement may not be modified, renewed or
extended except by a written instrument referring to this Agreement and executed
by the parties hereto.
5.5 NOTICES. Any notice or consent required or permitted to be given
under this Agreement shall be in writing and shall be effective (a) when given
by personal delivery, (b) one business day after being sent by overnight
delivery service or (c) five business days after being sent by certified or
registered mail, return receipt requested, to the Secretary of the Company at
its principal place of business in the City of ___________ or to Employee at the
last known address of Employee as shown on the records of the Company.
5.6 WITHHOLDING TAXES. The Company may withhold from any amounts
payable under this Agreement all federal, state, provincial, city or other taxes
or other amounts as shall be required pursuant to any law or governmental
regulation or ruling.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
THE COMPANY
By:
------------------------------------------
Name:
Title:
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EMPLOYEE
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EXHIBIT A
NON-TERMINATING EMPLOYMENT OR CONSULTING
AGREEMENTS OR OTHER SUCH ARRANGEMENTS
THE COMPANY AND EMPLOYEE HEREBY AGREE THAT IN ORDER FOR THIS
EXHIBIT A TO HAVE A BINDING EFFECT UNDER SECTION 4.1 OF THE AGREEMENT,
THIS EXHIBIT A MUST BE EXECUTED BY EACH OF THE COMPANY, EMPLOYEE
AND (UNLESS SUCH INDIVIDUAL IS SIGNING ON BEHALF OF THE COMPANY) A
REPRESENTATIVE OF THE OFFICE OF THE VICE PRESIDENT OF OPERATIONS OF
FUNERAL HOMES AND CEMETERIES ("REPRESENTATIVE")
IN WITNESS WHEREOF, the parties hereto have executed this
Exhibit A as of the date and year first above written.
THE COMPANY
By:
------------------------------------------
Name:
Title:
---------------------------------------------
EMPLOYEE
---------------------------------------------
REPRESENTATIVE
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