EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 20th day of November, 1997, is
between CARRIAGE SERVICES OF FLORIDA, INC., a Florida corporation (the
"Company"), and XXXX X. XXXXXXXXX, a resident of Bay County, Florida (the
"Employee").
1. EMPLOYMENT TERM. The Company hereby employs the Employee for a
term commencing on the date hereof and, subject to earlier termination as
provided in Section 7 hereof, continuing for a period of five (5) years
thereafter (such term being herein referred to as the "term of this Agreement").
The Employee agrees to accept such employment and to perform the services
specified herein, all upon the terms and conditions hereinafter stated.
2. DUTIES. The Employee shall serve the Company and shall report to,
and be subject to the general direction and con trol of, the Board of Directors
of the Company (the "Board"). The Employee shall perform the professional,
management and adminis trative duties of a Co-General Manager of the Forest Lawn
Memorial Cemetery located at 0000 Xxxxxxxx Xxxxxx, the Evergreen Memorial
Gardens Cemetery located at 0000 X.X. Xxxxxxx 000 Xxxxx, and the Garden of
Memories Cemetery located at 0000 Xxxx 00xx Xxxxxx, all in Panama City, Bay
County, Florida (collectively, the "Cemeteries"), and the Kent Forest Lawn
Funeral Home located at 0000 Xxxxxxxx Xxxxxx in Panama City, Bay County, Florida
and the Emerald Coast Funeral Home located at 000 Xxxxxxxxx Xxxx, X.X. in Fort
Xxxxxx Beach, Okaloosa County, Florida (collectively, the "Homes"), and such
other duties as are from time to time assigned to him by the Board and as are
not inconsistent with the provisions hereof. In addition to such duties, the
Employee shall furnish to the Company his best advice, information, judgment and
knowledge with respect to the affairs, business, business methods and practices,
history, patrons, customers, employees and suppliers of the Cemeteries and the
Homes (collectively, the "Operations"), and to generally preserve and increase
the business and goodwill thereof.
3. EXTENT OF SERVICE. The Employee shall devote his full business
time and attention to the business of the Company, and, except as may be
specifically permitted by the Company, shall not be engaged in any other
business activity during the term of this Agreement. The foregoing shall not be
construed as preventing the Employee from making passive investments in other
businesses or enterprises, provided, however, that such investments will not
require services on the part of the Employee which would in any way impair the
performance of his duties under this Agreement.
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4. COMPENSATION. During the term of this Agreement, the Company
shall pay the Employee a salary of $6,250.00 per full calendar month of service
completed, appropriately prorated for partial months at the commencement and end
of the term of this Agreement. The salary set forth herein shall be payable in
bi-weekly installments in accordance with the payroll policies of the Company in
effect from time to time during the term of this Agreement. The Company shall
have the right to deduct from any payment of all 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.
5. BENEFITS. In addition to the base salary under Section 4, the
Employee shall be entitled to participate in the following benefits during the
term of this Agreement:
(a) Participation in the Incentive Compensation Plan for Certain Key
Employees of the Operations (other than the Emerald Coast Funeral Home),
on terms to be established upon commencement of employment; and
(b) Such other employee benefits as are available generally to
employees of the Company.
6. CERTAIN ADDITIONAL MATTERS. The Employee agrees that at all times
during the term of this Agreement:
(a) The Company shall have the right to display, and may use in its
advertising, portraits of the Employee.
(b) The Company shall have the right to advertise its business as
being carried on in the manner and tradition and according to the
standards established by the Employee.
(c) The Employee will not knowingly or intentionally do or say any
act or thing which will or may impair, damage or destroy the goodwill and
esteem for the Company of its
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suppliers, employees, patrons, customers and others who may at any time
have or have had business relations with the Company.
(d) The Employee shall encourage and recommend the use of the
services of the Company by relatives, friends and acquaintances in need of
funeral or burial services.
(e) The Employee will not encourage, recommend or approve the use at
any time of the services of any competitor of the Company.
(f) The Employee will not reveal to any third person any difference
of opinion, if there be such at any time, between him and the management
of the Company as to its personnel, policies or practices.
(g) The Employee will not knowingly or intentionally do any act or
thing detrimental to the Company or its business.
7. TERMINATION.
(a) DEATH. If the Employee dies during the term of this Agreement
and while in the employ of the Company, this Agree ment shall
automatically terminate and the Company shall have no further obligation
to the Employee or his estate except that the Company shall pay the
Employee's estate that portion of the Employee's base salary under Section
4 accrued through the date on which the Employee's death occurred. Such
payment of base salary 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.
(b) DISABILITY. If during the term of this Agreement, the Employee
shall be prevented from performing his duties hereunder by reason of
disability, and such disability shall continue for a period of six months,
then the Company may terminate this Agreement at any time after the
expiration of such six-month period. For purposes of this Agreement, the
Employee shall be deemed to have become disabled when the Board, upon the
advice of a qualified physician, shall have determined that the Employee
has become physically or mentally incapable (excluding infrequent and
temporary absences due to ordinary illness) of performing his duties under
this Agree ment. In the event of a termination pursuant to this para graph
(b), the Company shall be relieved of all its obliga tions under this
Agreement, except that the Company shall pay to the Employee, or his
estate in the event of his subsequent death, the Employee's base salary
under Section 4 through the date on which such termination shall have
occurred, reduced during such period by the amount of any benefits
received under any disability policy maintained by the Company. All such
payments to the Employee or his 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 become disabled.
