EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made this 1st day
of July 1998, by and among Oakridge Holdings, Inc. (the
"Company"), a Minnesota corporation with offices a 0000 000xx
Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxxxx 00000, and Xxxxx Xxxxxx
("Xxxxxx"), 00000 Xxx Xxxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxx 00000.
WHEREAS, upon the terms and subject to the conditions of
this Agreement, the Company desires to employ Leshyn and Leshyn
desires to accept employment by the Company;
NOW THEREFORE, in consideration of the mutual covenants set
forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Employment
Upon the terms and subject to the conditions of this
Agreement, the Company hereby employs Leshyn and Leshyn
hereby accepts employment by the Company in the capacity
hereinafter set forth.
2. Term of Employment
The term of this Agreement and Leshyn's employment hereunder
shall commence effective as of July 1, 1998 (the
"Commencement Date") and shall continue through June 30,
2003.
3. Duties
a. Office. During the term of this Agreement, Leshyn
shall serve as General Manager of the operations of
Oakridge Cemetery (Hillside), Inc. and Xxxx Oak
Cemetery Company, wholly owned subsidiaries of the
Company (the "Cemetery Subsidiaries"), at the direction
of the Board of Directors of the Company (the "Board"),
and Leshyn shall perform the duties, undertake the
responsibilities and exercise the authority customarily
performed, undertaken and exercised by a person in such
position in a business similar to the business in which
the cemetery Subsidiaries are engaged.
b. Extent of Service. During the term of this Agreement,
Leshyn shall perform faithfully the duties of her
employment to the best of her ability and devote all of
her business attention to the transaction of the
business of the Cemetery Subsidiaries. Leshyn may
pursue other business activities or be employed by
another entity during the term of this Agreement,
provided that such activities or employment do not
interfere with Leshyn's performance of her duties under
this Agreement as determined by the Board.
4. Compensation
a. Base Salary. In consideration of the services rendered
by Leshyn under this Agreement, during the term of this
Agreement the Company shall pay Leshyn a base salary
("Base Salary") at the rate of $79,310 per year. This
Base Salary shall be payable at regular intervals in
accordance with the Company's payroll practices. Base
salary starting July 1, 1999 shall be $81,689, July 1,
2000 shall be $84,140, July 1, 2001 shall be $86,663,
and July 1, 2002 $ 89,263.
b. Bonus Compensation
(1) Bonus Compensation. Subject to Paragraph 4 (b)
(3) below, the Company shall pay Leshyn additional
compensation for her services ("Bonus
Compensation") based upon the requirements
specified in Paragraph 4 (b) (4) below.
(2) Payment of Bonus Compensation. The Bonus
Compensation provided for in this Paragraph 4 (b)
shall be paid to Leshyn within 90 days after the
issuance for the audited financial statements
following the close of the Company's fiscal year
or, in connection with termination of Leshyn's
employment, within 90 days after issuance of the
Company's unaudited financial statements as
described in Paragraph 4 (b) (3) below.
(3) Bonus payment in Event of Termination. To the
extent that the Company will pay any Bonus
Compensation for a fiscal year in which Leshyn's
employment is terminated, the amount of such Bonus
Compensation to be paid shall be calculated as
described in Paragraph 4 (b) (4) below except that
the fiscal year will be deemed to end as of the
end of the month nearest Leshyn's Date of
Termination (as defined in Paragraph 7 (c) below)
and the calculation of net income from operations
before depreciation and income taxes ( interest
from perpetual care funds will not be included in
net income from operations) will be based on the
Company's unaudited financial statements as of
such month end.
(4) Calculation of Bonus Payment. With respect to
each fiscal year, the Company will pay Leshyn 5%
of the aggregate net income from operations before
depreciation (interest from perpetual care funds
will not be included in net income from
operations) of the Cemetery Subsidiaries over
$300,000 as set forth in the audited financial
statements of the Cemetery Subsidiaries for such
fiscal year.
c. Signing Bonus. Upon execution of this Agreement,
Employee will receive 5,000 shares of the common stock
of Holdings, $0.10 par value (the Common Stock ), in
substantially the form of Exhibit A attached hereto.
5. Stock Options.
a. Annual Grant.On each of the first, second, third,
fourth and fifth anniversary dates of this Agreement
and has remained fully employed by the Company at all
times during such years. Employee will receive an
incentive stock option under the plan to purchase 2,000
shares of common stock.
b. Discretionary Annual Grant. The President of the
Company may, in his sole discretion, authorize the
grant to Employee of incentive stock options under the
Plan to purchase up to 5,000 shares of common stock.
6. Miscellaneous Provisions Regarding Stock Options
a. Stock Option Agreement: Exercise Price and Vesting.
All options granted hereunder shall be made pursuant to
an Incentive Stock Option Agreement in substantially
the form of Exhibit A attached hereto. All such
options will have an exercise price equal to 100% of
the fair market value per share and will exercisable
upon issuance by Holdings.
b. The Plan. All options granted hereunder shall be
issued pursuant to and governed by the terms of the
Plan, and in the event of a conflict between the terms
of the Plan and this Agreement, the terms of the Plan
will govern.
