EXHIBIT 10.19
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 7th day of January, 1997, is between
CARRIAGE FUNERAL SERVICES OF CALIFORNIA, INC., a California corporation (the
"Company"), and XXXX XXXXXX, a resident of Contra Costa County, California (the
"Employee").
Employee was a principal shareholder of CNM, which the Company
acquired through merger. Employee managed the CNM businesses for over 26 years.
Through such experience, Employee has acquired outstanding and unique skills and
abilities and an extensive knowledge of the Company's business and the cemetery
and mortuary industries. Company and its parent, Carriage Services, Inc.
("Carriage") desire Employee's continued services in order to retain his
experience, skills, abilities and knowledge, and Employee desires to continue to
be employed by Company on the terms set forth below.
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 term of this Agreement shall be renewed on an annual basis thereafter,
unless terminated by either party upon thirty (30) days notice prior to the end
of the term then in effect. 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 Carriage and
shall report to, and be subject to, the Board of Directors of the Company (the
"Board"), and to Carriage's Board of Directors. The Employee shall serve as
President of the Company and of its wholly-owned subsidiaries, Xxxxxx & Xxxxxxx
Mortuaries and Rolling Hills Memorial Park, both California corporations.
Employee shall serve as a member of the Board, and as a member of the Board of
Directors of each of the Company's wholly-owned subsidiaries. Employee shall
consult with Carriage and the Company as to strategic acquisitions in the State
of California (the "Territory") and elsewhere, shall assist and engage in
Company's corporate development activities, and shall make available to Carriage
advice and consultation in all areas of management and administration of funeral
homes and cemeteries. Employee shall not be required to relocate from the San
Francisco Bay Area as a condition of his employment hereunder.
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. Employee shall perform his
services hereunder during such hours and at such locations as he shall determine
in
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his sole discretion. 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.
4. COMPENSATION. During the term of this Agreement, the Company
shall pay the Employee a salary of $12,500.00 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. During the term of
this Agreement, the annual salary payable to Employee ("BASE SALARY") shall be
subject to increase at such times and in such amounts to be determined by the
Board. In addition, Employee shall be entitled to receive such bonuses as shall
be determined by the Board, in its sole discretion, and to participate in stock
option programs made available to key management, in the sole discretion of the
Board. 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. In
addition to the Base Salary and any other bonuses or incentives so awarded,
Company shall pay to Employee a finder's fee for each cemetery, mortuary or
related business, located outside the Territory, acquired by the Company,
Carriage or any other Subsidiary of Carriage, whether by means of a merger,
purchase of assets or stock or other transaction, which was so acquired as a
direct consequence of the efforts of the Employee, as determined by the Board in
its sole discretion. Such fee shall be paid upon the consummation of any such
acquisition and
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shall be equal to one percent (1%) of the purchase price paid by the Company (or
such other acquiring entity). In lieu of the payment of such finder's fee,
Employee may elect to have the acquired businesses be included in the "Target
Operations" as defined in and pursuant to the Carriage Partners Plan and the
related Plan Adoption Agreement of even date herewith between the Company and
Employee; provided, however, that Employee may not make such election if the
operations of the acquired businesses shall be principally located in a
geographical area within a "Territory" designated as such pursuant to another
Carriage Partners Plan in existence on the date of such acquisition's
consummation. If the Company's facilities and/or operations managed by Employee
increases by reason of such acquisition, Employee and Company shall meet and
discuss any increases in Employee's Base Salary which may be appropriate
following the closing of each such transaction.
