EXHIBIT 10.30
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RESIGNATION AND GENERAL RELEASE AGREEMENT
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This Resignation and General Release Agreement ("Agreement"), made this 31st
day of January 2002, by and between Xxxxxx Xxxx ("Xxxx") an individual, and Rose
Hills Company, a corporation ("Rose Hills"), is a resignation agreement which
includes a general release of claims.
In consideration of the covenants undertaken and the releases contained in this
Agreement, Xxxx and Xxxx Hills agree as follows:
1. Concurrently with the execution of this Agreement, Xxxx shall voluntarily
resign from his position as President and Chief Executive Officer, and as
an employee of Rose Hills in any other capacity by executing Exhibit A
attached hereto, such resignation to be effective February 1, 2002. Rose
Hills hereby accepts Xxxx'x resignation.
2. Rose Hills shall pay to Xxxx xxxxxxxxx equal to two year's base pay
($500,000 plus an amount up to $10,000 for moving expenses). All payments
hereunder are stated as gross amount and will be subject to standard
withholding and authorized deductions. That sum ($500,000 minus withholding
and authorized deductions) shall be paid in biweekly installments for a
period of twenty-four months beginning February 2, 2002. Rose Hills will
further pay for COBRA coverage for Xxxx during the eligible period.
3. Rose Hills expressly denies any violation of any of its policies,
procedures, state or federal laws or regulations. Accordingly, while this
Agreement resolves all issues between Xxxx and Xxxx Hills relating to any
alleged violation of Rose Hills' policies or procedures or any state or
federal law or regulation, this Agreement does not constitute an
adjudication or finding on the merits and it is not, and shall not be
construed as, an admission by Rose Hills of any violation of its policies,
procedures, state or federal laws or regulations. Moreover, neither this
Agreement nor anything in this Agreement shall be construed to be or shall
be admissible in any proceeding as evidence of or an admission by Rose
Hills of any violation of its policies, procedures, state or federal laws
or regulations. This Agreement may be introduced, however, in any
proceeding to enforce the Agreement. Such introduction shall be pursuant to
an order protecting its confidentiality.
4. Except for those obligations created by or arising out of this Agreement,
Xxxx on behalf of himself, his descendants, dependents, heirs, executors,
administrators, assigns, and successors, and each of them, hereby covenants
not to xxx and fully releases and discharges Rose Hills, and its parent,
subsidiaries and affiliates, past and present, and each of them, as well as
its and their trustees, directors, officers, agents, attorneys, insurers,
employees, shareholders, stockholders, representatives, assigns, and
successors, past and present, and each of them, hereinafter together and
collectively referred to as "Releasees," with respect to and from any and
all claims, wages, demands, rights, liens, agreements, contracts,
covenants, actions, suits, causes of action, obligations, debts, costs,
expenses, attorneys' fees, damages, judgments, orders and liabilities of
whatever kind or nature in law, equity or otherwise, whether now known or
unknown, suspected or unsuspected, and whether or not concealed or hidden,
which he now owns or holds or he has at any time heretofore owned or held
or may in the future hold as against said Releasees, arising out of or in
any way connected with his employment relationship with Rose Hills, or his
voluntary resignation from employment or any other transactions,
occurrences, acts or omissions or any loss, damage or injury whatever,
known or unknown, suspected or unsuspected, resulting from any act or
omission by or on the part of said Releasees, or any of them, committed or
omitted prior to the date of this Agreement including, without limiting the
generality of the foregoing, any claim under Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, the Family and Medical Leave Act of 1993, the California
Fair Employment and Housing Act, the California Family Rights Act, or any
claim for severance pay, bonus, sick leave, holiday pay, vacation pay, life
insurance, health or medical insurance or any other fringe benefit,
workers' compensation or disability, except that this Agreement shall not
affect Xxxx'x vested right to payment under the Retirement Plan for Rose
Hills Employees and the Company's 401(k) Plan.
5. It is the intention of Xxxx in executing this instrument that the same
shall be effective as a bar to each and every claim, demand and cause of
action hereinabove specified. In furtherance of this intention, Xxxx hereby
expressly waives any and all rights and benefits conferred upon his by the
provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and expressly
consents that this Agreement shall be given full force and effect according
to each and all of its express terms and provisions, including those
related to unknown and unsuspected claims, demands and causes of action, if
any, as well as those relating to any other claims, demands and causes of
action hereinabove specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
Xxxx acknowledges that he may hereafter discover claims or facts in addition to
or different from those which Xxxx now knows or believes to exist with respect
to the subject matter of this Agreement and which, if known or suspected at the
time of executing this Agreement, may have materially affected this settlement.
