EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") between Xxxxxxx
Enterprises, Inc., a Louisiana corporation (the "Company"),
and Xxxxxxx X. Xxxxxxx, Xx. (the "Employee") is dated as of
August 1, 1995 (the "Agreement Date").
W I T N E S S E T H:
WHEREAS, Employee currently is employed by the Company;
WHEREAS, the Company desires to retain the services of
Employee pursuant to the terms of this Agreement, subject to
Employee's acceptance of the conditions stated herein;
WHEREAS, during the course of his employment with the
Company, Employee has or will have received extensive and
unique knowledge, training and education in, and access to
resources involving, the Death Care Business (as defined
below) at a substantial cost to the Company, which Employee
acknowledges has enhanced or substantially will enhance
Employee's skills and knowledge in such business;
WHEREAS, during the course of his employment with the
Company, Employee has had and will continue to have access
to certain valuable oral and written information, knowledge
and data relating to the business and operations of the
Company and its subsidiaries that is non-public,
confidential or proprietary in nature and is particularly
useful in the Death Care Business; and
WHEREAS, in view of the training provided by the
Company to Employee, its cost to the Company, the need for
the Company to be protected against disclosures by Employee
of the Company's and its subsidiaries' trade secrets and
other non-public, confidential or proprietary information,
the Company and Employee desire, among other things, to
prohibit Employee from disclosing or utilizing, outside the
scope and term of his employment, any non-public,
confidential or proprietary information, knowledge and data
relating to the business and operations of the Company or
its subsidiaries received by Employee during the course of
his employment, and to restrict the ability of Employee to
compete with the Company or its subsidiaries for a limited
period of time.
NOW, THEREFORE, for and in consideration of the
continued employment of Employee by the Company and the
payment of wages, salary and other compensation to Employee
by the Company, the parties hereto agree as follows:
ARTICLE I
EMPLOYMENT CAPACITY AND TERM
1. Prior Employment Agreement. Effective as of the
Agreement Date, this Agreement supersedes the Employment
Agreement dated November 1, 1992 between the Company and the
Employee (the "Prior Agreement").
2. Capacity and Duties of Employee. The Employee is
employed by the Company to render services on behalf of the
Company as Executive Vice President. As the Executive Vice
President, the Employee shall perform such duties as are
assigned to the individual holding such title by the
Company's Bylaws and such other duties, consistent with the
Employee's job title, as may be prescribed from time to time
by the Board of Directors of the Company (the "Board")
and/or the Company's Chief Executive Officer.
3. Employment Term. The term of this Agreement (the
"Employment Term") shall commence on the Agreement Date and
shall continue through October 31, 2000, subject to any
earlier termination of Employee's status as an employee
pursuant to this Agreement.
4. Devotion to Responsibilities.
During the Employment Term, the Employee shall
devote all of his business time to the business of the
Company, shall use his reasonable best efforts to perform
faithfully and efficiently his duties under this Agreement,
and shall not engage in or be employed by any other
business; provided, however, that nothing contained herein
shall prohibit the Employee from (a) serving as a member of
the board of directors, board of trustees or the like of any
for-profit or non-profit entity that does not compete with
the Company, or performing services of any type for any
civic or community entity, whether or not the Employee
receives compensation therefor, (b) investing his assets in
such form or manner as shall require no more than nominal
services on the part of the Employee in the operation of the
business of the entity in which such investment is made, or
(c) serving in various capacities with, and attending
meetings of, industry or trade groups and associations, as
long as the Employee's engaging in any activities permitted
by virtue of clauses (a), (b) and (c) above does not
materially and unreasonably interfere with the ability of
the Employee to perform the services and discharge the
responsibilities required of him under this Agreement.
Notwithstanding clause (b) above, during the Employment
Term, the Employee may not beneficially own more than 2% of
the equity interests of a business organization required to
file periodic reports with the Securities and Exchange
Commission under the Securities Exchange Act of 1934 (the
"Exchange Act") and may not beneficially own more than 2% of
the equity interests of a business organization that
competes with the Company. For purposes of this paragraph,
"beneficially own" shall have the same meaning ascribed to
that term in Rule 13d-3 under the Exchange Act.
ARTICLE II
COMPENSATION AND BENEFITS
During the Employment Term, the Company shall provide
the Employee with the compensation and benefits described
below:
1. Salary. A salary ("Base Salary") at the rate of
$300,000 per fiscal year of the Company ("Fiscal Year"),
payable to the Employee at such intervals as other salaried
employees of the Company are paid.
2. Bonus. For the period ending October 31, 1995, the
Employee shall be eligible to receive an incentive bonus,
the amount of which shall be determined pursuant to
Paragraph 5 of the Prior Agreement. This incentive bonus
shall be paid in cash no later than 30 days following the
filing of the Company's annual report on Form 10-K for the
Fiscal Year ending October 31, 1995. For the period
beginning November 1, 1995, the employee shall be eligible
to receive a bonus (the "Bonus") of up to $150,000 per
Fiscal Year. Such Bonus shall be comprised of two elements,
the quantitative element and the qualitative element:
(a) The quantitative element shall be equal to
75% of the maximum Bonus of $150,000 and shall be based on
the attainment of certain goals to be established by the
Company's Compensation Committee and Employee.
(b) The qualitative element shall be 25% of the
maximum Bonus of $150,000 and shall be awarded at the
discretion of the President. The President and Employee
shall establish incentive goals and other criteria for the
award of the qualitative element.
