Exhibit 10.43.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") between Xxxxxxx Enterprises,
Inc., a Louisiana corporation (the "Company"), and Xxxxxxx X. Xxxxx (the
Employee") is dated as of November 1, 1997 (the "Agreement Date").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the services of Employee
pursuant to the terms of this Agreement, subject to Employee's acceptance
of the conditions stated herein;
WHEREAS, during the course of his employment with the Company,
Employee will have received extensive and unique knowledge, training and
education in, and access to resources involving, the Death Care Business
(as defined below) at a substantial cost to the Company, which Employee
acknowledges substantially will enhance Employee's skills and knowledge in
such business;
WHEREAS, during the course of his employment with the Company,
Employee will have access to certain valuable oral and written information,
knowledge and data relating to the business and operations of the Company
and its subsidiaries that is non-public, confidential or proprietary in
nature and is particularly useful in the Death Care Business; and
WHEREAS, in view of the training provided by the Company to Employee,
its cost to the Company, the need for the Company to be protected against
disclosures by Employee of the Company's and its subsidiaries' trade
secrets and other non-public, confidential or proprietary information, the
Company and Employee desire, among other things, to prohibit Employee from
disclosing or utilizing, outside the scope and term of his employment, any
non-public, confidential or proprietary information, knowledge and data
relating to the business and operations of the Company or its subsidiaries
received by Employee during the course of his employment, and to restrict
the ability of Employee to compete with the Company or its subsidiaries for
a limited period of time.
NOW, THEREFORE, for and in consideration of the continued employment
of Employee by the Company and the payment of wages, salary and other
compensation to Employee by the Company, the parties hereto agree as
follows:
ARTICLE I
EMPLOYMENT CAPACITY AND TERM
1. CAPACITY AND DUTIES OF EMPLOYEE. The Employee is employed by the
Company to render services on behalf of the Company as Chief Operating
Officer of the Xxxxxxx Xxxxxx, Xxxxxxx Division of the Company. As the
Regional Chief Operating Officer, the Employee shall perform such duties as
are assigned to the individual holding such title as may be prescribed from
time to time by the President of the Company and the President of the
Central Division.
2. EMPLOYMENT TERM. The term of this Agreement (the "Employment
Term") shall commence on the Agreement Date and shall continue through
October 31, 2000, subject to any earlier termination of Employee's status
as an employee pursuant to this Agreement.
3. DEVOTION TO RESPONSIBILITIES. During the Employment Term, the
Employee shall devote all of his business time to the business of the
Company, shall use his reasonable best efforts to perform faithfully and
efficiently his duties under this Agreement, and shall not engage in or be
employed by any other business; provided, however, that nothing contained
herein shall prohibit the Employee from (a) serving as a member of the
board of directors, board of trustees or the like of any for-profit or non-
profit entity that does not compete with the Company, or performing
services of any type for any civic or community entity, whether or not the
Employee receives compensation therefor, (b) investing his assets in such
form or manner as shall require no more than nominal services on the part
of the Employee in the operation of the business of the entity in which
such investment is made, or (c) serving in various capacities with, and
attending meetings of, industry or trade groups and associations, as long
as the Employee's engaging in any activities permitted by virtue of clauses
(a), (b) and (c) above does not materially and unreasonably interfere with
the ability of the Employee to perform the services and discharge the
responsibilities required of him under this Agreement. Notwithstanding
clause (b) above, during the Employment Term, the Employee may not
beneficially own more than 2% of the equity interests of a business
organization required to file periodic reports with the Securities and
Exchange Commission under the Securities Exchange Act of 1934 (the
"Exchange Act") and may not beneficially own more than 2% of the equity
interests of a business organization that competes with the Company. For
purposes of this paragraph, "beneficially own" shall have the same meaning
ascribed to that term in Rule 13d-3 under the Exchange Act.
ARTICLE II
COMPENSATION AND BENEFITS
During the Employment Term, the Company shall provide the Employee
with the compensation and benefits described below:
1. SALARY. A salary ("Base Salary") at the rate of $200,000 per
fiscal year of the Company ("Fiscal Year"), payable to the Employee at such
intervals as other salaried employees of the Company are paid.