Nevertheless, Xxxx hereby waives any right, claim or cause of action that might
arise as a result of such different or additional claims or facts. Xxxx
acknowledges that he understands the significance and consequence of such
release and such specific waiver of SECTION 1542.
6. Xxxx expressly acknowledges and agrees that, by entering into this
Agreement, he is waiving any and all rights or claims that he may have
arising under the Age Discrimination in Employment Act of 1967, as amended,
which have arisen on or before the date of execution of this Agreement.
Xxxx further expressly acknowledges and agrees that:
a. In return for this Agreement, he will receive compensation beyond
that which he was already entitled to receive before entering into
this Agreement;
b. He was orally advised and is hereby advised in writing by this
Agreement to consult with an attorney before signing this Agreement;
c. He was given a copy of this Agreement on January 31, 2002, and
informed that he had 21 days within which to consider the Agreement;
and
d. He was informed that he has seven (7) days following the date of
execution of the Agreement in which to revoke the Agreement.
7. Xxxx acknowledges that by reason of his position with Rose Hills he has
been given access to lists of customers, prices, and similar confidential
or proprietary materials or information respecting Rose Hills' business
affairs. Xxxx represents that he has held all such information
confidential and will continue to do so, and that he will not use such
information and relationships for any business (which term herein includes
a partnership, firm, corporation or any others entity) without the prior
written consent of Rose Hills.
8. Xxxx and Xxxx Hills agree that the terms and conditions of this Agreement
shall remain confidential as between the parties and neither shall disclose
them to any others person, subject to the terms of this paragraph. Without
limiting the generality of the foregoing, neither Xxxx nor Rose Hills will
respond to or in any way participate in or contribute to any public
discussion, notice or others publicity concerning, or in any way relating
to, execution of this Agreement or the events (including any negotiations)
which led to its execution. Without limiting the generality of the
foregoing, Xxxx specifically agrees that he shall not disclose information
regarding this Agreement to any current or former employee of Releasees.
Xxxx hereby agrees that disclosure by his of any of the terms and
conditions of the Agreement in violation of the foregoing shall constitute
and be treated as a material breach of this Agreement. The only exceptions
to the obligations imposed by this paragraph are that Xxxx may disclose the
terms of this settlement to his immediate family, tax and financial
advisors and legal counselors, and Rose Hills may disclose the terms of the
settlement to anyone it reasonably believes necessary to effectuate the
terms of this Agreement or is required to disclose under the Securities Act
of 1934.
9. Xxxx and Xxxx Hills each warrant and represent that neither has heretofore
assigned or transferred to any person not a party to this Agreement any
released matter or any part or portion thereof and each shall defend,
indemnify and hold harmless the others from and against any claim
(including the payment of attorneys' fees and costs actually incurred
whether or not litigation is commenced) based on or in connection with or
arising out of any such assignment or transfer made, purported or claimed.
10. Xxxx and Rose Hills acknowledge that any employment or contractual
relationship between them is terminated on February 1, 2002, and that they
have no further employment or contractual relationship except as may arise
out of this Agreement and that Xxxx waives any right or claim to
reinstatement as an employee of Rose Hills and will not seek employment in
the future with Rose Hills or any Releasee.
11. Xxxx agrees that he shall be exclusively liable for the payment of all
federal and state taxes which may be due as the result of the consideration
received from the settlement of disputed claims as set forth herein and
Xxxx hereby represents that he shall make payments on such taxes at the
time and in the amount required. In addition, Xxxx hereby agrees fully to
defend, indemnify and hold harmless Releasees and each of them from payment
of taxes, interest and/or penalties that are required of them by any
government agency at any time as the result of payment of the consideration
set forth herein.
12. This instrument constitutes and contains the entire agreement and final
understanding concerning Xxxx'x employment, voluntary resignation from the
same and the others subject matters addressed herein between the parties.
It is intended by the parties as a complete and exclusive statement of the
terms of their agreement. It supersedes and replaces all prior negotiations
and all agreements proposed or otherwise, whether written or oral,
concerning the subject matters hereof. Any
representation, promise or agreement not specifically included in this
Agreement shall not be binding upon or enforceable against either party.
This is a fully integrated agreement.
13. Either Xxxx or Xxxx Hills may revoke this Agreement in its entirety during
the seven (7) days following execution of the Agreement by Xxxx. Any
revocation of the Agreement must be in writing and hand delivered during
the revocation period. This Agreement will become effective and enforceable
seven (7) days following execution by Xxxx, unless it is revoked during the
seven-day period.