The Bonus shall be paid in cash no later than 30 days
following the filing of the Company's annual report on Form
10-K for the Fiscal Year in which the Bonus has been earned.
3. Benefits. The Company shall provide the Employee
with the following fringe benefits and perquisites:
(a) An automobile allowance of $720 per month.
The Company will reimburse the Employee for all gasoline,
maintenance, repairs and insurance for Employee's personal
car, as if it were a Company-owned vehicle;
(b) Reimbursement for membership dues, including
assessments and similar charges, in one or more clubs deemed
useful for business purposes in an amount not to exceed
$8,000 or such additional amounts as may be approved by the
President;
(c) First class air travel;
(d) Fully-paid insurance benefit package
available to all employees; and
(e) All other benefit programs similar to those
provided other employees of the Company.
4. 1995 Incentive Compensation Plan. The Employee
shall be eligible to receive awards under the Company's 1995
Incentive Compensation Plan (the "1995 Plan").
5. Expenses. The Employee shall be reimbursed for
reasonable out-of-pocket expenses incurred from time to time
on behalf of the Company or any subsidiary in the
performance of his duties under this Agreement, upon the
presentation of such supporting invoices, documents and
forms as the Company reasonably requests.
ARTICLE III
TERMINATION OF EMPLOYMENT
1. Death. The Employee's status as an employee shall
terminate immediately and automatically upon the Employee's
death during the Employment Term.
2. Disability. The Employee's status as an employee
may be terminated for "Disability" as follows:
(a) The Employee's status as an employee shall
terminate if the Employee has a disability that would
entitle him to receive benefits under the Company's long-
term disability insurance policy in effect at the time
either because he is Totally Disabled or Partially Disabled,
as such terms are defined in the Company's policy in effect
as of the Agreement Date or as similar terms are defined in
any successor policy. Any such termination shall become
effective on the first day on which the Employee is eligible
to receive payments under such policy (or on the first day
that he would be so eligible, if he had applied timely for
such payments).
(b) If the Company has no long-term disability
plan in effect, if (i) the Employee is rendered incapable
because of physical or mental illness of satisfactorily
discharging his duties and responsibilities under this
Agreement for a period of 90 consecutive days and (ii) a
duly qualified physician chosen by the Company and
acceptable to the Employee or his legal representatives so
certifies in writing, the Board shall have the power to
determine that the Employee has become disabled. If the
Board makes such a determination, the Company shall have the
continuing right and option, during the period that such
disability continues, and by notice given in the manner
provided in this Agreement, to terminate the status of
Employee as an employee. Any such termination shall become
effective 30 days after such notice of termination is given,
unless within such 30-day period, the Employee becomes
capable of rendering services of the character contemplated
hereby (and a physician chosen by the Company and acceptable
to the Employee or his legal representatives so certifies in
writing) and the Employee in fact resumes such services.
(c) The "Disability Effective Date" shall mean
the date on which termination of employment becomes
effective due to Disability.
3. Cause. The Company may terminate the Employee's
status as an employee for Cause. As used herein,
termination by the Company of the Employee's status as an
employee for "Cause" shall mean termination as a result of
(a) the Employee's breach of this Agreement, or (b) the
willful engaging by the Employee in gross misconduct
injurious to the Company, which in either case is not
remedied within 10 days after the Company provides written
notice to the Employee of such breach or willful misconduct.
4. Good Reason. The Employee may terminate his
status as an employee for Good Reason. As used herein, the
term "Good Reason" shall mean:
(a) The occurrence of any of the following during
the Employment Term:
(i) the assignment by the Board to the
Employee of any duties or responsibilities that are
inconsistent with the Employee's status, title and position
as Executive Vice President;
(ii) any removal of the Employee from, or any
failure to reappoint or reelect the Employee to, the
position of Executive Vice President of the Company, except
in connection with a termination of Employee's status as an
employee as permitted by this Agreement;
(iii) the Company's requiring the Employee to
be based anywhere other than in the New Orleans, Louisiana
metropolitan area, except for required travel in the
ordinary course of the Company's business;
(b) any breach of this Agreement by the Company
that continues for a period of 10 days after written notice
thereof is given by the Employee to the Company;
(c) the failure by the Company to obtain the
assumption of its obligations under this Agreement by any
successor or assign as contemplated in this Agreement; or
(d) any purported termination by the Company of
the Employee's status as an employee for Cause that is not
effected pursuant to a Notice of Termination satisfying the
requirements of this Agreement.
5. Voluntary Termination by the Company. The Company
may terminate the Employee's status as employee for other
than death, Disability or Cause.
6. Voluntary Termination by the Employee. The
Employee may terminate the Employee's status as employee for
other than Good Reason.
7. Notice of Termination. Any termination by the
Company for Disability or Cause, or by the Employee for Good
Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Article VI
Section 2 of this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice
that (a) indicates the specific termination provision in
this Agreement relied upon (b) to the extent applicable,
sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee's
employment under the provisions so indicated and (c) if the
Date of Termination (as defined below) is other than the
date of receipt of such notice, specifies the termination
date (which date shall be not more than 30 days after the
giving of such notice). The failure by the Employee or the
Company to set forth in the Notice of Termination any fact
or circumstance that contributes to a showing of Good
Reason, Disability or Cause shall not negate the effect of
the notice nor waive any right of the Employee or the
Company, respectively, hereunder or preclude the Employee or
the Company, respectively, from asserting such fact or
circumstance in enforcing the Employee's or the Company's
rights hereunder.