2. BONUS. During the Employment Term, the Employee shall be
eligible to receive a bonus (the "Bonus") of up to $125,000 per Fiscal
Year. Such Bonus shall be comprised of two elements, the quantitative
element and the qualitative element:
(a) The quantitative element shall be equal to 75% of the
maximum Bonus of $125,000 and shall be based on the attainment of certain
goals to be established by the President of the Central Division of the
Company (or his designee) and the Employee.
(b) The qualitative element shall be 25% of the maximum Bonus of
$125,000 and shall be awarded at the discretion of the President of the
Central Division of the Company. The President of the Central Division of
the Company (or designee) and the Employee shall establish incentive goals
and other criteria for the award of the qualitative element.
The foregoing notwithstanding, the Company shall pay to the Employee
not less than $100,000 of the Bonus for the Fiscal Year ending October 31,
1998 and not less than $100,000 of the Bonus for the Fiscal Year ending
October 31, 1999 each payable ratably on a quarterly basis (i.e. January
31, April 30, July 31 and October 31).
The Bonus shall be paid in cash no later than 30 days following the
filing of the Company's annual report on Form 10-K for the Fiscal Year in
which the Bonus has been earned.
3. BENEFITS. The Company shall provide the Employee with the
following fringe benefits and perquisites:
(a) An automobile allowance of $600 per month plus all costs of
operations including gasoline, maintenance and insurance;
(b) Reimbursement for membership dues, including assessments and
similar charges, in one or more clubs deemed useful for business purposes
in such amounts as may be approved by the President of the Central
Division;
(c) Fully-paid insurance benefit package available to all
employees; the Company shall waive the 90 day waiting period set forth in
the insurance benefits package;
(d) All other benefit programs similar to those provided other
Regional Chief Operating Officers of the Company; and
(e) All costs of maintaining professional certification as a
licensed Certified Public Account.
4. 1995 INCENTIVE COMPENSATION PLAN. The Employee shall be eligible
to receive awards under the Company's 1995 Incentive Compensation Plan (the
"1995 Plan").
5. EXPENSES. The Employee shall be reimbursed for reasonable out-
of-pocket expenses incurred from time to time on behalf of the Company or
any subsidiary in the performance of his duties under this Agreement, upon
the presentation of such supporting invoices, documents and forms as the
Company reasonably requests.
ARTICLE III
TERMINATION OF EMPLOYMENT
1. DEATH. The Employee's status as an employee shall terminate
immediately and automatically upon the Employee's death during the
Employment Term.
2. DISABILITY. The Employee's status as an employee may be
terminated for "Disability" as follows:
(a) The Employee's status as an employee shall terminate if the
Employee has a disability that would entitle him to receive benefits under
the Company's long-term disability insurance policy in effect at the time
either because he is Totally Disabled or Partially Disabled, as such terms
are defined in the Company's policy in effect as of the Agreement Date or
as similar terms are defined in any successor policy. Any such termination
shall become effective on the first day of which the Employee is eligible
to receive payments under such policy (or on the first day that he would be
so eligible, if he had applied timely for such payments).
(b) If the Company has no long-term disability plan in effect,
if (i) the Employee is rendered incapable because of physical or mental
illness of satisfactorily discharging his duties and responsibilities under
this Agreement for a period of 90 consecutive days and (ii) a duly
qualified physician chosen by the Company and acceptable to the Employee or
his legal representatives so certifies in writing, the Board makes such a
determination, the Company shall have the continuing right and option,
during the period that such disability continues, and by notice given in
the manner provided in this Agreement, to terminate the status of Employee
as an employee. Any such termination shall become effective 30 days after
such notice of termination is given, unless within such 30-day period, the
Employee becomes capable of rendering services of the character
contemplated hereby (and a physician chosen by the Company and acceptable
to the Employee or his legal representatives so certifies in writing) and
the Employee in fact resumes such services.
(c) The "Disability Effective Date" shall mean the date on which
termination of employment becomes effective due to Disability.
3. CAUSE. The Company may terminate Employee's status as an
employee for Cause. As used herein, termination by the Company of the
Employee's status as an employee for "Cause" shall mean termination as a
result of (a) the Employee's breach of this Agreement, or (b) the willful
engaging by the Employee in gross misconduct injurious to the Company,
which in either case is not remedied within 10 days after the Company
provides written notice to the Employee of such breach or willful
misconduct.
