1
FORM OF EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the _____ day of ___________, 1997, by and
among ROCK OF AGES CORPORATION, a Delaware corporation, with a principal place
of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000 ("Company"), and
_________________ ("Employee") residing at ________________________________
_________________.
FACTUAL BACKGROUND:
1. Company wishes to employ Employee, initially as President of its
Memorials Division reporting to the President of the Company, with principal
responsibility for national memorial and other granite product manufacturing and
for national and international sales and marketing of the Company's granite
products (the "Position") and with such other duties and responsibilities, and
such other or different positions, as Company may assign to Employee; and
Employee wishes to accept such employment subject to the terms and conditions of
this agreement.
2. Company and its affiliates and subsidiaries manufacture granite
memorials and other granite products, perform services related thereto, and
market such products and services at wholesale and retail in the United States
and in various foreign countries (Company's "Business") and have accumulated
valuable and confidential information including trade secrets and know-how
relating to technology, manufacturing procedures, formulas, machines, marketing
plans, sources of supply, business strategies and other business records.
3. The agreement by Employee to enter into the covenants contained
herein is a condition precedent to the continued employment of Employee in the
Position, Employee acknowledges the same and that his execution of this
agreement are express conditions of his employment; and that said covenants are
given as material consideration for such employment and the other benefits
conferred upon him by this agreement.
4. As used herein the term "Company" shall refer to Company and where
applicable to any direct or indirect subsidiary or affiliate of Company for
which Employee may from time to time be performing services under this
agreement.
2
NOW, THEREFORE, in consideration of such employment and other valuable
consideration, receipt of which is hereby acknowledged, the parties thereto
agree as follows:
1. EMPLOYMENT. Company agrees to employ Employee, and Employee accepts
employment in the Position, initially reporting to the President of Company, all
upon the terms and conditions hereinafter set forth.
2. DUTIES AND POLICIES.
(a) DUTIES. The Employee agrees to devote his full time and
best efforts to his employment duties in the Position or, subject to the rights
of Company in the second sentence of this Section 2(a), in such other position
to which Employee is assigned during the Term (as hereinafter defined), and to
such other duties as may be assigned to him from time to time by Company.
Company reserves the right in its sole discretion to request Employee to perform
no duties for it under this agreement from time to time or at any time for such
periods of time during the Term as it in its sole discretion may determine and
in the event Company takes such action, Employee will thereafter not be eligible
for any further increases in his Annual Base Salary or for any bonuses until
Company requests, if ever, Employee return to active work.
(b) POLICIES. Employee agrees to abide by the policies, rules,
regulations or usages applicable to Employee as established by Company from time
to time and provided to Employee in writing.
3. TERM. The employment of Employee by ROAC hereunder will commence on
the date (the "Commencement Date") of the consummation of Company's initial
public offering and end on the fifth anniversary of the Commencement Date,
unless extended or sooner terminated as hereinafter provided (the "Term").
4. COMPENSATION. For all services to be rendered by Employee in any
capacity hereunder, the Company shall pay Employee the following:
(a) SALARY. The Company shall pay Employee an annual salary of
Two Hundred Ten Thousand Three Hundred Sixty Dollars ($210,360.00) less
withholding and other taxes required by federal and state law (the "Annual Base
Salary"), payable in equal monthly installments, or as otherwise required by
law. Employee shall be eligible to receive increases in Employee's Annual Base
Salary pursuant to periodic salary reviews consistent with Company's corporate
policies; it being understood such increases are not guaranteed, but are subject
to Employee's job performance and the determination
- 2 -
3
by Company's Board of Directors, in its sole discretion, to award salary
increases to Employee.
(b) BONUS. Employee may also be awarded a bonus or bonuses
from time to time during the Term in such amounts and at such time, if any, as
the Company's Board of Directors may determine, in its sole discretion.
(c) STANDARDS. Company agrees that the standards to be used by
its Board of Directors in awarding salary increases and bonuses to Employee will
be the same standards used by the Board of Directors of Company in awarding the
same to its executive officers.