6. Benefits
a. Disability. In the event that Leshyn is unable to
perform her duties under this Agreement due to her
Disability (as defined in Paragraph 7 (a) (1) below),
the Company will continue to pay Leshyn 70% of her Base
Salary for a period of 26 weeks after she becomes
disabled. In addition, the Company will reimburse
Leshyn for premiums on a long-term disability insurance
policy that provides benefits of $3,000 per month after
a six month waiting period.
b. Life Insurance. The Company will reimburse Leshyn for
premiums on a term life insurance policy that provides
death benefits to Leshyn's designated beneficiaries in
an amount equal to two times her Base Salary.
c. Medical Insurance. The Company will reimburse Leshyn
for premiums on a medical and hospitalization insurance
policy for Leshyn and her dependents.
d. Simple XXX Plan. The Company has established a Simple
XXX Plan and agree to contribute on behalf of Leshyn as
it contributes for other plan participants.
e. Vacation; Personal Days. Leshyn will be entitled to
vacation periods, holidays and personal days on the
same schedule and conditions and for the same duration
as is provided in the union contract applicable to the
Company's employees except Leshyn will receive five
weeks of paid vacation yearly.
f. Aggregate Premium Reimbursement. In connection with
reimbursement of premiums on the long-term disability,
life and medical insurance policies described above,
the Company will not be required to reimburse Leshyn
for more than an aggregate of a $5,000 per year.
7. Expenses
The Company shall reimburse Leshyn for all reasonable
business expenses incurred or paid by her that the Board
determines were incurred in connection with the performance
of her duties hereunder upon presentation of expense
statements or vouchers and such other supporting
documentation as the Board may from time to time request.
The Company shall give Leshyn a auto allowance for $350 per
month during the term of the contract, unless Leshyn or the
company terminate the contract.
The Company shall assist Leshyn in obtaining her Certified
Cemetery Executive (CCE) designation. To this extent they
will sponsor her attendance at industry sponsored continuing
professional education programs. Total expenses to obtain
the CCE shall not be greater than $5,000 per year.
8. Events of Termination
a. Termination. Either the Company or Leshyn may
terminate Leshyn's employment with the Company. The
Company may terminate Leshyn's employment with or
without cause. The Company may also terminate Leshyn's
employment in the event of her Disability. Leshyn's
employment shall automatically terminate upon her
death.
(1) Disability. For purposes of this Paragraph 7,
"disability" means a physical or mental infirmity
which impairs Leshyn's ability to substantially
perform her duties under this Agreement in the
opinion of a physician selected by mutual
agreement between Leshyn and the Company.
(2) For-Cause. For purposes of this Paragraph, "for-
cause" means a material breach of the terms of
this Agreement, including but not limited to a
willful breach of an obligation assumed under this
Agreement, unlawful criminal activity, willful
breach of duty, neglect of properly assigned
duties or a violation of Paragraphs 9 and 10
hereof as determined by the Board.
b. Notice of Termination. Notice of termination of
Leshyn's employment must be communicated as provided in
Paragraph 12 below except notice need not be given if
Leshyn's employment terminates because of her death or
the contract expires.
x. Xxxx of Termination. Termination of Leshyn's
employment under this Paragraph 7 will be effective on
the date of delivery of the Notice of Termination,
unless termination occurs as a result of Leshyn's death
in which case her employment terminates on the day of
her death (the "Date of Termination") or her contract
expires.
8. Compensation Upon Termination
a. If for Disability or Death. If Leshyn's employment is
terminated as a result of her Disability or death, the
Company will pay Leshyn in a single payment an amount
equal to 30 days of salary at the Base Salary rate in
effect on the Date of Termination plus $450 of benefit
compensation, all earned vacation and personal time
earned but not used and any Bonus Compensation through
the Date of Termination, determined as described in
Paragraph 4 (b) above.
b. If For-Cause. If the Company terminates Leshyn's
employment for-cause, upon Leshyn giving the Company a
written, complete release of the Company for any and
all liability, the Company will pay Leshyn in a single
payment an amount equal to 30 days of salary at the
Base Salary rate in effect on the date of termination
plus $450 of benefit compensation.
c. If By the Company Without Cause. If the Company
terminates Leshyn's employment without cause, the
Company will pay Leshyn in a single payment one and
one-half times her then current Base Salary, plus all
earned vacation, bonus in agreement with section 4(b)
and earned personal time not used.
d. If By Leshyn. If Leshyn terminates her employment, she
forfeits all claims for any compensation or other
benefits under this Agreement.