8. Date of Termination. "Date of Termination" means
(a) if Employee's employment is terminated by reason of his
death or Disability, the Date of Termination shall be the
date of death of Employee or the Disability Effective Date,
as the case may be, (b) if Employee's employment is
terminated by the Company for Cause, or by Employee for Good
Reason, the date of delivery of the Notice of Termination or
any later date specified therein, (which date shall not be
more than 30 days after the giving of such notice) as the
case may be, (c) if the Employee's employment is terminated
by the Company for reasons other than death, Disability or
Cause, the Date of Termination shall be the date on which
the Company notifies the Employee of such termination, and
(d) if the Employee's employment is terminated by the
Employee for reasons other than Good Reason, the Date of
Termination shall be the date on which the Employee notifies
the Company of such termination.
ARTICLE IV
OBLIGATIONS UPON TERMINATION
1. Death. If the Employee's status as an employee is
terminated by reason of the Employee's death, this Agreement
shall terminate without further obligations to the
Employee's legal representatives under this Agreement, other
than the obligation to make any payments due pursuant to
employee benefit plans maintained by the Company or its
subsidiaries.
2. Disability. If Employee's status as an employee
is terminated by reason of Employee's Disability, this
Agreement shall terminate without further obligation to the
Employee, other than the obligation to make any payments due
pursuant to employee benefit plans maintained by the Company
or its subsidiaries.
3. Termination by Company for Reasons other than
Death, Disability or Cause; Termination by Employee for Good
Reason. If the Company terminates the Employee's status as
an employee for reasons other than death, Disability or
Cause, or the Employee terminates his employment for Good
Reason, then
(a) the Company shall pay to the Employee an
amount equal to two times the amount of Base Salary in
effect at the Date of Termination, payable in equal
installments over a two-year period at such intervals as
other salaried employees of the Company are paid; and
(b) with respect to all performance-based options
granted to the Employee pursuant to the 1995 Plan,
(i) if the performance goals have been met as
of the Date of Termination, then such options
shall become exercisable as of the Date of
Termination (if not already exercisable) and shall
expire on the date that is the later of:
(A) 30 days after the Date of
Termination or
(B) 30 days after the first date on
which the exercise of the options and sale of
the underlying securities will not (1) be
matched with purchases or sales of the
Company's common stock prior to such Date of
Termination such as to cause the Employee to
incur a liability to the Company under
Section 16 of the Exchange Act and (2)
destroy the Section 16 exemption for the
grant of the options.
(ii) if the performance goals have not been
met as of the Date of Termination, then
(A) if the performance goals are not met
by the close of business on the day that is
180 days after the Date of Termination, then
the options shall expire on such day; and
(B) if the performance goals are met by
the close of business on the day that is 180
days after the Date of Termination, then the
options shall become exercisable as of the
date such performance goals are met (the
"Vesting Date") and shall expire on the date
that is the later of:
(1) 30 days after the Vesting Date
or
(2) 30 days after the first date on
which the exercise of the options and
sale of the underlying securities will
not (I) be matched with purchases or
sales of the Company's common stock
prior to such Date of Termination such
as to cause the Employee to incur a
liability to the Company under Section
16 of the Exchange Act and (II) destroy
the Section 16 exemption for the grant
of the options.
4. Cause. If the Employee's status as an employee is
terminated by the Company for Cause, this Agreement shall
terminate without further obligation to the Employee other
than for obligations imposed by law and obligations imposed
pursuant to any employee benefit plan maintained by the
Company or its subsidiaries.
5. Termination by Employee for Reasons other than
Good Reason. If the Employee's status as an employee is
terminated by the Employee for reasons other than Good
Reason, then the Company shall pay to the Employee an amount
equal to a single year's Base Salary in effect at the Date
of Termination, payable in equal installments over a two-
year period at such intervals as other salaried employees of
the Company are paid.
6. Resignation. If Employee is a director of the
Company and his employment is terminated for any reason
other than death, the Employee shall, if requested by the
Company, immediately resign as a director of the Company.
If such resignation is not received when so requested, the
Employee shall forfeit any right to receive any payments
pursuant to this Agreement.
ARTICLE V
NONDISCLOSURE, NONCOMPETITION AND PROPRIETARY RIGHTS
1. Certain Definitions. For purposes of this
Agreement, the following terms shall have the following
meanings:
(a) "Confidential Information" means any
information, knowledge or data of any nature and in any form
(including information that is electronically transmitted or
stored on any form of magnetic or electronic storage media)
relating to the past, current or prospective business or
operations of the Company and its subsidiaries, that at the
time or times concerned is not generally known to persons
engaged in businesses similar to those conducted or
contemplated by the Company and its subsidiaries (other than
information known by such persons through a violation of an
obligation of confidentiality to the Company), whether
produced by the Company and its subsidiaries or any of their
consultants, agents or independent contractors or by
Employee, and whether or not marked confidential, including
without limitation information relating to the Company's or
its subsidiaries' products and services, business plans,
business acquisitions, processes, product or service
research and development methods or techniques, training
methods and other operational methods or techniques, quality
assurance procedures or standards, operating procedures,
files, plans, specifications, proposals, drawings, charts,
graphs, support data, trade secrets, supplier lists,
supplier information, purchasing methods or practices,
distribution and selling activities, consultants' reports,
marketing and engineering or other technical studies,
maintenance records, employment or personnel data, marketing
data, strategies or techniques, financial reports, budgets,
projections, cost analyses, price lists, formulae and
analyses, employee lists, customer records, customer lists,
customer source lists, proprietary computer software, and
internal notes and memoranda relating to any of the
foregoing.