4. GOOD REASON. The Employee may terminate his status as an
employee for Good Reason. As used herein, the term "Good Reason" shall
mean:
(a) The occurrence of any of the following during the Employment
Term:
(i) the assignment by the Company's President or the
President of the Central Division to the Employee of any duties or
responsibilities that are inconsistent with the Employee's status, title
and position as Chief Operating Officer, Western Region, Central Division.
(ii) any removal of the Employee from, or any failure to
reappoint or reelect the Employee to, the position of Chief Operating
Officer, Western Region, Central Division, except in connection with a
termination of Employee's status as an employee as permitted by this
Agreement;
(iii) the Company's requiring the Employee to be based
anywhere other than in the Dallas, Texas metropolitan area, except for
required travel in the ordinary course of the Company's business;
(b) any breach of this Agreement by the Company that continues
for a period of 10 days after written notice thereof is given by the
Employee to the Company;
(c) the failure by the Company to obtain the assumption of its
obligations under this Agreement by any successor or assign as contemplated
in this Agreement; or
(d) any purported termination by the Company of the Employee's
status as an employee for Cause that is not effected pursuant to a Notice
of Termination satisfying the requirements of this Agreement.
5. VOLUNTARY TERMINATION BY THE COMPANY. The Company may terminate
the Employee's status as employee for other than death, Disability or
Cause.
6. VOLUNTARY TERMINATION BY THE EMPLOYEE. The Employee may
terminate the Employee's status as employee for other than Good Reason.
7. NOTICE OF TERMINATION. Any termination by the Company for
Disability or Cause, or by the Employee for Good Reason, shall be
communicated by Notice of Termination to the other party hereto given in
accordance with Article VI Section 2 of this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice that (a)
indicates the specific termination provision in this Agreement relied upon
(b) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provisions so indicated and (c) if the Date of
termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than
30 days after the giving of such notice). The failure by the Employee or
the Company to set forth in the Notice of Termination any fact or
circumstance that contributes to a showing of Good Reason, Disability or
Cause shall not negate the effect of the notice nor waive any right of the
Employee or the Company, respectively, hereunder or precluded the Employee
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Employee's or the Company's rights hereunder.
8. DATE OF TERMINATION. "Date of Termination" means (a) if
Employee's employment is terminated by reason of his death or Disability,
the Date of Termination shall be the date of death of Employee or the
Disability Effective Date, as the case may be, (b) if Employee's employment
is terminated by the Company for Cause, or by Employee for Good Reason, the
date of delivery of the Notice of Termination or any later date specified
therein, (which date shall not be more than 30 days after the giving of
such notice) as the case may be, (c) if the Employee's employment is
terminated by the Company for reasons other than death, Disability or
Cause, the Date of Termination shall be the date on which the Company
notifies the Employee of such termination, and (d) if the Employee's
employment is terminated by the Employee for reasons other than Good
Reason, the Date of Termination shall be the date on which the Employee
notifies the Company of such termination.
ARTICLE IV
OBLIGATIONS UPON TERMINATION
1. DEATH. If the Employee's status as an employee is terminated by
reason of the Employee's death, this Agreement shall terminate without
further obligations to the Employee's legal representatives under this
Agreement, other than the obligation to make any payments due pursuant to
employee benefit plans maintained by the Company or its subsidiaries.
2. DISABILITY. If Employee's status as an employee is terminated by
reason of Employee's Disability, this Agreement shall terminate without
further obligation to the Employee, other than the obligation to make any
payments due pursuant to employee benefit plans maintained by the Company
or its subsidiaries.
3. TERMINATION BY COMPANY FOR REASONS OTHER THAN DEATH, DISABILITY
OR CAUSE; TERMINATION BY EMPLOYEE FOR GOOD REASON. If the Company
terminates the Employee's status as an employee for reasons other than
death, Disability or Cause, or the Employee terminates his employment for
Good Reason, then
(a) the Company shall pay to the Employee an amount equal to two
times the amount of Base Salary in effect at the Date of Termination,
payable in equal installments over a two-year period at such intervals as
other salaried employees of the Company are paid; and
(b) with respect to all performance-based options granted to the
Employee pursuant to the 1995 Plan,
(i) if the performance goals have been met as of the Date of
Termination, then such options shall become exercisable as of the
Date of Termination (if not already exercisable) and shall expire
on the date that is the later of:
(A) 30 days after the Date of Termination or
(B) 30 days after the first date on which the exercise
of the options and sale of the underlying securities will
not (1) be matched with purchases or sales of the Company's
common stock prior to such Date of Termination such as to
cause the Employee to insure a liability to the Company
under Section 16 of the Exchange Act and (2) destroy the
Section 16 exemption for the grant of the options.
