Exhibit 10.21
-------------
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement (the "Agreement") is entered into by and between Rose
Hills Company (the "Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("Executive"), as of the
6th day of November 2000.
XVII. EMPLOYMENT.
----------
The Company hereby employs Executive and Executive hereby accepts such
employment, upon the terms and conditions hereinafter set forth. This
Agreement shall continue in effect without interruption until terminated
according to its terms (See Article IV.)
XVIII. DUTIES.
------
A. Executive shall serve during the course of his employment as Executive
Vice-President, Sales and Marketing, and shall have such other duties and
responsibilities as the President of the Company shall determine from
time to time.
B. Executive agrees to devote substantially all of his time, energy and
ability to the business of the Company.
C. For the term of this Agreement, Executive shall report to the President
of the Company or his designee.
XIX. COMPENSATION.
------------
A. Base Salary. The Company will pay to Executive a base salary at the rate of
-----------
$250,000 per year. Such salary shall be earned monthly and shall be payable
in periodic installments no less frequently than monthly in accordance with
the Company's customary practices. Amounts payable shall be reduced by
standard withholding and other authorized deductions. The Company will
review Executive's salary at least annually. The Company may in its
discretion increase Executive's salary but it may not reduce it during the
term of this Agreement.
B. Annual Bonus. Executive shall be paid an annual bonus (the "Bonus") based
------------
upon the Company's performance in each fiscal year as measured against
EBITDA targets established for the Company. The amount of the Bonus will be
in the range of 0%-100% of the Base Salary. The EBITDA targets and
corresponding bonus levels shall be determined by the Board annually, in its
sole discretion. For
1
2000, the bonus, if any, will be prorated at the rate of 16.67% of what the
full annual bonus would be, taking the Company's EBITDA from January 1, 2000
through December 31, 2000 into account.
C. Phantom Equity Compensation. During the term of Executive's employment,
---------------------------
Executive shall be entitled to participate in the Rose Hills Company Phantom
Equity Appreciation Plan (the "Phantom Equity Plan") as set forth in Exhibit
A, incorporated by reference herein, on such terms as determined by the
Board or its designee. Provided that Executive satisfies all of the
requirements of the Phantom Equity Plan, Executive shall be eligible to
receive up to fourteen percent (14%) of the Bonus Pool as defined by and in
accordance with the terms of the Phantom Equity Plan. For purposes of the
Phantom Equity Plan, Executive shall be deemed to have commenced his
employment with the Company on November 1, 2000, and any payment to which
Executive may be entitled under the Phantom Equity Plan shall be
proportional based upon the number of full calendar months in which the
Executive was employed by the Company during the applicable performance
measurement period under the Phantom Equity Plan. By way of example, if the
applicable performance period under the Phantom Equity Plan is January 1,
2000 to December 31, 2003 (or 48 calendar months), and Executive is employed
by the Company from November 1, 2000 through December 31, 2003 (or 38
calendar months), then Executive shall be entitled to receive 38/48 of his
applicable percentage of the Bonus Pool pursuant to the terms of the Phantom
Equity Plan.
D. Moving Allowance. On January 2, 2001, the Company will pay to Executive a
----------------
one time moving allowance of $30,000.
E. Savings and Retirement Plans. Executive shall be entitled to participate in
----------------------------
all savings and retirement plans, practices, policies and programs
applicable generally to other peer executives of the Company.
F. Welfare Benefit Plans. Executive and/or his family, as the case may be,
---------------------
shall be eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs provided by the
Company (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death
and travel accident insurance plans and programs) to the extent applicable
generally to other peer executives of the Company.
G. Expenses. Executive shall be entitled to receive prompt reimbursement for
--------
all reasonable employment expenses incurred by him in accordance with the
policies, practices and procedures as in effect generally with respect to
other peer executives of the Company.
H. Fringe Benefits. Executive shall be entitled to fringe benefits in
---------------
accordance with the plans, practices, programs and policies as in effect
generally with respect to other peer executives of the Company
I. Vacation. Executive shall be entitled to take twenty business days
--------
vacation in each calendar year, which shall be taken at such time as is
consistent with Executive's responsibilities hereunder.
J. Modifications in Benefits Plans. The Company reserves the right to modify,
-------------------------------
suspend or discontinue any and all of the above plans, practices, policies
and programs at any time without recourse by Executive so long as such
action is taken generally with respect to other similarly situated peer
executives and does not single out Executive.
XX. TERMINATION.
-----------
A. Termination By The Company.
--------------------------
2
1. Termination For Cause. The Company may, by providing written notice to
---------------------
Executive, terminate Executive's employment hereunder for Cause at any time.
