EXHIBIT 10.25
RESIGNATION AND GENERAL RELEASE AGREEMENT
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This Resignation and General Release Agreement ("Agreement"), made this 9th
day of April 2001, by and between Joseph Schillaci, an individual, and Rose
Hills Company ("the Company"), a corporation, is a resignation agreement which
includes a general release of claims.
In consideration of the covenants undertaken and the releases contained in
this Agreement, Mr. Schillaci and the Company agree as follows:
1. Mr. Schillaci shall voluntarily resign from his position as Executive
Vice President - Sales and Marketing and as an employee of the Company in any
other capacity by executing Exhibit A attached hereto, such resignation to be
effective April 30, 2001. The Employment Agreement between Joseph Schillaci and
Rose Hills Company is hereby declared null and void.
2. Mr. Schillaci shall return to the Company and shall not take or copy in
any form or manner lists of customers, prices, and similar confidential and
proprietary materials or information.
3. The Company shall retain Mr. Schillaci as a consultant based in Las
Vegas, Nevada, with payments made to him of $40,000 on May 15, 2001, $40,000 on
June 15, 2001, and $40,000 on July 15, 2001.
4. The Company expressly denies any violation of any of its policies,
procedures, state or federal laws or regulations. Accordingly, while this
Agreement resolves all issues between Mr. Schillaci and the Company relating to
any alleged violation of the Company's 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 the Company 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 the Company 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.
5. Except for those obligations created by or arising out of this
Agreement, Joseph Schillaci on behalf of himself, his descendants, dependents,
heirs, executors, administrators, assigns, and successors, and each of them,
hereby covenants not to sue and fully releases and discharges the Company and
its parents, subsidiaries and affiliates, past and present, and each of them, as
well as its and their trustees, directors, officers, agents, attorneys,
insurers, employees, 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
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employment relationship with the Company, 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. The Company shall pay to Mr. Schillaci his earned
but unused vacation pay as of April 30, 2001, and shall provide him any benefits
to which he is entitled under COBRA. Nothing contained herein shall affect any
right Mr. Schillaci has under California law to indemnification against claims
made by other Company employees as against him, which claims arose while Mr.
Schillaci was acting in the course and scope of employment with the Company.
6. It is the intention of Mr. Schillaci 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, Mr. Schillaci
hereby expressly waives any and all rights and benefits conferred upon him 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:
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"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."
Mr. Schillaci acknowledges that he may hereafter discover claims or facts in
addition to or different from those which Mr. Schillaci 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, Mr. Schillaci hereby waives any right,
claim or cause of action that might arise as a result of such different or
additional claims or facts. Mr. Schillaci acknowledges that he understands the
significance and consequence of such release and such specific waiver of SECTION
1542.
7. Mr. Schillaci 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. Mr.
Schillaci 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 is hereby advised in writing by this Agreement to consult with
an attorney before signing this Agreement;
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c. He was given a copy of this Agreement on April 9th, 2001, 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.
8. Mr. Schillaci acknowledges that by reason of his position with the
Company he has been given access to lists of customers, prices, and similar
confidential or proprietary materials or information respecting the Company's
business affairs. Mr. Schillaci 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 other entity) without the prior written
consent of the Company.
9. Mr. Schillaci agrees that the terms and conditions of this Agreement
shall remain confidential as between the parties and he shall not disclose them
to any other person, except as required by law, including without limitation,
the rules and regulations of the Security and Exchange Commission. Without
limiting the generality of the foregoing, Mr. Schillaci will not respond to or
in any way participate in or contribute to any public discussion, notice or
other 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, Mr. Schillaci specifically
agrees that he shall not disclose information regarding this Agreement to any
current or former employee of Releasees. Mr. Schillaci hereby agrees that
disclosure by him 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.
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10. Mr. Schillaci warrants and represents that he has not heretofore
assigned or transferred to any person not a party to this Agreement any released
matter or any part or portion thereof and he shall defend, indemnify and hold
harmless the Company 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.
11. Mr. Schillaci and the Company acknowledge that any employment or
contractual relationship between them will terminate on April 30, 2001, and that
they have no further employment or contractual relationship except as may arise
out of this Agreement and that Mr. Schillaci waives any right or claim to
reinstatement as an employee of the Company and will not seek employment in the
future with the Company or any Releasee.
12. Mr. Schillaci 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 Mr. Schillaci hereby represents that he shall make payments on such
taxes at the time and in the amount required of him. In addition, Mr. Schillaci
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.
13. Mr. Schillaci has not relied upon any advice from the Company and/or
its attorneys as to the necessity for withholding or the taxability of such
payment, whether pursuant to federal, state or local income tax statutes or
otherwise. Mr. Schillaci acknowledges that the Company does not make and has not
made any representations
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regarding the taxability of the payment to him, and he has not relied upon any
representation by the Company on that subject.
14. This instrument constitutes and contains the entire agreement and
final understanding concerning Mr. Schillaci's employment, voluntary resignation
from the same 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 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.
15. Mr. Schillaci may revoke this Agreement in its entirety during the
seven (7) days following execution of the Agreement by Mr. Schillaci. 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 Mr. Schillaci, unless it is revoked during the
seven-day period.
16. 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.
17. 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.
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18. 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.
19. 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.
20. Any dispute or controversy between Mr. Schillaci, on the one hand, and
the Company (or any other Releasee), on the other 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 Mr.
Schillaci's employment with the Company or the termination of Mr. Schillaci's
employment with the Company, 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 other 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
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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.
21. 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 other breach of this
Agreement. No waiver shall be binding unless in writing and signed by the party
waiving the breach.
22. 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.
23. After execution of this Agreement, the Company may, but is not
required to, present for approval to the Workers' Compensation Appeals Board an
appropriate stipulation or compromise and release extinguishing any and all
rights or claims Mr. Schillaci may have under applicable workers' compensation
provisions.
24. 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
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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.
EXECUTED this 9th day of April 2001, at Los Angeles County, California
_____________________________
Joseph Schillaci
EXECUTED this 9th day of April 2001, at Los Angeles County, California
ROSE HILLS COMPANY
______________________________
By: Dennis Poulsen
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ACKNOWLEDGMENT AND WAIVER
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I, Joseph Schillaci, 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 9th day of April 2001, at Los Angeles County,
California.
_______________________________
Joseph Schillaci
EXHIBIT A
Mr. Dennis Poulsen
Dear Dennis:
This is to advise you that effective April 30, 2001, I hereby voluntarily
resign my position as Executive Vice President - Sales and Marketing and any
other capacity with Rose Hills Company.
Sincerely yours,
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Joseph Schillaci