5. FRINGE BENEFITS. During the term of this agreement, Employee shall
be entitled to participate in such fringe benefits as, from time to time, may be
applicable to the Company's similarly situated executive employees, subject to
the terms and conditions of such fringe benefit plans and to the following
fringe benefits so long as the same may be maintained by the Company:
(i) Family medical and major medical health
insurance, paid for by Company;
(ii) Life Insurance paid for by Company equal to one
and one-half (1 1/2) times Employee's Annual Base Salary
(capped at $280,000 while working and $60,000 during
retirement);
(iii) Participation in Company's qualified 401(k)
profit sharing plan pursuant to the terms thereof;
(iv) Participation in Company's qualified defined
benefit Salaried Employees Pension Plan pursuant to the terms
thereof;
(v) Participation in Company's long term disability
insurance plan pursuant to the terms thereof;
(vi) The use of an automobile comparable to the
automobiles provided to other executive officers of Company
and payment by Company of the costs of operation and
maintenance of the automobile; and
(vii) Vacation in accordance with Company's employee
policies, in effect from time to time.
- 3 -
4
Fringe benefits provided to Employee will, in addition, generally be
not less advantageous to Employee than those provided by Company to its
executive employees. Fringe benefits as used in this Section do not include cash
compensation, stock options or other compensation.
6. TERMINATION.
(a) TERMINATION BECAUSE OF DEATH OR TOTAL DISABILITY. This
agreement will terminate automatically upon the date of Employee's death or
Total Disability. The Employee shall be deemed to have incurred a Total
Disability:
(i) if Company maintains a long term disability
policy in effect for the benefit of Employee, on the date when
the Employee shall have received total disability benefits
under said policy for a period of six (6) months;
(ii) if no such long term disability insurance policy
is in effect, on the date when the Employee suffers from a
physical or mental disability of such magnitude and effect
that the Employee is unable to perform the essential functions
of Employee's assigned position with or without reasonable
accommodation and such disability continues during a period of
twelve (12) continuous or noncontinuous months within the
eighteen (18) month period beginning on the first day of the
month in which the first day of disability occurs;
(iii) if Employee illegally uses drugs and, as a
result, performance of his duties and/or employment with
Company is in any way impaired; or
(iv) on the date when Employee receives more than 12
weeks of payments under the Social Security Act because of
determination by the Social Security administration that
Employee is totally disabled.
Total Disability as set forth in subsections (ii) or (iii) above shall be deemed
to have occurred upon the written certification to Company thereof by the
Employee's personal physician, which certification may be requested in writing
by Company. If the Employee does not have a personal physician or refuses to
consult with his personal physician, Company may select a licensed New Hampshire
physician, board-certified in internal medicine or family practice, at
Employee's cost, to examine the Employee, which physician shall, for purposes
hereof, be deemed to be the Employee's personal physician; provided, that if the
Employee refuses to be examined by this deemed personal physician
- 4 -
5
within thirty (30) days after the physician's appointment by Company, then the
Employee may at Company's election be conclusively presumed to have become
Totally Disabled as of the close of such thirty (30) day period. If Company
disagrees with the opinion of the Employee's personal physician, then Company
may select a second licensed, board-certified New Hampshire physician, at
Company's cost, to examine the Employee. If said two (2) physicians disagree as
to whether Employee is Totally Disabled, then the personal physician and this
second physician shall then select a third licensed, board-certified New
Hampshire physician, with the cost of this third physician to be split between
Employee and Company, to examine the Employee. Upon examination of the Employee
by the three (3) physicians, each physician shall render an opinion with respect
to the condition of the Employee in regards to his Total Disability, and the
opinion of a majority of the physicians shall be binding upon all parties.
(b) TERMINATION WITHOUT CAUSE. Company shall not have the
right to terminate this agreement and Employee's employment under this agreement
except for a Termination With Cause (as defined in Section 6(c) below).