5. BENEFITS. In addition to the base salary under Section 4, during
the term of this Agreement, the Employee shall be entitled to participate in the
benefits described in Exhibit A attached hereto (subject to modification from
time to time adopted by Carriage on a uniform basis); notwithstanding the
foregoing, additional fringe benefits to be made available to Employee by the
Company shall include, but not be limited to, the following:
(a) participation in an Incentive Compensation Plan covering the
Xxxxxx & Xxxxxxx Mortuaries and Rolling Hills Memorial Park, to be
established by the Company upon execution of this Agreement;
(b) an automobile allowance, pursuant to which Company shall provide
Employee with the use of a 1995 Jeep Cherokee owned by Company and
replacements thereof not more frequently than every two years, with
optional equipment selected by Employee and Company shall pay all
operating expenses of automobile and procure and maintain an automobile
liability insurance policy with coverage in amounts reasonably acceptable
to Employee and the Company;
(c) an expense allowance, pursuant to which Company shall, in
accordance with its policies and procedures, promptly reimburse Employee
for reasonable expenses incurred by Employee in connection with Company's
business, including, without limitation, travel expenses, food and lodging
while
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away from home, which expenses shall be allocated to the Company and to
Carriage based upon the nature of the Employee's duties in connection
therewith; and
(d) a Club Membership, pursuant to which Company shall pay all
membership dues and expenses of Employee for one club of his choosing.
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 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.
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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. Company may terminate Employee for cause if
Employee commits any material act of dishonesty, is convicted of a felony,
materially breaches any of Employee's obligations hereunder or is guilty
of intentional misconduct or gross negligence of Employee's duties under
this Agreement, or engages in conduct which is materially detrimental to
the Company, by delivering to Employee prior
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written notice in the manner set forth in Section 9, setting forth in
reasonable detail the basis for such termination. Any objection by
Employee to termination of employment pursuant to the provisions of this
Section must be made in writing by Employee within fifteen (15) days after
the Company's delivery of such termination notice to Employee. If the
reason for the termination is of a nature which may be cured or otherwise
remedied by Employee, Company shall afford Employee the opportunity to
cure such situation for such period of time as may be reasonably required
under the circumstances. In the event of a controversy between the Company
and Employee with respect to the foregoing, Company and Employee agree to
first meet and confer in a good faith to attempt to resolve the dispute
privately and, if such attempt shall fail, the parties agree that the
controversy shall be settled through binding arbitration conducted in San
Francisco, California, under the auspices of the Judicial Arbitration and
Mediation Services, and that judgment upon any award rendered in such
arbitration may be entered in any court having jurisdiction. The
arbitrator or arbitrators may in his, her or their discretion, as the case
may be, order such limited discovery as may be appropriate. Employee and
the Company acknowledge that Employee's employment by Corporation is not
on an "at will" basis and may not be terminated by Employer unless cause
shall exist under this Section 7(c). Following Employee's termination for
cause in accordance with this Section 7(c), this Agreement shall 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
subsequent death that portion of his salary accrued through the date of
termination.
8. CONFIDENTIAL INFORMATION. The Employee acknowledges that in the
course of his employment with the Company he has received and will continue to
receive certain trade secrets, lists of customers, management methods, operating
techniques, prospective acquisitions, employee lists, training manuals and
procedures, personnel evaluation procedures, financial reports and other con
fidential information 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 the Information to anyone outside the
Company so long as
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the confidential 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 his or coming into his possession 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 acknowledges
that a remedy at law for any breach or attempted breach of the foregoing
provisions of this Section 8 will be inadequate, and agrees that the Company
shall be entitled to specific performance and injunctive and other equitable
relief in case of any such breach or attempted breach.
9. 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: Mr. Xxxx Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to the Company: Carriage Funeral Services
of California, Inc.
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxx,
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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10. 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.
11. 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 payments hereunder, it being agreed that such
payments and the right thereto are nonassignable and nontransferable.
12. BINDING EFFECT. Subject to the provisions of Section 11 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.
13. 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.
14. 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.
15. GOVERNING LAW. This Agreement shall be construed
and enforced in accordance with and governed by the laws of the
State of California.
16. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
CARRIAGE FUNERAL SERVICES
OF CALIFORNIA, INC.
By:/s/ XXXXXX X. XXXXX
XXXXXX X. XXXXX,
Chief Executive Officer
/s/ XXXX XXXXXX
XXXX XXXXXX
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