EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 1st day of April, 1996, is between CARRIAGE
FUNERAL SERVICES OF IDAHO, INC., an Idaho corporation (the "Company"), and
XXXXXX X. XXXXXXXX, a resident of Asotin County, Washington (the "Employee").
1. EMPLOYMENT TERM. The Company hereby employs the Employee for a
term commencing on the date hereof and, subject to earlier termination as
provided in Section 7 hereof, continuing for a period of five (5) years
thereafter (such term being herein referred to as the "term of this Agreement").
The Employee agrees to accept such employment and to perform the services
specified herein, all upon the terms and conditions hereinafter stated.
2. DUTIES. The Employee shall serve the Company and shall report to,
and be subject to the general direction and control of, the Board of Directors
of the Company (the "Board"). The Employee shall perform the professional and
administrative duties of Special Advisor to the Board with respect to the
Company's funeral home and cemetery operations in the States of Washington and
Idaho, and such other duties as are from time to time assigned to him by the
Board and as are not inconsistent wish the provisions hereof. In such capacity,
the Employee shall provide advice and analysis regarding the operation,
management, personnel and marketing of such funeral homes and cemeteries, assist
in community relations with respect to such homes and cemeteries, and provide
reasonable advice and assistance to the Manager of such funeral homes and
cemeteries. The Employee will also consult with the Company as to strategic
acquisitions of funeral homes and cemeteries in Idaho and Washington.
3. EXTENT OF SERVICE. The Employee shall devote sufficient time and
attention to the business of the Company as shall be necessary and appropriate
to fulfill his duties specified in Section 2 above. 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. In providing such service (and,
in particular, in assisting the Company in locating and making acquisitions in
Washington and Idaho), the Employee shall act solely in tile interests of the
Company and not in the interests of any other funeral service/ cemetery company
or intermediary.
4. COMPENSATION. During the term of this Agreement, the Company
shall pay the Employee a salary of $2,083.33 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
biweekly 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
-1-
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 such 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:
(a) The Company shall have the right to display, and may use
in its advertising, portraits of the Employee.
(b) The Company shall have the right to advertise its business
as being carried on in the manner and tradition and according to the
standards established by the Employee.
(c) 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 sup pliers, employees,
patrons, customers and others who may at any time have or have had
business relations with the Company.
(d) The Employee shall encourage and recommend the use of the
services of the Company by relatives, friends and acquaintances in
need of funeral or burial services.
(e) The Employee will not encourage, recommend or approve the
use at any time of the services of any competitor of the Company.
(f) 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.
(g) 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 Agree ment
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
-2-
to the Employee had he not died. In case of such a termination,
provided that I, Xxxxx Xxxxxxxx survives the Employee, the Company
shall thereupon enter into an Employment Agreement with Xxx.
Xxxxxxxx providing for the same duties, compensation and benefits as
provided in this Agreement for the remainder of the term hereof.
(b) DISABILITY. If during the tenn 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 Board, 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 Agree ment. In the event of a termination pursuant to this para
graph (b), the Company shall be relieved of all its obliga tions
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 Agree ment 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 sub sequent death that
portion of the Employee's salary accrued through the date of
termination. For purposes of this Agree ment, 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 involv ing 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 satisfaction of the Board,
(iii) the Employee's com mission of acts amounting to gross
negligence or willful misconduct to the detriment of the Company, or
(iv) the Employee's breach of any provision of this Agreement.
8. CONFIDENTIAL INFORMATION. The Employee acknowledges that in the
course of his employment with the Company he will receive certain trade secrets,
lists of customers, management methods, operating techniques, prospective
acquisitions, employee
-3-
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 tile Information is confidential and he agrees not to reveal
the Information to anyone outside the Company so long as the confi dential or
secret nature of the Information shall continue. The Employee further agrees
that he will at no time use the Information in competing with the Company. Upon
termination of this Agreement, the Employee shall surrender to the Company all
papers, documents, writings and other property produced by his or coming into
his possession by or through his employment or relating to the Information and
the Employee agrees that all such materials will at all times remain the
property of the Company. The Employee further agrees to maintain as
confidential, and to not disclose to any other person (including other employees
of the Company), the terms of this Agreement (including the compensation and
benefits described in Sections 4 and 5), except that such terms may be disclosed
to the Employee's spouse, the Company's payroll clerk responsible for paying the
Employee's compensation, appropriate taxing authorities, and otherwise as
authorized by the Board. The Employee acknowledges that a remedy at law for any
breach or attempted breach of the foregoing provisions of this Section 8 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.
9. 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. Xxxxxx X. Xxxxxxxx
0000 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
If to the Company: Carriage Funeral Services
of Idaho, Inc.
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxx,
President
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
10. 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
-4-
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.
11. 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.
12. BINDING EFFECT. Subject to the provisions of Section 11 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.
13. 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.
14. 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.
15. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Idaho.
16. 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 FUNERAL SERVICES
OF IDAHO, INC.
By: /s/ XXXX X. XXXXXX
XXXX X. XXXXXX,
Executive Vice President
/s/ XXXXXX X. XXXXXXXX
XXXXXX X. XXXXXXXX
-5-