(c) TERMINATION WITH CAUSE. Company may terminate this
agreement and the employment of the Employee at any time with cause and without
further notice upon the occurrence of any of the following events: (i)
abandonment by Employee of, or chronic, habitual or continuous failure by
Employee to perform, over a period of thirty (30) or more days, Employee's
duties as an Employee hereunder or violation of any of Employee's covenants or
agreements under this agreement; (ii) embezzlement or other theft of the
property of Company, of the ROAC Corporate Group or of any predecessor to the
Company or to the ROAC Corporate Group (collectively, the "Predecessors"), or
the commission of other criminal activity against Company, ROAC Corporate Group
or any of the Predecessors or their employees, agents and customers; or (iii)
conviction of a crime which the Company's Board of Directors reasonably
determines will have or has had a material adverse affect on the reputation,
business and/or financial affairs of Company or the ROAC Corporate Group (any
such termination is herein sometimes referred to as a "Termination With Cause"
or as "Terminated With Cause"). In the event that Employee's employment is
Terminated With Cause or Employee resigns in lieu of such termination, Employee
shall only be entitled to be paid any expenses he has incurred prior to the
termination and for which he is entitled to reimbursement hereunder, and such
pro-rated salary as he may have earned up to the date of termination.
(d) TERMINATION BY THE EMPLOYEE. Employee may resign from
employment at any time for any reason and terminate this agreement by giving
thirty (30) days' written notice to Company (any such termination is herein
sometimes referred to as a "Voluntary Termination") of such intention. In such
event, Company may, in its
- 5 -
6
discretion, permit the Employee to work through the notice period or accept the
Employee's immediate resignation. In the event of a Voluntary Termination,
Employee shall not be entitled to payment of any further compensation or
benefits, under the terms of this agreement.
7. ROAC CORPORATE GROUP. Company and its direct and indirect
subsidiaries, affiliates, parent and successors and assigns are sometimes herein
sometimes referred to as the "ROAC Corporate Group."
8. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Employee acknowledges
that during his employment, he has, and will in the future continue to, become
fully familiar with all aspects of the Company's Businesses and the ROAC
Corporate Group's businesses and will obtain access to confidential and
proprietary information relating to such businesses. Employee understands,
agrees and covenants that such information is valuable and Employee has no
property interest in it. Therefore, Employee covenants and agrees that during
his employment with Company and the ROAC Corporate Group and thereafter Employee
will not use, disclose, communicate or divulge such information to any person
not employed by Company and the ROAC Corporate Group or use such information
except as may be necessary to perform his duties as an Employee under this
agreement. Employee's obligations in this section shall survive the expiration
of the Term of this agreement and/or termination of Employee's employment under
this agreement for any reason whatsoever.
9. NON-SOLICITATION OF EMPLOYEES, CLIENTS AND CUSTOMERS. During the
Term of this agreement and for the period of Employee's non-competition covenant
set forth in Section 11 hereof, following the termination this agreement,
Employee agrees not to, on his own behalf or on behalf of any other person,
corporation, firm or entity, directly or indirectly, solicit or induce any
client, customer, employee or sales representative of Company or the ROAC
Corporate Group to stop doing business with or to leave any of said companies
for any reason whatsoever or to hire any of said companies' employees.
10. RETURN OF PROPERTY. Upon termination or nonrenewal of this
agreement for any reason, Employee agrees to immediately return all Company and
ROAC Corporate Group property, whether confidential or not, without keeping any
copies or excerpts thereof, including, but not limited to, computers, printers,
customer lists, samples, product information, financial information, price
lists, marketing materials, keys, credit cards, automobiles, technical data,
research, blueprints, trade secrets information, and all confidential or
proprietary information.