(c) DISCHARGE FOR CAUSE. Prior to the end of the term of this
Agreement, the Company may discharge the Employee for Cause and terminate
this Agreement. In such case this Agree ment shall automatically terminate
and the Company shall have no further obligation to the Employee or his
estate other than to pay to the Employee or his estate in the event of his
sub sequent death that portion of the Employee's salary accrued through
the date of termination. For purposes of this Agree ment, the Company
shall have "Cause" to discharge the Employee or terminate the Employee's
employment hereunder upon (i) the Employee's commission of any felony or
any other crime involv ing moral turpitude, (ii) the Employee's failure or
refusal to perform all of his duties, obligations and agreements herein
contained or imposed by law, including his fiduciary duties, to the
satisfaction of the Board, (iii) the Employee's com mission of acts
amounting to gross negligence or willful mis conduct to the detriment of
the Company, (iv) the revocation, suspension or non-renewal of the
Employee's license as a funeral director in the State of Florida, or (v)
the Employee's breach of any provision of this Agreement or any material,
uniformly applied term or provision contained in the Company's employee
handbook.
8. RESTRICTIVE COVENANT. During the term of this Agreement and, if
the employment of the Employee is terminated for any reason (including voluntary
resignation), then for a period of two (2) years thereafter, the Employee will
not, directly or indirectly:
(i) alone or for his own account, or as a partner, member,
employee, advisor, or agent of any partnership or
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joint venture, or as a trustee, officer, director, share holder, employee,
advisor, or agent of any corporation, trust, or other business
organization or entity, encourage, support, finance, be engaged in,
interested in, or concerned with any business having an office or being
conducted within a radius of fifty (50) miles of any of the Operations,
which business is directly or indirectly in competition with the business
of the Company;
(ii) induce or assist anyone in inducing in any way any employee of
the Company to resign or sever his or her employment or to breach an
employment contract with the Company; or
(iii) own, manage, advise, encourage, support, finance, operate,
join, control, or participate in the ownership, management, operation, or
control of or be connected in any manner with any business which is or may
be in the funeral, mortuary, crematory, or burial insurance business or in
any business related thereto within a radius of fifty (50) miles of any of
the Operations.
The foregoing covenants shall not be held invalid or unen forceable
because of the scope of the territory or actions subject hereto or restricted
hereby, or the period of time within which such covenants respectively are
operative, but the maximum territory, the action subject to such covenants and
the period of time they are enforceable are subject to any determination by a
final judgment of any court which has jurisdiction over the parties and subject
matter. The foregoing shall be cumulative of any other non-competition or
similar agreements between the parties.
9. CONFIDENTIAL INFORMATION. The Employee acknowledges that in the
course of his affiliation with the Operations he has received, and in the course
of his future employment by the Company he will receive, certain trade secrets,
lists of customers, manage ment methods, operating techniques, prospective
acquisitions, employee lists, training manuals and procedures, personnel evalu
ation procedures, financial reports and other confidential informa tion and
knowledge concerning the business of the Company and its affiliates (hereinafter
collectively referred to as "Information") which the Company desires to protect.
The Employee understands that the Information is confidential and he agrees not
to reveal
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the Information to anyone outside the Company so long as the con fidential or
secret nature of the Information shall continue. The Employee further agrees
that he will at no time use the Information in competing with the Company. Upon
termination of this Agreement, the Employee shall surrender to the Company all
papers, documents, writings and other property produced by him or coming into
his pos session by or through his employment or relating to the Information and
the Employee agrees that all such materials will at all times remain the
property of the Company. The Employee further agrees to maintain as
confidential, and to not disclose to any other person (including other employees
of the Company), the terms of this Agreement (including the compensation and
benefits described in Sections 4 and 5), except that such terms may be disclosed
to the Employee's spouse, the Company's payroll clerk responsible for paying the
Employee's compensation, appropriate taxing authorities, and otherwise as
authorized by the Board. The Employee acknowl edges that a remedy at law for any
breach or attempted breach of the foregoing under this Section 9 or under
Section 8 above will be inadequate, and agrees that the Company shall be
entitled to spe cific performance and injunctive and other equitable relief in
case of any such breach or attempted breach.
10. NOTICES. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be deemed to
have been delivered on the date personally delivered or three business days
after the date mailed, postage prepaid, by certified mail, return receipt
requested, or when sent by telex or telecopy and receipt is confirmed, if
addressed to the respective parties as follows:
If to the Employee: Xx. Xxxx X. Xxxxxxxxx
, Florida
If to the Company: Carriage Services of Florida, Inc.
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: President
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
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11. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effec tive and valid
under applicable law but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such provision or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
12. ASSIGNMENT. This Agreement may not be assigned by the Employee.
Neither the Employee nor his estate shall have any right to commute, encumber or
dispose of any right to receive pay ments hereunder, it being agreed that such
payments and the right thereto are nonassignable and nontransferable.
13. BINDING EFFECT. Subject to the provisions of Sec tion 12 of this
Agreement, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, the Employee's heirs and personal representatives, and the
successors and assigns of the Company.
14. CAPTIONS. The section and paragraph headings in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. COMPLETE AGREEMENT. This Agreement represents the entire
agreement between the parties concerning the subject hereof and supersedes all
prior agreements and arrangements between the parties concerning the subject
thereof.
16. GOVERNING LAW. This Agreement shall be construed
and enforced in accordance with and governed by the laws of the
State of Florida.
17. COUNTERPARTS. This Agreement may be executed in multiple
original counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
18. PRIOR EMPLOYMENT AGREEMENTS. The Employee represents that he has
fulfilled the terms of all preexisting employment, noncompetition and
confidentiality agreements, and that his execution, delivery and performance of
this Agreement shall not interfere or conflict with any such preexisting
agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
CARRIAGE SERVICES OF FLORIDA, INC.
By: /s/ XXXX X. XXXXXX
XXXX X. XXXXXX, President
/s/ XXXX X. XXXXXXXXX
XXXX X. XXXXXXXXX
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