(b) "Death Care Business" means (i) the owning
and operating of funeral homes and cemeteries, including
combined funeral home and cemetery facilities, (ii) the
offering of a complete range of services and products to
meet families' funeral needs, including prearrangement,
family consultation, the sale of caskets and related funeral
and cemetery products and merchandise, the removal,
preparation and transportation of remains, cremation, the
use of funeral home facilities for visitation and worship,
and related transportation services, (iii) the marketing and
sale of funeral services and cemetery property on an at-need
or prearranged basis, (iv) providing, managing and
administering financing arrangements (including trust funds,
escrow accounts, insurance and installment sales contracts)
for prearranged funeral plans and cemetery property and
merchandise, (v) providing interment services, the sale (on
an at-need or prearranged basis) of cemetery property
including lots, lawn crypts, family and community mausoleums
and related cemetery merchandise such as monuments,
memorials and burial vaults, (vi) the maintenance of
cemetery grounds pursuant to perpetual care contracts and
laws or on a voluntary basis, and (vii) offering mausoleum
design, construction and sales services.
2. Nondisclosure of Confidential Information. During
the Employment Term, Employee shall hold in a fiduciary
capacity for the benefit of the Company all Confidential
Information which shall have been obtained by Employee
during Employee's employment (whether prior to or after the
Agreement Date) and shall use such Confidential Information
solely within the scope of his employment with and for the
exclusive benefit of the Company. For a period of five
years after the Employment Term, commencing with the Date of
Termination, Employee agrees (a) not to communicate, divulge
or make available to any person or entity (other than the
Company) any such Confidential Information, except upon the
prior written authorization of the Company or as may be
required by law or legal process, and (b) to deliver
promptly to the Company any Confidential Information in his
possession, including any duplicates thereof and any notes
or other records Employee has prepared with respect thereto.
In the event that the provisions of any applicable law or
the order of any court would require Employee to disclose or
otherwise make available any Confidential Information,
Employee shall give the Company prompt prior written notice
of such required disclosure and an opportunity to contest
the requirement of such disclosure or apply for a protective
order with respect to such Confidential Information by
appropriate proceedings.
3. Limited Covenant Not to Compete. During the
Employment Term and for a period of two years thereafter,
commencing with the Date of Termination, Employee agrees
that, with respect to each State of the United States or
other jurisdiction, or specified portions thereof, in which
the Employee regularly (a) makes contact with customers of
the Company or any of its subsidiaries, (b) conducts the
business of the Company or any of its subsidiaries or (c)
supervises the activities of other employees of the Company
or any of its subsidiaries, as identified in Appendix "A"
attached hereto and forming a part of this Agreement, and in
which the Company or any of its subsidiaries engages in the
Death Care Business on the Date of Termination
(collectively, the "Subject Areas"), Employee will restrict
his activities within the Subject Areas as follows:
(a) Employee will not, directly or indirectly,
for himself or others, own, manage, operate, control, be
employed in an executive, managerial or supervisory capacity
by, or otherwise engage or participate in or allow his
skill, knowledge, experience or reputation to be used in
connection with, the ownership, management, operation or
control of, any company or other business enterprise engaged
in the Death Care Business within any of the Subject Areas;
provided, however, that nothing contained herein shall
prohibit Employee from making passive investments as long as
Employee does not beneficially own more than 2% of the
equity interests of a business enterprise engaged in the
Death Care Business within any of the Subject Areas. For
purposes of this paragraph, "beneficially own" shall have
the same meaning ascribed to that term in Rule 13d-3 under
the Exchange Act.
(b) Employee will not call upon any customer of
the Company or its subsidiaries for the purpose of
soliciting, diverting or enticing away the business of such
person or entity, or otherwise disrupting any previously
established relationship existing between such person or
entity and the Company or its subsidiaries;
(c) Employee will not solicit, induce, influence
or attempt to influence any supplier, lessor, licensor,
potential acquiree or any other person who has a business
relationship with the Company or its subsidiaries, or who on
the Date of Termination is engaged in discussions or
negotiations to enter into a business relationship with the
Company or its subsidiaries, to discontinue or reduce the
extent of such relationship with the Company or its
subsidiaries; and
(d) Employee will not make contact with any of
the employees of the Company or its subsidiaries with whom
he had contact during the course of his employment with the
Company for the purpose of soliciting such employee for
hire, whether as an employee or independent contractor, or
otherwise disrupting such employee's relationship with the
Company or its subsidiaries.
(e) Employee further agrees that, for a period of
one year from and after the Date of Termination, Employee
will not hire, on behalf of himself or any company engaged
in the Death Care Business with which Employee is
associated, any employee of the Company or its subsidiaries
as an employee or independent contractor, whether or not
such engagement is solicited by Employee; provided, however,
that the restriction contained in this subsection (e) shall
not apply to Company employees who reside in, or are hired
by Employee to perform work in, any of the Subject Areas
located within the States of Virginia, Arkansas or Georgia.
Employee agrees that he will from time to time upon the
Company's request promptly execute any supplement,
amendment, restatement or other modification of Appendix "A"
as may be necessary or appropriate to correctly reflect the
jurisdictions which, at the time of such modification,
should be covered by Appendix "A" and this Article V Section
3. Furthermore, Employee agrees that all references to
Appendix "A" in this Agreement shall be deemed to refer to
Appendix "A" as so supplemented, amended, restated or
otherwise modified from time to time.