(ii) if the performance goals have not been met as of the
Date of Termination, then
(A) if the performance goals are not met by the close
of business on the day that is 180 days after the Date of
Termination, then the options shall expire on such day; and
(B) if the performance goals are met by the close of
business on the day that is 180 days after the Date of
Termination, then the options shall become exercisable as of
the date of such performance goals are met (the "Vesting
Date") and shall expire on the date that is the later of:
(1) 30 days after the Vesting Date or
(2) 30 days after the first date on which the
exercise of the options and sale of the underlying
securities will not (I) be matched with purchases or
sales of the Company's common stock prior to such Date
of Termination such as to cause the Employee to incur a
liability to the Company under Section 16 of the
Exchange Act and (II) destroy the Section 16 exemption
for the grant of the options.
4. CAUSE. If the Employee's status as an employee is terminated by
the Company for Cause, this Agreement shall terminate without further
obligation to the Employee other than for obligations imposed by law and
obligations imposed pursuant to any employee benefit plan maintained by the
Company or its subsidiaries.
5. TERMINATION BY EMPLOYEE FOR REASONS OTHER THAN GOOD REASON. If
the Employee's status as an employee is terminated by the Employee for
reasons other than Good Reason, then the Company shall pay to the Employee
an amount equal to a single year's Base Salary in effect at the Date of
Termination, payable in equal installments over a two-year period at such
intervals as other salaried employees of the Company are paid.
6. RESIGNATION. If Employee is a director of the Company or any of
its subsidiaries and his employment is terminated for any reason other than
death, the Employee shall, if requested by the Company, immediately resign
as a director of the Company or any of its subsidiaries. If such
resignation is not received when so requested, the Employee shall forfeit
any right to receive any payments pursuant to this Agreement.
ARTICLE V
NONDISCLOSURE, NONCOMPETITION AND PROPRIETARY RIGHTS
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "Confidential Information" means any information, knowledge
or data of any nature and in any form (including information that is
electronically transmitted or stored on any form of magnetic or electronic
storage media) relating to the past, current or prospective business or
operations of the Company and its subsidiaries, that at the time or times
concerned is not generally known to persons engaged in businesses similar
to those conducted or contemplated by the Company and its subsidiaries
(other than information known by such persons through a violation of an
obligation of confidentiality to the Company), whether produced by the
Company and its subsidiaries or any of their consultants, agents or
independent contractors or by Employee, and whether or not marked
confidential, including without limitation information relating to the
Company's or its subsidiaries' products and services, business plans,
business acquisitions, processes, product or service research and
development methods or techniques, training methods and other operational
methods or techniques, quality assurance procedures or standards, operating
procedures, files, plans, specifications, proposals, drawings, charts,
graphs, support data, trade secrets, supplier lists, supplier information,
purchasing methods or practices, distribution and selling activities,
consultants' reports, marketing and engineering or other technical studies,
maintenance records, employment or personnel data, marketing data,
strategies or techniques, financial reports, budgets, projections, cost
analyses, price lists, formulae and analyses, employee lists, customer
records, customer lists, customer source lists, proprietary computer
software, and internal notes and memoranda relating to any of the
foregoing.
(b) "Death Care Business" means (i) the owning and operating of
funeral homes and cemeteries, including combined funeral home and cemetery
facilities, (ii) the offering of a complete range of services and products
to meet families' funeral needs, including prearrangement, family
consultation, the sale of caskets and related funeral and cemetery products
and merchandise, the removal, preparation and transportation of remains,
cremation, the use of funeral home facilities for visitation and worship,
and related transportation services, (iii) the marketing and sale of
funeral services and cemetery property on an at-need or prearranged basis,
(iv) providing, managing and administering financing arrangements
(including trust funds, escrow accounts, insurance and installment sales
contracts) for prearranged funeral plans and cemetery property and
merchandise, (v) providing interment services, the sale (on an at-need or
prearranged basis) of cemetery property including lots, lawn crypts, family
and community mausoleums and related cemetery merchandise such as
monuments, memorials and burial vaults, (vi) the maintenances of cemetery
grounds pursuant to perpetual care contracts and laws or on a voluntary
basis, and (vii) offering mausoleum design, construction and sales
services.
2. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. During the Employment
Term, Employee shall hold in a fiduciary capacity for the benefit of the
Company all Confidential Information which shall have been obtained by
Employee during Employee's employment (whether prior to or after the
Agreement Date) and shall use such Confidential Information solely within
the scope of his employment with and for the exclusive benefit of the
Company. For a period of five years after the Employment Term, commencing
with the Date of Termination, Employee agrees (a) not to communicate,
divulge or make available to any person or entity (other than the Company)
any such Confidential Information, except upon the prior written
authorization of the Company or as may be required by law or legal process,
and (b) to deliver promptly to the Company any Confidential Information in
his possession, including any duplicates thereof and any notes or other
records Employee has prepared with respect thereto. In the event that the
provisions of any applicable law or the order of any court would require
Employee to disclose or otherwise make available any Confidential
Information, Employee shall give the Company prompt prior written notice of
such required disclosure and an opportunity to contest the requirement of
such disclosure or apply for a protective order with respect to such
Confidential Information by appropriate proceedings.
3. LIMITED COVENANT NOT TO COMPETE. During the Employment Term and
for a period of two years thereafter, commencing with the Date of
Termination, Employee agrees that, with respect to each State of the United
States or other jurisdiction, or specified portions thereof, in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries, as identified in Appendix "A" attached
hereto and forming a part of this Agreement, and in which the Company or
any of its subsidiaries engages in the Death Care Business on the Date of
Termination (collectively, the "Subject Areas"), Employee will restrict his
activities within the Subject Areas as follows:
(a) Employee will not, directly or indirectly, for himself or
others, own, manage, operate, control, be employed in an executive,
managerial or supervisory capacity by, or otherwise engage or participate
in or allow his skill, knowledge, experience or reputation to be used in
connection with, the ownership, management, operation or control of, any
company or other business enterprise engaged in the Death Care Business
within any of the Subject Areas; provided, however, that nothing contained
herein shall prohibit Employee from making passive investments as long as
Employee does not beneficially own more than 2% of the equity interests of
a business enterprise engaged in the Death Care Business within any of the
Subject Areas. For purposes of this paragraph, "beneficially own" shall
have the same meaning ascribed to that term in Rule 13d-3 under the
Exchange Act.
(b) Employee will not call upon any customer of the Company or
its subsidiaries for the purpose of soliciting, diverting or enticing away
the business of such person or entity, or otherwise disrupting any
previously established relationship existing between such person or entity
and the Company or its subsidiaries;
(c) Employee will not solicit, induce, influence or attempt to
influence any supplier, lessor, licensor, potential acquiree or any other
person who has a business relationship with the Company or its
subsidiaries, or who on the Date of Termination is engaged in discussions,
or negotiations to enter into a business relationship with the Company or
its subsidiaries, to discontinue or reduce the extent of such relationship
with the Company or its subsidiaries; and
(d) Employee will not make contact with any of the employees of
the Company or its subsidiaries with whom he had contact during the course
of his employment with the Company for the purpose of soliciting such
employee for hire, whether as an employee or independent contractor, or
otherwise disrupting such employee's relationship with the Company or its
subsidiaries.
(e) Employee further agrees that, for a period of one year from
and after the Date of Termination, Employee will not hire, on behalf of
himself or any company engaged in the Death Care Business with which
Employee is associated, any employee of the Company or its subsidiaries as
an employee or independent contractor, whether or not such engagement is
solicited by Employee; provided, however, that the restriction contained in
this subsection (e) shall not apply to Company employees who reside in, or
are hired by Employee to perform work in, any of the Subject Areas located
within the State of Arkansas.
Employee agrees that he will from time to time upon the Company's
request promptly execute any supplement, amendment, restatement or other
modification of Appendix "A" as may be necessary or appropriate to
correctly reflect the jurisdictions which, at the time of such
modification, should be covered by Appendix "A" and this Article V Section
3. Furthermore, Employee agrees that all references to Appendix "A" in
this Agreement shall be deemed to refer to Appendix "A" as so supplemented,
amended, restated or otherwise modified from time to time.