The term "Cause" for purpose of this Agreement shall mean:
a. willful malfeasance or willful misconduct by Executive in connection with
his employment; or
b. fraudulent conduct by Executive in connection with the business affairs of
the Company, which causes material injury to the Company; or
c. intentional refusal or intentional failure to act in accordance with any
lawful and proper direction or order of the President or the Board; or
d. any material breach by Executive of this Agreement; or
e. theft, embezzlement, or other criminal misappropriation of funds by
Executive from the Company; or
f. Executive's conviction of or entrance of a plea of guilty or nolo contendere
to a felony.
If Executive's employment is terminated for Cause, the termination shall
take effect on the effective date of written notice of such
termination to Executive.
In the event of the termination of Executive's employment hereunder due
to a termination by the Company for Cause, then Executive shall be entitled
to receive a lump sum cash payment equal to the sum of (i) accrued but unpaid
Base Salary as of the date of termination of Executive's employment hereunder
and (ii) accrued vacation. If Executive's employment hereunder is terminated
by the Company for Cause, Executive shall not be entitled to receive any
payment, benefit, or compensation, except as expressly set forth in this
paragraph IV. A. 1.
If the Company attempts to terminate Executive's employment pursuant to Section
IV. A. 1. and it is ultimately determined that the Company lacked Cause, the
provisions of Section IV. A. 2. ("Termination by the Company--Termination
Without Cause") will apply, and the Company shall pay interest on any past due
payments at the rate of ten percent (10%) per year from the date on which the
applicable payment would have been made pursuant to Section IV. A. 1.
2. Termination Without Cause. The Company may, with or without reason,
-------------------------
terminate the Period of Employment and Executive's employment hereunder
without Cause at any time, by providing Executive written notice of such
termination. In the event of the termination of the Period of Employment and
Executive's employment hereunder due to a termination by the Company without
Cause (other than due to Executive's death or Permanent Disability), then
Executive shall be entitled to receive a lump sum cash payment equal to the
sum of (i) accrued but unpaid Base Salary as of the date of termination of
Executive's employment hereunder; (ii) accrued vacation; and (iii) a cash
bonus equal to one year's base salary. Executive shall further be eligible
to receive a pro-rated bonus as set forth in Paragraph III. B. herein, to be
paid at the time the bonus calculation would have been made absent
Executive's termination.
3. Exclusive Remedy. Executive agrees that the payments contemplated by this
----------------
Agreement shall constitute the exclusive and sole remedy for any termination
of his employment and Executive covenants not to assert or pursue any other
remedies, at law or in equity, with respect to any termination of
employment.
B. Termination By Executive. Executive shall have the right to terminate this
------------------------
Agreement at any time upon 90 days notice to the Company. In the event that
Executive so terminates, he shall be entitled, at the time the termination
becomes effective, to a lump sum payment from the Company (i) in respect of
vacation accrued, but not used; and (ii) for compensation earned under the
terms of paragraph III. A. hereof ("Compensation Payment"), but not paid as
of the effective date of the termination. Said
3
Compensation Payment shall not include all or any part of any Bonus or
equity compensation in respect of the year in which said termination occurs.
XXI. ARBITRATION.
-----------
Any controversy arising out of or relating to this Agreement, its
enforcement or interpretation, or because of an alleged breach, default, or
misrepresentation in connection with any of its provisions, or any other
controversy arising out of Executive's employment, including, but not limited
to, any state or federal statutory claims, shall be submitted to arbitration in
Los Angeles County, California, before a sole arbitrator selected from Judicial
Arbitration and Mediation Services, Inc., Los Angeles County, California, or its
successor ("JAMS"), or if JAMS is no longer able to supply the arbitrator, such
arbitrator shall be selected from the American Arbitration Association, and
shall be conducted in accordance with the provisions of California Code of Civil
Procedure (S)(S) 1280 et seq. as the exclusive forum for the resolution of such
------
dispute; provided, however, that provisional injunctive relief may, but need
-------- -------
not, be sought by either party to this Agreement in a court of law while
arbitration proceedings are pending, and any provisional injunctive relief
granted by such court shall remain effective until the matter is finally
determined by the Arbitrator. Final resolution of any dispute through
arbitration may include any remedy or relief which the Arbitrator deems just and
equitable, including any and all remedies provided by applicable state or
federal statutes. At the conclusion of the arbitration, the Arbitrator shall
issue a written decision that sets forth the essential findings and conclusions
upon which the Arbitrator's award or decision is based. Any award or relief
granted by the Arbitrator hereunder shall be final and binding on the parties
hereto and may be enforced by any court of competent jurisdiction. The parties
acknowledge and agree that they are hereby waiving any rights to trial by jury
in any action, proceeding or counterclaim brought by either of the parties
against the other in connection with any matter whatsoever arising out of or in
any way connected with this Agreement or Executive's employment. The parties
agree that Company shall be responsible for payment of the forum costs of any
arbitration hereunder, including the Arbitrator's fee. Executive and Company
further agree that in any proceeding to enforce the terms of this Agreement, the
prevailing party shall be entitled to its or his reasonable attorneys' fees and
costs (other than forum costs associated with the arbitration) incurred by it or
him in connection with resolution of the dispute in addition to any other relief
granted.