4. Injunctive Relief; Other Remedies. Employee
acknowledges that a breach by Employee of Section 2 or 3 of
this Article V would cause immediate and irreparable harm to
the Company for which an adequate monetary remedy does not
exist; hence, Employee agrees that, in the event of a breach
or threatened breach by Employee of the provisions of
Section 2 or 3 of this Article V during or after the
Employment Term, the Company shall be entitled to injunctive
relief restraining Employee from such violation without the
necessity of proof of actual damage or the posting of any
bond, except as required by non-waivable, applicable law.
Nothing herein, however, shall be construed as prohibiting
the Company from pursuing any other remedy at law or in
equity to which the Company may be entitled under applicable
law in the event of a breach or threatened breach of this
Agreement by Employee, including without limitation the
recovery of damages and/or costs and expenses, such as
reasonable attorneys' fees, incurred by the Company as a
result of any such breach. In addition to the exercise of
the foregoing remedies, the Company shall have the right
upon the occurrence of any such breach to cancel any unpaid
salary, bonus, commissions or reimbursements otherwise
outstanding at the Date of Termination. In particular,
Employee acknowledges that the payments provided under
Article IV Sections 3 and 5 are conditioned upon Employee
fulfilling any noncompetition and nondisclosure agreements
contained in this Article V. In the event Employee shall at
any time materially breach any noncompetition or
nondisclosure agreements contained in this Article V, the
Company may suspend or eliminate payments under Article IV
during the period of such breach. Employee acknowledges
that any such suspension or elimination of payments would be
an exercise of the Company's right to suspend or terminate
its performance hereunder upon Employee's breach of this
Agreement; such suspension or elimination of payments would
not constitute, and should not be characterized as, the
imposition of liquidated damages.
5. Requests for Waiver in Cases of Undue Hardship.
In the event that Employee should find any of the
limitations of Article V Section 3 (including without
limitation the geographic restrictions of Appendix "A") to
impose a severe hardship on Employee's ability to secure
other employment, Employee may make a request to the Company
for a waiver of the designated limitations before accepting
employment that otherwise would be a breach of Employee's
promises and obligations under this Agreement. Such request
must be in writing and clearly set forth the name and
address of the organization with that employment is sought
and the location, position and duties that Employee will be
performing. The Company will consider the request and, in
its sole discretion, decide whether and on what conditions
to grant such waiver.
6. Governing Law of this Article V; Consent to
Jurisdiction. Any dispute regarding the reasonableness of
the covenants and agreements set forth in this Article V, or
the territorial scope or duration thereof, or the remedies
available to the Company upon any breach of such covenants
and agreements, shall be governed by and interpreted in
accordance with the laws of the State of the United States
or other jurisdiction in which the alleged prohibited
competing activity or disclosure occurs, and, with respect
to each such dispute, the Company and Employee each hereby
irrevocably consent to the exclusive jurisdiction of the
state and federal courts sitting in the relevant State (or,
in the case of any jurisdiction outside the United States,
the relevant courts of such jurisdiction) for resolution of
such dispute, and agree to be irrevocably bound by any
judgment rendered thereby in connection with such dispute,
and further agree that service of process may be made upon
him or it in any legal proceeding relating to this Article V
and/or Appendix "A" by any means allowed under the laws of
such jurisdiction. Each party irrevocably waives any
objection he or it may have as to the venue of any such
suit, action or proceeding brought in such a court or that
such a court is an inconvenient forum.
7. Employee's Understanding of this Article.
Employee hereby represents to the Company that he has read
and understands, and agrees to be bound by, the terms of
this Article. Employee acknowledges that the geographic
scope and duration of the covenants contained in Article V
Section 3 are the result of arm's-length bargaining and are
fair and reasonable in light of (i) the importance of the
functions performed by Employee and the length of time it
would take the Company to find and train a suitable
replacement, (ii) the nature and wide geographic scope of
the operations of the Company and its subsidiaries, (iii)
Employee's level of control over and contact with the
business and operations of the Company and its subsidiaries
in all jurisdictions where same are conducted and (iv) the
fact that all facets of the Death Care Business are
conducted by the Company and its subsidiaries throughout the
geographic area where competition is restricted by this
Agreement. It is the desire and intent of the parties that
the provisions of this Agreement be enforced to the fullest
extent permitted under applicable law, whether now or
hereafter in effect and, therefore, to the extent permitted
by applicable law, the parties hereto waive any provision of
applicable law that would render any provision of this
Article V invalid or unenforceable.
ARTICLE VI
MISCELLANEOUS
1. Binding Effect.
(a) This Agreement shall be binding upon and
inure to the benefit of the Company and any of its
successors or assigns.
(b) This Agreement is personal to the Employee
and shall not be assignable by the Employee without the
consent of the Company (there being no obligation to give
such consent) other than such rights or benefits as are
transferred by will or the laws of descent and distribution.
(c) The Company shall require any successor to or
assignee of (whether direct or indirect, by purchase,
merger, consolidation or otherwise) all or substantially all
of the assets or businesses of the Company (i) to assume
unconditionally and expressly this Agreement and (ii) to
agree to perform all of the obligations under this Agreement
in the same manner and to the same extent as would have been
required of the Company had no assignment or succession
occurred, such assumption to be set forth in a writing
reasonably satisfactory to the Employee. In the event of
any such assignment or succession, the term "Company" as
used in this Agreement shall refer also to such successor or
assign.
2. Notices. All notices hereunder must be in writing
and shall be deemed to have given upon receipt of delivery
by: (a) hand (against a receipt therefor), (b) certified or
registered mail, postage prepaid, return receipt requested,
(c) a nationally recognized overnight courier service
(against a receipt therefor) or (d) telecopy transmission
with confirmation of receipt. All such notices must be
addressed as follows:
If to the Company, to:
Xxxxxxx Enterprises, Inc.