14. If any provision of this Agreement or the application thereof is held
invalid, the invalidity shall not affect others provisions or applications
of the Agreement which can be given effect without the invalid provisions
or applications and to this end the provisions of this Agreement are
declared to be severable.
15. This Agreement shall be deemed to have been executed and delivered within
the State of California, and the rights and obligations of the parties
hereunder shall be construed and enforced in accordance with, and governed
by, the laws of the State of California without regard to principles of
conflict of laws.
16. Each party has cooperated in the drafting and preparation of this
Agreement. Hence, in any construction to be made of this Agreement, the
same shall not be construed against any party on the basis that the party
was the drafter.
17. This Agreement may be executed in counterparts, and each counterpart, when
executed, shall have the efficacy of a signed original. Photographic copies
of such signed counterparts may be used in lieu of the originals for any
purpose.
18. Any dispute or controversy between Xxxx, on the one hand, and Rose Hills
(or any others Releasee), on the others hand, in any way arising out of,
related to, or connected with this Agreement or the subject matter thereof,
or otherwise in any way arising out of, related to, or connected with
Xxxx'x employment with Rose Hills or the termination of Xxxx'x employment
with Rose Hills shall be resolved through final and binding arbitration in
Los Angeles, California, pursuant to California Civil Procedure Code (S)(S)
1282-1284.2. In the event of such arbitration, the prevailing party shall
be entitled to recover all reasonable costs and expenses incurred by such
party in connection therewith, including attorneys' fees. The nonprevailing
party shall also be solely responsible for all costs of the arbitration,
including, but not limited to, the arbitrator's fees, court reporter fees,
and any and all others administrative costs of the arbitration, and
promptly shall reimburse the prevailing party for any portion of such costs
previously paid by the prevailing party. Any dispute as to the
reasonableness of costs and expenses shall be determined by the arbitrator.
Except as may be necessary to enter judgment upon the award or to the extent
required by applicable law, all claims, defenses and proceedings (including,
without limiting the generality of the foregoing, the existence of the
controversy and the fact that there is an arbitration proceeding) shall be
treated in a confidential manner by the arbitrator, the parties and their
counsel, and each of their agents, and employees and all others acting on behalf
of or in concert with them. Without limiting the generality of the foregoing,
no one shall divulge to any third party or person not directly involved in the
arbitration the contents of the pleadings, papers, orders, hearings, trials, or
awards in the arbitration, except as may be necessary to enter judgment upon an
award as required by applicable law. Any court proceedings relating to the
arbitration hereunder, including, without limiting the generality of the
foregoing, to prevent or compel arbitration or to confirm, correct, vacate or
otherwise enforce an arbitration award, shall be filed under seal with the
court, to the extent permitted by law.
19. No waiver of any breach of any term or provision of this Agreement shall be
construed to be, or shall be, a waiver of any others breach of this
Agreement. No waiver shall be binding unless in writing and signed by the
party waiving the breach.
20. In entering this Agreement, the parties represent that they have relied
upon the advice of their attorneys, who are attorneys of their own choice,
and that the terms of this Agreement have been completely read and
explained to them by their attorneys, and that those terms are fully
understood and voluntarily accepted by them.
21. All parties agree to cooperate fully and to execute any and all
supplementary documents and to take all additional actions that may be
necessary or appropriate to give full force to the basic terms and intent
of this Agreement and which are not inconsistent with its terms.
I have read the foregoing Agreement and I accept and agree to the provisions it
contains and hereby execute it voluntarily with full understanding of its
consequences.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
EXECUTED this 31st day of January 2002, at Los Angeles County,
California.
By: Xxxxxx Xxxx
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Xxxxxx Xxxx
EXECUTED this 31st day of January 2002, at Los Angeles County,
California.
ROSE HILLS COMPANY
By: /S/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chairman of the Board
ACKNOWLEDGMENT AND WAIVER
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I, Xxxxxx Xxxx, hereby acknowledge that I was given 21 days to consider the
foregoing Agreement and voluntarily chose to sign the Agreement prior to the
expiration of the 21-day period.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
EXECUTED this 31st day of January 2002, at Los Angeles County,
California.
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
EXHIBIT A
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Xx. Xxxxxx X. Xxxxxxx
Chairman
Rose Hills Company
January 31, 2002
Dear Xxxxxx:
This is to advise you that effective February 1, 2002, I hereby voluntarily
resign my position as President and Chief Executive Officer, and any other
capacity with Rose Hills Company and will not seek reemployment with Rose Hills
Company or any related entity.
Sincerely yours,
/S/ Xxxxxx Xxxx
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Xxxxxx Xxxx