4. INJUNCTIVE RELIEF; OTHER REMEDIES. Employee acknowledges that a
breach by Employee of Section 2 or 3 of this Article V would cause
immediate and irreparable harm to the Company for which an adequate
monetary remedy does not exist; hence, Employee agrees that, in the event
of a breach or threatened breach by Employee of the provisions of Section 2
or 3 of this Article V during or after the Employment Term, the Company
shall be entitled to injunctive relief restraining Employee from such
violation without the necessity of proof of actual damage or the posting of
any bond, except as required by non-waivable, applicable law. Nothing
herein, however, shall be construed as prohibiting the Company from
pursuing any other remedy at law or in equity to which the Company may be
entitled under applicable law in the event of a breach or threatened breach
of this Agreement by Employee, including without limitation the recovery of
damages and/or costs and expenses, such as reasonable attorneys' fees,
incurred by the Company as a result of any such breach. In addition to the
exercise of the foregoing remedies, the Company shall have the right upon
the occurrence of any such breach to cancel any unpaid salary, bonus,
commissions or reimbursements otherwise outstanding at the Date of
Termination. In particular, Employee acknowledges that the payments
provided under Article IV Sections 3 and 5 are conditioned upon Employee
fulfilling any noncompetition and nondisclosure agreements contained in
this Article V. In the event Employee shall at any time materially breach
any noncompetition or nondisclosure agreements contained in this Article V,
the Company may suspend or eliminate payments under Article IV during the
period of such breach. Employee acknowledges that any such suspension or
elimination of payments would be an exercise of the Company's right to
suspend or terminate its performance hereunder upon Employee's breach of
this Agreement; such suspension or elimination of payments would not
constitute, and should not be characterized as, the imposition of
liquidated damages.
5. REQUESTS FOR WAIVER IN CASES OF UNDUE HARDSHIP. In the event
that Employee should find any of the limitations of Article V Section 3
(including without limitation the geographic restrictions of Appendix "A")
to impose a severe hardship on Employee's ability to secure other
employment, Employee may make a request to the Company for a waiver of the
designated limitations before accepting employment that otherwise would be
a breach of Employee's promises and obligations under this Agreement. Such
request must be in writing and clearly set forth the name and address of
the organization with that employment is sought and the location, position
and duties that Employee will be performing. The Company will consider the
request and, in its sole discretion, decide whether and on what conditions
to grant such waiver.
6. GOVERNING LAW OF THIS ARTICLE V; CONSENT TO JURISDICTION. Any
dispute regarding the reasonableness of the covenants and agreements set
forth in this Article V, or the territorial scope or duration thereof, or
the remedies available to the Company upon any breach of such covenants and
agreements, shall be governed by and interpreted in accordance with the
laws of the State of the United States or other jurisdiction in which the
alleged prohibited competing activity or disclosure occurs, and, with
respect to each such dispute, the Company and Employee each hereby
irrevocably consent to the exclusive jurisdiction of the state and federal
courts sitting in the relevant State (or, in the case of any jurisdiction
outside the United States, the relevant courts of such jurisdiction) for
resolution of such dispute, and agree to be irrevocably bound by any
judgment rendered thereby in connection with such dispute, and further
agree that service of process may be made upon him or it in any legal
proceeding relating to this Article V and/or Appendix "A" by any means
allowed under the laws of such jurisdiction. Each party irrevocably waives
any objection he or it may have as to the venue of any such suit, action or
proceeding brought in such a court or that such a court is an inconvenient
forum.
7. EMPLOYEE'S UNDERSTANDING OF THIS ARTICLE. Employee hereby
represents to the Company that he has read and understands, and agrees to
be bound by, the terms of this Article. Employee acknowledges that the
geographic scope and duration of the covenants contained in Article V
Section 3 are the result of arm's-length bargaining and are fair and
reasonable in light of (i) the importance of the functions performed by
Employee and the length of time it would take the Company to find and train
a suitable replacement, (ii) the nature and wide geographic scope of the
operations of the Company and its subsidiaries, (iii) Employee's level of
control over and contact with the business and operations of the Company
and its subsidiaries in a significant number of jurisdictions where same
are conducted and (iv) the fact that all facets of the Death Care Business
are conducted by the Company and its subsidiaries throughout the geographic
area where competition is restricted by this Agreement. It is the desire
and intent of the parties that the provisions of this Agreement be enforced
to the fullest extent permitted under applicable law, whether now or
hereafter in effect and, therefore, to the extent permitted by applicable
law, the parties hereto waive any provision of applicable law that would
render any provision of this Article V invalid or unenforceable.