000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, III
If to the Employee, to:
Xxxxxxx X. Xxxxxxx, Xx.
000 Xxx Xx. Xxxxx, #000
Xxxxxxxx, XX 00000
or such other address as to which any party hereto may have
notified the other in writing.
3. Governing Law. This Agreement shall be construed
and enforced in accordance with and governed by the internal
laws of the State of Louisiana without regard to principles
of conflict of laws, except as expressly provided in Article
V Section 6 above with respect to the resolution of disputes
arising under, or the Company's enforcement of, Article V of
this Agreement.
4. Withholding. The Employee agrees that the Company
has the right to withhold, from the amounts payable pursuant
to this Agreement, all amounts required to be withheld under
applicable income and/or employment tax laws, or as
otherwise stated in documents granting rights that are
affected by this Agreement.
5. Severability. If any term or provision of this
Agreement (including without limitation those contained in
Appendix "A"), or the application thereof to any person or
circumstance, shall at any time or to any extent be invalid,
illegal or unenforceable in any respect as written, Employee
and the Company intend for any court construing this
Agreement to modify or limit such provision temporally,
spatially or otherwise so as to render it valid and
enforceable to the fullest extent allowed by law. Any such
provision that is not susceptible of such reformation shall
be ignored so as to not affect any other term or provision
hereof, and the remainder of this Agreement, or the
application of such term or provision to persons or
circumstances other than those as to which it is held
invalid, illegal or unenforceable, shall not be affected
thereby and each term and provision of this Agreement shall
be valid and enforced to the fullest extent permitted by
law.
6. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement shall not operate
or be construed as a waiver of any subsequent breach
thereof.
7. Remedies Not Exclusive. No remedy specified
herein shall be deemed to be such party's exclusive remedy,
and accordingly, in addition to all of the rights and
remedies provided for in this Agreement, the parties shall
have all other rights and remedies provided to them by
applicable law, rule or regulation.
8. Company's Reservation of Rights. Employee
acknowledges and understands that the Employee serves at the
pleasure of the Board and that the Company has the right at
any time to terminate Employee's status as an employee of
the Company, or to change or diminish his status during the
Employment Term, subject to the rights of the Employee to
claim the benefits conferred by this Agreement.
9. JURY TRIAL WAIVER. THE PARIES HEREBY WAIVE TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT.
10. Survival. The rights and obligations of the
Company and Employee contained in Article V of this
Agreement shall survive the termination of the Agreement.
Following the Date of Termination, each party shall have the
right to enforce all rights, and shall be bound by all
obligations, of such party that are continuing rights and
obligations under this Agreement.
11. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to
be an original but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have
caused this Agreement to be executed as of the Agreement
Date.
XXXXXXX ENTERPRISES, INC.
By: _________________________
Xxxxx X. XxXxxxxxx
Compensation Committee Chairman
EMPLOYEE:
___________________________
Xxxxxxx X. Xxxxxxx, Xx.
Appendix "A"
to Employment Agreement
between Xxxxxxx Enterprises, Inc.
and Xxxxxxx X. Xxxxxxx, Xx.
Revision No. 0 of Appendix "A",
Effective as of August 1, 1995;
Updated to October 2, 1995
Jurisdictions In Which Competition
Is Restricted As Provided
In Article V Section 0
X. Xxxxxx xxx Xxxxxxxxxxx xx xxx Xxxxxx Xxxxxx:
1. Louisiana-- The following parishes in the State of
Louisiana:
Orleans, St. Xxxxxxx, St. Tammany, Plaquemines,
Jefferson.
2. Florida-- The following counties in the State of
Florida:
Seminole, Dade, Hillsborough, Xxxxx, Orange, Pinellas,
Indian River, Palm Beach, Lake, Brevard, Broward,
Monroe, Collier, Pasco, Manatee, Polk, Hardee, Nassau,
Baker, Clay, St. Xxxxx, St. Lucie, Osceola,
Ockeechobee, Xxxxxx, Xxxxxx
as well as any other counties in the State of Florida
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination, with the exception of
Volusia county.
3. Texas-- The following counties in the State of Texas:
Xxxxxxx, Xxxxxx, Collin, Tarrant, Lamar, Harris,
Denton, Johnson, Rockwall, Brazoria, Xxxxxxxxx, Van
Zandt, Hunt, Ellis, Fannin, Grayson, Wise, Parker, Red
River, Delta, Galveston, Ft. Bend, Waller, Montgomery,
Liberty, Chambers, Cooke, Hood, Bosque, Hill, Matagorda
Agreed to and Accepted:
Xxxxxxx Enterprises, Inc. Employee
By: _____________________ ________________
Its: Compensation Committee Chairman Date: ________________
Date: ___________________
as well as any other counties in the State of Texas in
which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
4. Maryland-- The following counties in the State of
Maryland:
Baltimore City, Xxxxxx, Baltimore County, Prince
Xxxxxx'x, Xxxx Arundel, Montgomery, Xxxxxxx, Xxxxxxxxx,
Harford, Calvert, Charles, Kent, Queen Anne's, Talbot,
Washington
as well as any other counties in the State of Maryland
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
5. Virginia-- The following counties in the State of
Virginia:
Chesterfield, Roanoke, Rockingham, Fairfax, Tazewell,
Goochland, Pulaski, Albemarle, Hanover, Henrico,
Xxxxxxxxx, Xxxxxx, Powhatan, Xxxxxxx City, Prince
George, Bedford, Montgomery, Franklin, Botetourt,
Craig, Floyd, Augusta, Shenandoah, Page, Xxxxxx, Prince
Xxxxxxx, McDowell, Bland, Xxxxxx, Xxxxxxx, Cumberland,
Fluvanna, Louisa, Wythe, Giles, Carroll, Orange,
Buckingham, Nelson, King Xxxxxxx, New Kent,
Spotsylvania, Xxxxxxxx, Buchanan, Dickenson, Loudoun,
Arlington, Scott, Washington, Xxxxxx, Xxxxxxxxx
as well as any other counties in the State of Virginia
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
6. West Virginia-- The following counties in the State of
West Virginia:
Raleigh, Kanawha, Fayette, Berkeley, Boone, Summers,
Wyoming, Clay, Lincoln, Jackson, Putnam, Roane,
Greenbriar, Nicholas, Logan, Wayne, McDowell, Morgan,
Jefferson, Mercer, Mingo, Ohio
as well as any other counties in the State of West
Virginia in which the Employee regularly (a) makes
contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company
Agreed to and Accepted:
Employee
________________________
Date: __________________
or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of
its subsidiaries as of the Date of Termination.