- 6 -
7
11. NON-COMPETITION COVENANT BY EMPLOYEE. Company and the Employee
agree that Company is currently engaged in the business of quarrying,
manufacturing, marketing and selling granite memorials and other granite
products at wholesale and at retail (herein referred to as the "Restricted
Business") and Company and the ROAC Corporate Group are engaged in the
Restricted Business in all of the states of the United States and in all of the
provinces of Canada (herein the territory of all such states and provinces is
referred to as the "Restricted Territory") and has hired the Employee to expand
and grow the Restricted Business in the Restricted Territory. Accordingly, as a
material and essential inducement to Company to hire the Employee and in
consideration of Company's agreements with the Employee under this agreement,
Employee agrees that during the Term of this agreement and, if this agreement is
terminated for any reason, lapses, is not renewed for any reason, or Employee is
not employed by Company after the end of the Term hereof for any reason, for a
period equal to two (2) years thereafter, unless this agreement in terminated
within the first two (2) years of the Term hereof, in which case for the period
of four (4) years thereafter, Employee will not, in the Restricted Territory,
directly or indirectly, in any manner whatsoever:
(a) compete with Company, its successor and assigns, or the
ROAC Corporate Group, its successors and assigns, in the Restricted
Business;
(b) engage in the Restricted Business, except as an employee
of Company or the ROAC Corporate Group;
(c) have any ownership interest in (other than the ownership
of less than five percent (5%) of the ownership interests of a company
whose stock or other ownership interests are publicly traded) any
business entity which engages, directly or indirectly, in the
Restricted Business in the Restricted Territory except for any
ownership interest owned by Employee during the Term of this agreement,
and after termination of this agreement, in the Company or in Xxxxxxx
Granite Company LLC;
(d) contract, subcontract, work for, solicit work from,
solicit Company or ROAC Corporate Group employees for, or solicit
customers for, advise or become affiliated with, any business entity
which engages in the Restricted Business in the Restricted Territory
except as an employee of Company or of the ROAC Corporate Group; or
(e) lend money or provide anything of value to any entity
which engages in the Restricted Business in the Restricted Territory.
- 7 -
8
The term "compete" as used in this Section 11 means engage in
competition, directly or indirectly, either as an owner, agent, member,
consultant, partner, sole proprietor, stockholder, or any other ownership form
or other capacity.
While the restrictions as set forth herein and in Section 9 are
considered by the parties hereto to be reasonable in all circumstances, it is
recognized that any one or more of such restrictions might fail for unforeseen
reasons. Accordingly, it is hereby agreed and declared that if any of such
restrictions shall be adjudged to be void as unreasonable in all circumstances
for the protection of Company and the ROAC Corporate Group and their interests,
but would be valid if part of the wording thereof were deleted, the period
thereof reduced, or the range of activities or area dealt with reduced in scope,
such restrictions shall apply with the minimum modification as may be necessary
to make them valid and effective, while still affording to Company and the ROAC
Corporate Group the maximum amount of protection contemplated thereby.
Employee represents that he has carefully reviewed Employee's
restrictive non-competition covenant set forth in this Section 11 and his
non-solicitation covenant in Section 9 and has determined that these covenants
will not impose undue hardship, financial or otherwise, on Employee; that their
Restrictive Territory and duration will not impose a hardship on Employee; that
they protect Company's and the ROAC Corporate Group's legitimate interests in
their investment in Employee and their Restricted Business; and that in
Employee's opinion Employee not being able to compete in the Restrictive
Territory for the duration of this covenant will not be injurious to the public
interest.
Employee agrees that Employee's breach of his covenants in Sections 8,
9, 10 and 11 will cause irreparable harm to Company and the ROAC Corporate
Group.
12. LOYALTY. Employee shall devote his full time and best efforts to
the performance of his employment under this agreement. During the term of this
agreement, Employee shall not at any time or place whatsoever, either directly
or indirectly, engage in the Restricted Business or any other profession or
active business to any extent whatsoever, except on or pursuant to the terms of
this agreement, or with the prior written consent of Company. Employee agrees
that he will not, while this agreement is in effect, do any unlawful acts or
engage in any unlawful habits or usages which injure, directly or indirectly,
Company and its Business or the ROAC Corporate Group and its businesses. Company
agrees that if it exercises its rights in Section 2(a) hereof to have Employee
perform no duties for it, then during such period of time during the Term as
Employee is so not performing his duties, Employee may engage in other
- 8 -
9
employment which does not violate the non-competition covenant in Section 11 and
his other covenants in Sections 8, 9, 10 and 12 of this agreement.
13. GOVERNING LAW, JURISDICTION AND VENUE. This agreement shall be
governed by and construed in accordance with the laws of the State of New
Hampshire; and any actions brought pertaining to the same shall lie only in the
Merrimack County Superior Court, New Hampshire, or the U.S. District Court for
the District of New Hampshire, in said State all of which are the sole and
exclusive forums for any actions or claims by the parties to this agreement and
each party hereto consents to the jurisdiction of, and venue in, said courts in
any action brought by another party hereto and agrees that no claims or actions
relating to any matter hereunder will be brought by them in any other courts of
said State, any other state or any other country.