ARTICLE VI
MISCELLANEOUS
1. BINDING EFFECT.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and any of its successors or assigns.
(b) This Agreement is personal to the Employee and shall not be
assignable by the Employee without the consent of the Company (there being
no obligation to give such consent) other than such rights or benefits as
are transferred by will or the laws of descent and distribution.
(c) The Company shall require any successor to or assignee of
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) all or substantially all of the assets or businesses of the
Company (i) to assume unconditionally and expressly this Agreement and (ii)
to agree to perform all of the obligations under this Agreement in the same
manner and to the same extent as would have been required of the Company
had no assignment or succession occurred, such assumption to be set forth
in a writing reasonably satisfactory to the Employee. In the event of any
such assignment or succession, the term "Company" as used in this Agreement
shall refer also to such successor or assign.
2. NOTICES. All notices hereunder must be in writing and shall be
deemed to have given upon receipt of delivery by: (a) hand (against a
receipt therefor), (b) certified or registered mail, postage prepaid,
return receipt requested, (c) a nationally recognized overnight courier
service (against a receipt therefor) or (d) telecopy transmission with
confirmation of receipt. All such notices must be addressed as follows:
If to the Company, to:
Xxxxxxx Enterprises, Inc.
000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, III
If to the Employee, to:
Xxxxxxx X. Xxxxx
0000 Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
or such other address as to which any party hereto may have notified the
other in writing.
3. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Louisiana
without regard to principles of conflict of laws, except as expressly
provided in Article V Section 6 above with respect to the resolution of
disputes arising under, or the Company's enforcement of, Article V of this
Agreement.
4. WITHHOLDING. The Employee agrees that the Company has the right
to withhold, from the amounts payable pursuant to this Agreement, all
amounts required to be withheld under applicable income and/or employment
tax laws, or as otherwise stated in documents granting rights that are
affected by this Agreement.
5. SEVERABILITY. If any term or provision of this Agreement
(including without limitation those contained in Appendix "A"), or the
application thereof to any person or circumstance, shall at any time or to
any extent be invalid, illegal or unenforceable in any respect as written,
Employee and the Company intend for any court construing this Agreement to
modify or limit such provision temporally, spatially or otherwise so as to
render it valid and enforceable to the fullest extent allowed by law. Any
such provision that is not susceptible of such reformation shall be ignored
so as to not affect any other term or provision hereof, and the remainder
of this Agreement, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid, illegal
or unenforceable, shall not be affected thereby and each term and provision
of this Agreement shall be valid and enforced to the fullest extent
permitted by law.
6. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach thereof.
7. REMEDIES NOT EXCLUSIVE. No remedy specified herein shall be
deemed to be such party's exclusive remedy, and accordingly, in addition to
all of the rights and remedies provided for in this Agreement, the parties
shall have all other rights and remedies provided to them by applicable
law, rule or regulation.
8. COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and
understands that the Employee serves at the pleasure of the President of
the Central Division of the Company, and that the Company has the right at
any time to terminate Employee's status as an employee of the Company, or
to change or diminish his status during the Employment Term, subject to the
rights of the Employee to claim the benefits conferred by this Agreement.
9. JURY TRIAL WAIVER. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS AGREEMENT.
10. SURVIVAL. The rights and obligations of the Company and Employee
contained in Article V of this Agreement shall survive the termination of
the Agreement. Following the Date of Termination, each party shall have
the right to enforce all rights, and shall be bound by all obligations, of
such party that are continuing rights and obligations under this Agreement.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have caused this
Agreement to be executed as of the Agreement Date.
XXXXXXX ENTERPRISES, INC.
BY: /s/ Xxxxxxx X. Xxxx
--------------------
XXXXXXX X. XXXX
PRESIDENT
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
--------------------
XXXXXXX X. XXXXX
