EXHIBIT 10.32
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made effective as of the 8th day of November, 1999,
is between CARRIAGE SERVICES, INC., a Delaware corporation (the "Company"), and
XXX X. XXXXX, a resident of Xxxxxx County, Texas (the "Employee").
1. Employment Term. The Company hereby continues the employment of
the Employee for a term commencing effective November 8, 1999 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 control of, the Chief Executive
Officer of the Company or any other executive officer designated by him. The
Employee shall perform the management and administrative duties of a member of
the Operations Group of the Company. The Employee shall also serve as Senior
Vice President of Operations of any subsidiary of the Company as requested by
the Company, and the Employee shall perform such other duties as are from time
to time assigned to him by the Executive Vice President of Operations of the
Company or any other member of the Executive Committee referred to in Section 5
below, and as are not inconsistent with the provisions hereof.
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.
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. 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) An annual performance-based bonus in the amount of not less than
$40,000.00 for each fiscal year during the term of this Agreement,
commencing with the fiscal year ending December 31, 2000, payable annually
within 45 days following expiration of each such fiscal year. Such bonus
shall be payable according to a bonus criteria to be mutually established
between the Employee and the Company's Executive Committee (consisting of
its Chief Executive Officer, President, Chief Financial Officer and
Executive Vice President of Operations) at or about the commencement of
each fiscal year of the Company. To be eligible for such annual bonus, the
Employee must be employed at least 180 days of the fiscal year, and if he
is employed for at least 180 days but less than the full fiscal year, the
bonus will be prorated based upon the number of days completed. A bonus
for 1999 performance was in the amount of $80,000 and was paid to the
Employee on or about November 8, 1999.
(b) Eligibility for consideration of incentive stock options under
the terms of the Company's 1995 Stock Incentive Plan.
(c) 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 and for the two-year period specified in
Section 8:
(a) 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.
(b) 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.
(c) 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 Agreement 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
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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 Company, 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 Agreement. In the
event of a termination pursuant to this paragraph (b), the Company shall
be relieved of all its obligations 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 Agreement 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 subsequent death) that portion of the Employee's salary accrued
through the date of termination. For purposes of this Agreement, 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 involving 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 reasonable satisfaction of the Company, (iii) the
Employee's commission of acts amounting to gross negligence or willful
misconduct to the material detriment of the Company, or (iv) the
Employee's breach of any provision of this Agreement or uniformly applied
provisions of the Company's employee handbook.
(d) Discharge Without Cause. Prior to the end of the term of this
Agreement, the Company may discharge the Employee without Cause (as
defined in paragraph (c) above) and terminate this Agreement. In such case
this Agreement shall automatically terminate and the Company shall have no
further obligation to the Employee or his estate, except that the Company
shall continue to pay to the Employee (or his estate in the event of his
subsequent death) the Employee's base salary under Section 4, and shall
continue to include the Employee in any group health and hospitalization
insurance program on the same terms as other employees of the Company, for
the remainder of the term of this Agreement. 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 been
discharged.
8. Restrictive Covenants. If the employment of the Employee is
terminated for any reason (including voluntary resignation), then the Employee
agrees that for a period of two (2) years thereafter, he 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 joint venture, or as a trustee,
officer, director, shareholder,
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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 funeral home or
cemetery business owned or operated by the Company or any of its
subsidiaries at the time of such termination, which business is directly
or indirectly in competition with the business of the Company or any such
subsidiary;
(ii) induce or assist anyone in inducing in any way any employee of
the Company or any of its subsidiaries to resign or sever his or her
employment or to breach an employment contract with the Company or any
such subsidiary; 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, cemetery or burial insurance
business or in any business related thereto within a radius of fifty (50)
miles of any funeral home or cemetery business owned or operated by the
Company or any of its subsidiaries at the time of such termination.
The foregoing covenants shall not be held invalid or unenforceable 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.
9. Confidential Information. The Employee acknowledges that in the
course of his employment by 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
confidential 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 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 Company's payroll clerk responsible for
paying the Employee's compensation, appropriate taxing authorities, and
otherwise as authorized by the Company. The Employee acknowledges that a remedy
at law for any breach or attempted breach of the foregoing provisions of this
Section 9 or under Section 8 above 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.
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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. Xxx X. Xxxxx
00000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
If to the Company: Carriage Services, 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.
11. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective 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 payments hereunder, it being agreed that such
payments and the right thereto are nonassignable and nontransferable.
13. Binding Effect. Subject to the provisions of Section 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. Without limiting the generality of the foregoing, this Agreement
supersedes and replaces the Employment Agreement dated effective January 1999
between the Employee and the Company.
16. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Texas.
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
CARRIAGE SERVICES, INC.
By: ________________________________________
XXXXXX X. XXXXX, Chief Executive Officer
____________________________________________
XXX X. XXXXX
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