7. Puerto Rico-- The following towns in the Commonwealth
of Puerto Rico:
Bayamon, San Xxxx, Cayey, Canovanas, Ponce, Caguas,
Carolina, Humacao, Toa Baja, Toa Alta, Nranjito, Aguas
Buenas, Guaynabo, Comereo, Catano, Xxxx Xxxx, Xxxxxxx,
San Xxxxxxx, Guayama, Xxxxxxx, Aibonito, Loita, Rio
Grande, Las Marias, Xxxxxx, Xxxxx Xxxx, Jajuja, Utuado,
Adjuntas Puenulas, Xxxxxxxx, Alto, Gurabo, Cidra,
Yagucoa and Naguabo
as well as any other towns in the Commonwealth of
Puerto Rico in which the Employee regularly (a) makes
contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company
or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of
its subsidiaries as of the Date of Termination.
8. North Carolina-- The following counties in the State
of North Carolina:
Catawba, Wilson, Guilford, Haywood, Johnston, Wake,
Wilkes, Craven, Nash, Iredell, Burke, Caldwell,
Lincoln, Alexander, Cleveland, Xxxxxx, Xxxxx,
Edgecombe, Pitt, Davidson, Randolph, Forsyth, Stokes,
Rockingham, Xxxxxxx, Alamance, Xxxxxxx, Buncombe,
Xxxxxxxxx, Transylvania, Swain, Madison, Sampson,
Franklin, Durham, Harnett, Granville, Chatham,
Alleghany, Surry, Ashe, Watauga, Yadkin, Pamilco,
Halifax, Warren, Swain, Carteret, Jones, Lenoir,
Beaufort
as well as any other counties in the State of North
Carolina in which the Employee regularly (a) makes
contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company
or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of
its subsidiaries as of the Date of Termination.
9. South Carolina-- The following counties in the State
of South Carolina:
Greenville, Charleston, Aiken, Pickens, Laurens,
Spartanburg, Xxxxxxxx, Abbeville, Berkeley, Dorchester,
Colleton, Edgefield, Saluda, Lexington, Orangeburg,
Barnwell
as well as any other counties in the State of South
Carolina in which the Employee regularly (a) makes
Agreed to and Accepted:
Employee
________________________
Date: __________________
contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company
or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of
its subsidiaries as of the Date of Termination.
10. Tennessee-- The following counties in the State of
Tennessee:
Davidson, Sumner, Robertson, Knox, Sullivan, Sevier,
Wilson, Rutherford, Williamson, Cheatham, Trousadale,
Macon, Montgomery, Jefferson, Grainger, Union,
Anderson, Loudon, Blount, Roane, Greene, Washington,
Carter, Johnson, Hawkins, Cocke, Xxxxx, Lincoln
as well as any other counties in the State of Tennessee
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
11. Arkansas-- The following counties in the State of
Arkansas:
Saline, Pulaski, Hot Spring, Garland, Perry, Grant,
Lonoke, White, Jefferson, Faulkner, Dallas, Xxxxx,
Ouachita, Xxxxxxxxxx, Xxxxxxx
as well as any other counties in the State of Arkansas
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
12. Georgia-- The following counties in the State of
Georgia:
Xxxx, Cherokee, Xxxxx, Dekalb, Xxxxxx, Xxxxxxx,
Paulding, Bartow, Pickins, Forsyth, Dawson, Xxxxxx,
Xxxxxxx, Rockdale, Newton, Butts, Spalding, Gwinnett,
Fayette, Coweta, Xxxxxxx, Richmond
as well as any other counties in the State of Georgia
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
13. Alabama-- The following counties in the State of
Alabama:
Agreed to and Accepted:
Employee
________________________
Date: __________________
Mobile, Madison, Baldwin, Escambia, Monroe, Washington,
Jackson, Marshall, Xxxxxx, Limestone, Xxxxxx
as well as any other counties in the State of Alabama
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
14. Mississippi-- The following counties in the State of
Mississippi:
Hinds, Madison, Rankin, Simpson, Copiah, Xxxxxxxxx,
Xxxxxx, Yazoo, Xxxxxxx, Xxxxxx
as well as any other counties in the State of
Mississippi in which the Employee regularly (a) makes
contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company
or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of
its subsidiaries as of the Date of Termination.