XXII. NONCOMPETITION.
--------------
A. Executive agrees that, during the term of this Agreement, he will not,
directly or indirectly, without the prior written consent of the Board of
Directors of the Company, provide consultative service with or without pay,
own, manage, operate, join, control, participate in, or be connected as a
stockholder, partner, or otherwise with, any business, individual, partner,
firm, corporation, or other entity which is then in competition with the
business of the Company or any present affiliate of the Company.
B. It is expressly agreed that the Company will or would suffer irreparable
injury if Executive were to compete with the business of the Company or any
subsidiary or affiliate of the Company in violation of this Agreement and
that the Company would by reason of such competition be entitled to
injunctive relief in a court of appropriate jurisdiction. Executive consents
and stipulates to the entry of such injunctive relief in such a court
prohibiting him from competing with the Company or any subsidiary or
affiliate of the Company in violation of this Agreement.
XXIII. ANTISOLICITATION.
----------------
Executive promises and agrees that he will not, during his employment and for a
period of one year following termination of his employment he will not influence
or attempt to influence customers of the Company or any of its present or future
subsidiaries or affiliates, either directly or indirectly, to divert their
business to any individual, partnership, firm, corporation or other entity then
in competition with the business of the Company, or any subsidiary or affiliate
of the Company.
XXIV. SOLICITING EMPLOYEES.
--------------------
Executive promises and agrees that he will not, during his employment and for a
period of one year following termination of his employment, directly or
indirectly solicit any of the Company employees who earned annually $25,000 or
more as a Company employee during the last six months of his or her own
employment to work for any business, individual, partnership, firm, corporation,
or other entity then in competition with the business of the Company or any
subsidiary or affiliate of the Company.
4
XXV. CONFIDENTIAL INFORMATION.
------------------------
A. Executive shall hold in a fiduciary capacity for the benefit of the Company
all secret or confidential information, knowledge or data relating to the
Company or any of its affiliated companies, and their respective businesses,
which shall have been obtained by Executive during his employment by the
Company or any of its affiliated companies and which shall not be or become
public knowledge (other than by acts by Executive or his representatives in
violation of this Agreement). After termination of Executive's employment
with the Company, he shall not, without the prior written consent of the
Company, or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone
other than the Company and those designated by it.
B. Executive agrees that all styles, designs, lists, materials, books, files,
reports, correspondence, records, and other documents ("Company material")
used, prepared, or made available to Executive, shall be and shall remain
the property of the Company. Upon the termination of employment, all Company
materials shall be returned immediately to the Company, and Executive shall
not make or retain any copies thereof.
XXVI. SUCCESSORS.
----------
A. This Agreement is personal to Executive and shall not, without the prior
written consent of the Company, be assignable by Executive.
B. This Agreement shall inure to the benefit of and be binding upon the Company
and its successors and assigns and any such successor or assignee shall be
deemed substituted for the Company under the terms of this Agreement for all
purposes. As used herein, "successor" and "assignee" shall include any
person, firm, corporation or other business entity which at any time,
whether by purchase, merger or otherwise, directly or indirectly acquires
the stock of the Company or to which the Company assigns this Agreement by
operation of law or otherwise.
XXVII. WAIVER.
------
No waiver of any breach of any term or provision of this Agreement shall be
construed to be, nor shall be, a waiver of any other breach of this Agreement.
No waiver shall be binding unless in writing and signed by the party waiving the
breach.
XXVIII. MODIFICATION.
------------
This Agreement may not be amended or modified other than by a written agreement
executed by Executive and the President or his successor.
XXIX. SAVINGS CLAUSE.
--------------
If any provision of this Agreement or the application thereof is held invalid,
the invalidity shall not affect other 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.
XVI. COMPLETE AGREEMENT.
------------------
This Agreement constitutes and contains the entire agreement and final
understanding concerning Executive's employment with the Company and the other
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 matter 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.
5
XXX. GOVERNING LAW.
-------------
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, by the laws
of the State of California without regard to principles of conflict of laws.
XXXI. COMMUNICATIONS.
--------------
All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered or if mailed by
registered or certified mail, postage prepaid, addressed to Executive at ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or addressed to the Company at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Either party may change the address
at which notice shall be given by written notice given in the above manner.
XXXII. EXECUTION.
---------
This Agreement is being executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Photographic copies of such signed counterparts may be
used in lieu of the originals for any purpose.
In witness whereof, the parties hereto have executed this Agreement as of the
date first above written.
ROSE HILLS COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------- ------------------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: President and CEO Executive Vice President,
Sales and Marketing
6