9. Confidential Information
Leshyn acknowledges that the information, observations and
data obtained by her during the course of her performance
under this Agreement concerning the business or affairs of
the Company and its affiliates are the property of the
Company. Therefore, except as may otherwise be required by
law, Leshyn agrees that she will not disclose to any
unauthorized person or use for her own account any of such
information, observations or data without the written
consent of the Company, unless and to the extent that the
aforementioned matters become generally known to and
available for use by the public other than as a result of
Leshyn's acts or omissions to act. Leshyn agrees to deliver
to the Company at the termination of her employment, or at
any other time the Board may request, all memoranda, notes,
plans, records, reports and other documents (and copies
thereof) relating to the business of the Company and its
affiliates which she may then possess of have under her
control.
10. Noncompetition
Leshyn shall not alone, or in any capacity with another,
during her employment with the Company, or for three months
after the termination of her employment with the Company,
unless Leshyn has received from the Board prior written
consent to the contrary:
a. Directly or indirectly engage in any business activity
that competes with the business of the Cemetery
Subsidiaries;
b. In any way interfere or attempt to interfere with the
Company's relationship with any of its customers or
potential customers; or
c. After the conclusion of her employment, attempt to
employ any of the employees of the Company on behalf of
any other entity competing with the Company.
11. Successors and Assigns
a. Company Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the
Company, its successors and assigns. The term "the
Company" as used herein shall include such successors
and assigns. The term "successors and assigns" as used
herein shall include a corporation or other entity
acquiring all or substantially all the assets and
business of the Cemetery Subsidiaries (including this
Agreement) whether by operation of law or otherwise.
x. Xxxxxx'x Successors and Assigns. Neither this
Agreement not any duty, obligation, right or interest
hereunder shall be assignable by Leshyn, her
beneficiaries, or legal representatives without the
Company's prior written consent; provided, however,
that nothing in this Paragraph 11 shall preclude (i)
Leshyn from designating a beneficiary to receive any
benefit payable hereunder upon her death, or (ii) the
executors, administrators, or other legal
representatives of Leshyn or her estate from assigning
any rights hereunder to devisees, legatees,
beneficiaries, a testamentary trustee or other legal
heirs of Leshyn (each a "Distributee"). All amounts
payable under this Agreement upon Leshyn's death,
unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Leshyn's
Distributee or, if there is no such Distributee, to her
estate.
12. Notices
Any notice required or permitted by this Agreement shall be
given by registered or certified mail, return receipt
requested, addressed to the Company, or to Leshyn, at their
respective address specified on page 1 of this Agreement, or
to any party hereto at such other address or addresses as he
or it may from time to time specify for such purpose in a
notice similarly given. Any such notice shall be deemed
given on the date of delivery as certified.
13. Dispute Resolution
a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Minnesota without regard to the conflicts of laws
provisions of any jurisdictions. Any legal proceeding
related to this Agreement will be brought in an
appropriate Minnesota court, and the parties consent to
the exclusive jurisdiction of Minnesota courts for this
purpose.
b. Injunctive Relief. Leshyn hereby acknowledges and
agrees that it would be difficult to fully compensate
the Company for damages for a breach or threatened
breach of Paragraphs 9 or 10. Accordingly, Leshyn
agrees that the Company shall be entitled to temporary
and permanent injunctive relief to enforce the
provisions of Paragraphs 9 or 10 hereof and that such
relief may be granted without the necessity or proving
actual damages. This provision with respect to
injunctive relief shall not limit the Company from
pursuing other rights or remedies available to the
Company for such breach or threatened breach, including
but not limited to, the recovery of damages from Leshyn
or any third party.
c. Arbitration. Except with respect to a claim for an
injunction under Paragraph 13 (b) or for other
equitable relief, any controversy or claim arising out
of, or relating to, this Agreement or its making,
performance, or interpretation shall be settled by
arbitration under the Commercial Arbitration Rules of
The American Arbitration Association, which arbitration
may be instituted by either party to this Agreement in
Minneapolis, Minnesota. Judgment on the arbitration
award may be entered in any court having jurisdiction
over the subject matter of the controversy. In such
arbitration, the parties shall be entitled to full
discovery to the extent permitted in a proceeding
brought in the trial courts of general jurisdiction.
14. Indemnification
The Company shall indemnify Leshyn and provide legal
representation to her with respect to any actions, claims or
proceedings which are based upon acts or omissions of Leshyn
related to the performance of her duties hereunder to the
extent permitted by law except any action, claim, or
proceeding between Leshyn and the Company.
15. Entire Agreement
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and there are no
restrictions, agreements, promises, covenants, undertakings,
representations, or warranties with respect to the subject
matter hereof other than those expressly set forth herein.
No modification of this Agreement shall be valid unless in
writing and signed by the parties hereto. The waiver of a
breach of any term of condition of this Agreement shall not
be deemed to constitute a waiver of any subsequent breach of
the same or any other term or condition of this Agreement.
16. Severability
If any term or provision of this Agreement or the
application thereof to any person, property or circumstance
shall to any extent be invalid or unenforceable, the
remainder of this Agreement shall not be affected thereby,
and each term and provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
17. Counterparts
This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the day, month and year first
written above.
OAKRIDGE HOLDINGS, INC.
By: /S/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
CEO/Chairman
By: /S/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
