EMPLOYMENT AGREEMENT
THIS AGREEMENT, made effective as of the 8th day of October,
1996, is between CARRIAGE SERVICES, INC., a Delaware corporation (the
"Company"), and GARY O'SULLIVAN, a resident of Harris County, Texas (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 Executive Vice
President of Operations of the Company. The Employee shall perform the
management and administrative duties of Senior Vice President - Marketing of the
Company. The Employee shall also serve in such capacity on subsidiaries of the
Company and shall perform such other duties as are from time to time assigned to
him by the Executive Vice President - Operations of the Company and as are not
inconsistent with the provisions hereof.
3. EXTENT OF SERVICE. The Employee shall devote his full business
time and attention to the business of the Company, and, except as may be
specifically permitted by the Company, shall not be engaged in any other
business activity during the term of this Agreement. 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.
4. COMPENSATION. During the term of this Agreement, the Company
shall pay the Employee a salary of $15,833.33 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
bi-weekly 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 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 the
following benefits during the term of this Agreement:
(a) A performance-based bonus payable in respect of each fiscal
year of the Company, equal to (i) $40,000.00 if the Company's
consolidated net revenues (as hereafter defined) from cemetery
activities for such year is at least the Budgeted Amount (as hereafter
defined) and (ii) $25,000.00 if the Company's consolidated net revenues
from funeral activities for such year is at least the Budgeted Amount.
For purposes hereof, "consolidated net revenues" means for any fiscal
year the gross revenues of the Company and its consolidated subsidiaries
from cemetery or funeral activities (as the case may be) for such year,
less cancellations, discounts and returns, determined in accordance with
generally accepted accounting principles, and "Budgeted Amount" means an
amount determined from year to year by the Chief Executive Officer of
the Company, in consultation with the Chief Financial Officer and the
Executive Vice President of Operations, and communicated to the
Employee, it being understood, however, that the Budgeted Amount may be
subject to adjustment during any year based upon the Company's
determination of its growth in relation to its assumptions upon which
the original Budgeted Amount was set;
(b) Options under the Company's 1996 Stock Option Plan for 30,000
shares, at an exercise price of $18.00 per share, subject to vesting in
the same manner as other options heretofore granted under such Plan; and
(c) Such other 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 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 suppliers, employees,
patrons, customers and others who may at any time have or have had
business relations with the Company.
(b) 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.
(c) 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
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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 to the Employee had he not died.
(b) DISABILITY. If during the term 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
Company, 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 Agreement. In the event of a termination pursuant
to this paragraph (b), the Company shall be relieved of all its
obligations 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 Agreement 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 subsequent death that portion of the
Employee's salary accrued through the date of termination. For purposes
of this Agreement, 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 involving 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 reasonable satisfaction of the
Executive Vice President of Operations, (iii) the Employee's commission
of acts amounting to gross negligence or willful misconduct to the
material detriment of the Company, or (iv) the Employee's breach of any
provision of this Agreement.
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(d) DISCHARGE WITHOUT CAUSE. Prior to the end of the term of this
Agreement, the Company may discharge the Employee without Cause (as
defined in paragraph (c) above) and terminate this Agreement. In such
case this Agreement shall automatically terminate and the Company shall
have no further obligation to the Employee or his estate, except that
the Company shall continue to pay to the Employee or his estate in the
event of his subsequent death the Employee's base salary under Section
4, and shall continue to include the Employee in any group health and
hospitalization insurance program on the same terms as other employees
of the Company, for the remainder of the term of this Agreement. 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 been discharged.
8. RESTRICTIVE COVENANT. If the employment of the
Employee is terminated for any reason (including voluntary
resignation), then the Employee agrees that for a period of two (2)
years thereafter, he will not, directly or indirectly:
(i) alone or for his own account, or as a partner, member,
employee, advisor, or agent of any partnership or joint venture, or as a
trustee, officer, director, shareholder, employee, advisor, or agent of
any corporation, trust, or other business organization or entity,
encourage, support, finance, be engaged in, interested in, or concerned
with any business having an office or being conducted within a radius of
fifty (50) miles of any funeral home or cemetery business owned or
operated by the Company or any of its subsidiaries at the time of such
termination, which business is directly or indirectly in competition
with the business of the Company;
(ii) induce or assist anyone in inducing in any way
any employee of the Company to resign or sever his or her
employment or to breach an employment contract with the
Company; or
(iii) own, manage, advise, encourage, support, finance, operate,
join, control, or participate in the ownership, management, operation,
or control of or be connected in any manner with any business which is
or may be in the funeral, mortuary, crematory, cemetery or burial
insurance business or in any business related thereto within a radius of
fifty (50) miles of any funeral home or cemetery business owned or
operated by the Company or any of its subsidiaries at the time of such
termination.
The foregoing covenants shall not be held invalid or unen- forceable
because of the scope of the territory or actions subject hereto or restricted
hereby, or the period of time within which such covenants respectively are
operative, but the maximum
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territory, the action subject to such covenants and the period of time they are
enforceable are subject to any determination by a final judgment of any court
which has jurisdiction over the parties and subject matter.
9. CONFIDENTIAL INFORMATION. The Employee acknowledges that in
the course of his employment by the Company he has received and will continue to
receive certain trade secrets, lists of customers, management methods, operating
techniques, prospective acquisitions, employee 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 the Information is
confidential and he agrees not to reveal the Information to anyone outside the
Company so long as the confidential 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 Company's payroll clerk responsible for
paying the Employee's compensation, appropriate taxing authorities, and
otherwise as authorized by the Company. The Employee acknowledges that a remedy
at law for any breach or attempted breach of the foregoing provisions of this
Section 9 or under Section 8 above 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.
10. 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: Mr. Gary O'Sullivan
15 North Meadowmist
The Woodlands, Tx 77381
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If to the Company: Carriage Services, Inc.
1300 Post Oak Boulevard, Suite 1500
Houston, Texas 77056
Attn: President
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
11. 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 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.
12. 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 pay-
ments hereunder, it being agreed that such payments and the right
thereto are nonassignable and nontransferable.
13. BINDING EFFECT. Subject to the provisions of Sec-
tion 12 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.
14. 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.
15. 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.
16. GOVERNING LAW. This Agreement shall be construed
and enforced in accordance with and governed by the laws of the
State of Texas.
17. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
CARRIAGE SERVICES, INC.
By:______________________________________
MELVIN C. PAYNE,
Chief Executive Officer
___________________________________________
GARY O'SULLIVAN
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