15. Pennsylvania-- The following counties in the State of
Pennsylvania:
Xxxxxxxxxx, Philadelphia, Bucks, Delaware, Xxxxxxx,
Berks, Lehigh, York, Northampton
as well as any other counties in the State of
Pennsylvania in which the Employee regularly (a) makes
contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company
or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of
its subsidiaries as of the Date of Termination.
16. Kentucky-- The following counties in the State of
Kentucky:
Pike, Martin, Floyd, Knoll, Letcher, Allen, Xxxxxxx
as well as any other counties in the State of Kentucky
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
17. Ohio-- The following counties in the State of Ohio:
Agreed to and Accepted:
Employee
________________________
Date: __________________
Belmont, Licking, Jefferson, Monroe, Harrison, Noble,
Guernsey, Muskingum, Knox, Fairfield, Perry, Delaware,
Franklin, Coshocton
as well as any other counties in the State of Ohio in
which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
18. The District of Columbia.
19. Kansas-- The following counties in the State of Kansas:
Xxxxxxx, Leavenworth, Johnson, Miami, Franklin, Osage,
Shawnee, Jefferson
as well as any other counties in the State of Kansas in
which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
20. Missouri-- The following counties in the State of
Missouri:
Boone, Audrain, Callaway, Cole, Cooper, Howard,
Moniteau, Osage, Xxxxxxxx
as well as any other counties in the State of Missouri
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
21. Nebraska-- The following counties in the State of
Nebraska:
Lancaster, Otoe, Sarpy, Gage, Saline, Seward, Saunders,
Cass, Xxxxxx
Agreed to and Accepted:
Employee
________________________
Date: __________________
as well as any other counties in the State of Nebraska
in which the Employee regularly (a) makes contact with
customers of the Company or any of its subsidiaries,
(b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other
employees of the Company or any of its subsidiaries as
of the Date of Termination.
Employee and the Company agree that, throughout the
Employment Term, Employee shall comply with all of the
requirements and restrictions set forth in Article V of
the Agreement of which this Appendix "A" forms a part;
however, Employee and the Company agree that,
notwithstanding anything to the contrary contained in
Article V, Section 3 of the Agreement, Employee shall
be required to restrict his post-employment activities
in the State of Nebraska only to: (i) complying with
the restrictions set forth in Article V, Section 2 of
the Agreement and (ii) refraining from calling upon any
customer of the Company or its subsidiaries with whom
Employee has done business and/or had personal contact
for the purpose of soliciting, diverting or enticing
away the business of such person or entity, or
otherwise disrupting any previously established
relationship existing between such person or entity and
the Company or its subsidiaries. The parties hereby
acknowledge and agree that this modification to the
restrictions of Article V, Section 3 as they relate to
post-employment competition in the State of Nebraska is
being entered into solely to comply with the
limitations provided in Nebraska law on the extent to
which noncompetition agreements may be enforced. This
modification does not reflect the parties' agreement as
to the extent of the limitations upon competition
necessary to protect the legitimate interests of the
Company; rather, the provisions of Article V of the
Agreement reflect such agreement.
22. New Jersey-- The following counties in the State of New
Jersey:
Salem, Burlington, Xxxxxx, Hunterdon
as well as any other counties in the State of New
Jersey in which the Employee regularly (a) makes
contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company
or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of
its subsidiaries as of the Date of Termination.
B. Other Jurisdictions:
1. Mexico-- The following delegation or municipios in the
Country of Mexico:
Cuernavaca, Xxxxxx Xxxxxx, Tlalnepantla, Xxxxxxxxxx,
Temixco, Miacatlan, Jiutepec, Tepoztlan, Huitzilac,
Tenango, Tenancingo, Xxxxxx Xxxxxxx, Iztacalco,
Iztapalapa, Coyoacan, Xxxxxx Xxxxxxx, Jilotepec,
Cuautitlan, Xxxxx, Iztlahuaca, Xxxxxxx X. Xxxxxx,
Azcapotzalco, Cuajimalpa xx Xxxxxxx, Xxxxxxxxxx and
Xxxxxxxx
as well as any other delegation or municipios in the
Country of Mexico in which the Employee regularly (a)
makes contact with customers of the Company or any of
its subsidiaries, (b) conducts the business of the
Company or any of its subsidiaries or (c) supervises
the activities of other employees of the Company or any
of its subsidiaries as of the Date of Termination.
2. Australia-- The following councils in the Country of
Australia:
Xxxxxxxxxx, Newcastle, Ku-Ring-Gai, Pittwater, Mosman,
Port Xxxxxxxx, Warringah, North Sydney, South Sydney,
Maroochydore, Beaudesert, Caboolture, Redland,
Maroochy, Gatton, Toowoomba, Kilcoy, Brisbane, Gold
Coast, Pine Rivers, Redcliffe, Woodville, Nunawading,
Brunswick, Mornington, Essendon, Brighton,
Broadmeadows, Moorabbin, Lake Mocquarie, Hornsby,
Landsborough, Widgee, Moreton, Caloundra, Noosa,
Kingaroy, Albert, Logan, Hindmarsh, West Torrens,
Oakley, Box Hill, Melbourne, Frankston, Coburg, Bulla
and Sandringham
as well as any other councils in the Country of
Australia in which the Employee regularly (a) makes
contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company
or any of its subsidiaries or (c) supervises the
activities of other employees of the Company or any of
its subsidiaries as of the Date of Termination.
Agreed to and Accepted:
Employee
__________________________
Date:_____________________
