EXHIBIT 10.29
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made effective as of the 1st day of January, 2001, is
between CARRIAGE SERVICES, INC., a Delaware corporation (the "Company"), and
XXXXX X. XXXXXX, a resident of Sugar Land, Texas (the "Employee").
1. EMPLOYMENT TERM. The Company hereby continues the employment of the
Employee for a term commencing effective on the date first above written and,
subject to earlier termination as provided in Section 7 hereof, continuing until
December 31, 2003 (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 Sr. Vice
President-Cemetery Operations of the Company or any other executive officer
designated by him. The Employee shall perform the management and administrative
duties of Vice President of Cemetery Operations of the Company. It is
anticipated that the Employee shall be responsible for the Company's cemetery
operations. The Employee shall also serve as Vice President of Cemetery
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 Sr. Vice President and/or Chief Executive Officer 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 $16,666.67 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) Consideration for an annual performance-based bonus within the
sole discretion of the Company, as may be recommended by the Sr. Vice
President and, if applicable, approved by the Compensation Committee of
the Company's Board of Directors.
(b) Eligibility for consideration of incentive stock options under
the terms of one or more of the Company's stock option plans.
(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 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 for a period of 12 months following the date of
discharge. 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 officer, director,
shareholder, partner, member, trustee, employee, consultant, advisor,
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agent or any other capacity of any corporation, partnership, joint
venture, trust, or other business organization or entity, encourage,
support, finance, be engaged in, interested in, or concerned with (x) any
of the companies and entities described on Schedule I hereto, except to
the extent that any activities in connection therewith are confined
exclusively outside the Continental United States, or (y) any other
business having an office or being conducted within a radius of fifty (50)
miles of any funeral home, cemetery or other death care business owned or
operated by the Company or any of its subsidiaries at the time of such
termination;
(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 (x) as part of any of the
companies or entities listed on Schedule I, or (ii) otherwise within a
radius of fifty (50) miles of any funeral home, cemetery or other death
care business owned or operated by the Company or any of its subsidiaries
at the time of such termination.
Notwithstanding the foregoing, the above covenants shall not prohibit the
passive ownership of not more than one percent (1%) of the outstanding voting
securities of any entity. 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
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. Xxxxx X. Xxxxxx
0 Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
If to the Company: Carriage Services, Inc.
0000 Xx. Xxxxx Xxxxx, 0xx Xxxxx
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.
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16 GOVERNING LAW. A substantial portion of the Employee's duties under
this Agreement shall be performed at the Company's corporate headquarters in
Houston, Texas, and this Agreement has been substantially negotiated and is
being executed and delivered in the State of Texas. This Agreement shall be
construed and enforced in accordance with and governed by the laws of the State
of Texas.
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:
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XXXXXX X. XXXXX, Chief Executive Officer
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XXXXX X. XXXXXX
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SCHEDULE I
TO
EMPLOYMENT AGREEMENT
(XXXXX X. XXXXXX)
1. The following entities, together with all Affiliates thereof:
Service Corporation International
The Xxxxxx Group Inc.
Xxxxxxx Enterprises, Inc.
Keystone Group Holdings, Inc.
Meridian Mortuary Group, Inc.
Cornerstone Family Services, Inc.
Prime Succession, Inc.
Xxxxxxxx Group, Inc.
Century Group
Saber Group
Xxxxxx Xxxxxx & Co.
For purposes of the foregoing, an "Affiliate" of an entity is a person
that directly or indirectly controls, is under the control of or is under
common control with such entity.
2. Any new entity which may hereafter be established which acquires any
combination of ten or more funeral homes and/or cemeteries from any of
the entities described in 1. above.
3. Any funeral home, cemetery or other death care enterprise which is
managed by any entity described in 1. or 2. above.
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