14. HEADINGS. The descriptive headings of the several sections of this
agreement are inserted for convenience of reference only and shall not control
or affect the meanings or construction of any of the provisions hereof.
15. SEVERABILITY AND VIOLATION OF LAWS. If any provision of this
agreement shall be held invalid or unenforceable according to law, such
provision shall be modified to the extent necessary to bring it within the legal
requirements. Any such invalidity or unenforceability shall not affect the
remaining provisions of this agreement, and such remaining provisions shall
continue in full force and effect.
16. SPECIFIC PERFORMANCE. The Employee hereby agrees and stipulates
that it would be impossible to measure in monetary terms the damages which would
be suffered by Company in the event of any breach by Employee of Sections 8, 9,
10, 11, 12, 13 and 16 of this agreement. Therefore, if either party hereto shall
institute any action in equity to enforce such sections of this agreement, it is
agreed that the other party hereto waives any claim or defense that the
plaintiff has an adequate remedy at law, and the other party hereto agrees that
the plaintiff is entitled to specific performance of such terms of the
agreement.
17. NOTICES. Any notice or other communication required or permitted
under this agreement shall be in writing and shall be deemed to have been duly
given (i) upon hand delivery, or (ii) on the third day following delivery to the
U.S. Postal Service as certified or registered mail, return receipt requested
and postage prepaid, or (iii) on the first day following delivery to a
nationally recognized United States overnight courier service for next business
day delivery with fee prepaid or (iv) when telecopied or sent by facsimile
transmission if an additional notice is also given under (i), (ii) or (iii)
above within three days thereafter. Any such notice or communication shall be
directed to a
- 9 -
10
party at its address set forth below or at such other address as may be
designated by a party in a notice given to all other parties hereto in
accordance with the provisions of this Section.
FOR THE COMPANY:
Xx. Xxxx X. Xxxxxxx
Chairman of the Board, President and Chief Executive Officer
Rock of Ages Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx, Esquire
Xxxxxx & Xxxxxx, P.A.
00 Xxxxxx Xxxxxx
X. X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
FOR THE EMPLOYEE:
with a copy to:
18. ASSIGNMENT. The rights and obligations of Company together with its
obligations and all of the Employee's covenants and agreements hereunder may be
assigned by Company to any third party by operation of law or by contractual
- 10 -
11
assignment; and upon such assignment Company shall be relieved of all of its
obligations, agreements, duties and covenants hereunder. The rights and
obligations of the Employee under this agreement are not assignable.
19. COMPLETE AND ENTIRE AGREEMENT. This agreement contains all of the
terms agreed upon by the parties with respect to the subject matter hereof and
supersedes all prior agreements, representations and warranties of the parties
as to the subject matter hereof.
20. AMENDMENTS. This agreement may be amended, or any provision of the
agreement may be waived, provided that any such amendment or waiver will be
binding on the parties only if such amendment or waiver is set forth in a
writing executed by all parties hereto. The waiver by any party hereto of a
breach of any provision of this agreement shall not operate or be construed as a
waiver of any other breach.
21. TERMINATION OF OTHER EMPLOYMENT AGREEMENTS. In consideration of the
terms and conditions of this agreement, on the Commencement Date, Company and
Employee agree that all other agreements relating to Employee's employment
between them, or between Employee and any of the Predecessors, will be
terminated and thereafter be null, void and of no further force and effect and
each party hereto releases the other from any claims, obligations or duties
either party hereto had or might have had under all other such agreements.
22. SURVIVAL. Sections 8, 9, 10, 11, 12, 13, 15, 16, 17, 21 and 22
shall survive expiration of the Term of this agreement and/or termination of
Employee's employment under this agreement.
- 11 -
12
IN WITNESS WHEREOF, the parties hereto have executed this agreement,
all as of the date first written above.
WITNESS: ROCK OF AGES CORPORATION
______________________________ By: ___________________________________
Xxxx X. Xxxxxxx,
Chairman of the Board, President
and Chief Executive Officer
WITNESS:
______________________________ ________________________________________
Employee
- 12 -
