EXHIBIT 10.36
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release is between RUSSELL W. ALLEN, a
resident of Montgomery County, Texas (the "Employee"), and CARRIAGE SERVICES,
INC., a Delaware corporation (the "Company").
The Employee and the Company agree as follows:
1. The Employee's full-time employment with the Company and/or one or more
of its subsidiaries (the Company, together with its subsidiaries, being
hereafter collectively referred to as "Carriage") will terminate effective as of
December 31, 2000 (the "Transition Date") by the voluntary resignation of the
Employee. The Employee shall be entitled to receive all base compensation,
benefits and accrued vacation through the Transition Date.
2. Provided the Employee does not revoke this Agreement as provided in
Section 16 hereof, the Company shall pay the Employee a total $60,000.00, less
applicable withholdings (the "Severance Payments"). Subject to the Company's
receipt from the Employee of a properly completed and signed Non-Revocation
Statement in the form attached as Exhibit A hereto (the "Non-Revocation
Statement"), the Severance Payments shall be paid to the Employee commencing
with the first payroll period in January 2001 and shall continue thereafter
through the last payroll period in April 2001 until all of the Severance
Payments have been paid in full.
3. Simultaneously with the parties' execution of this Agreement, the
Company and the Employee are entering into a Stock Purchase Agreement of even
date herewith (the "Stock Purchase Agreement"), under which the Company is
purchasing from the Employee 46,392 shares of the Company's Class A Common
Stock, in consideration for the partial release of the Employee's debt to the
Company. The parties understand that the Stock Purchase Agreement shall not
become
effective until the Company's receipt of the properly completed and signed
Non-Revocation Statement, and in the event that the Employee revokes this
Agreement pursuant to Section 16 hereof, the Stock Purchase Agreement shall
thereupon become void ab initio as if never entered into.
4. In consideration for the Severance Payments, and for the further
consideration of the other commitments made by the Company herein and under the
Stock Purchase Agreement, the Employee hereby discharges and releases Carriage
and Carriage's stockholders, directors, officers, employees, agents, successors
and assigns (collectively, "Released Parties") from any claim, demand, and/or
cause of action whatsoever, whether vicarious, derivative, or direct, presently
known or unknown, whether sounding in contract, tort or otherwise, under common
law or by statute or regulation, that is based upon facts arising prior to the
date hereof with respect to any matter or action related to the Employee's
employment with, termination from, and/or affiliation with Carriage, or in
connection with any statements made or actions taken in connection with such
employment relationship or its termination, including, but not limited to, any
claims under the Age Discrimination in Employment Act of 1967, the Civil Rights
Act of 1964 (Title VII), as amended, the Civil Rights Act of 1991, the Pregnancy
Discrimination Act, the Family and Medical Leave Act of 1993, the Fair Labor
Standards Act, the Employee Retirement Security Act of 1974, the Americans With
Disabilities Act of 1990, the Fair Labor Standards Act, the Fair Credit
Reporting Act, the Worker Adjustment and Retraining Notification Act of 1988,
the Texas Commission on Human Rights Act, the Texas Wage Payment Statute or the
Texas Labor Code, all as amended and in effect on the date hereof, and all
claims based on the existence of any contract; breach of any duty or covenant of
good faith and fair dealing; slander; defamation; invasion of privacy;
detrimental reliance; intentional or negligent infliction of emotional distress;
duress; promissory estoppel; negligent misrepresentation; intentional
misrepresentation or fraud; assault; battery; conspiracy; negligent hiring,
retention, or supervision; any alleged act of harassment or intimidation or any
other claim arising under employment-related statutes, laws, rules and
regulations.
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5. This Agreement is not a suggestion of or an admission of any wrongdoing
or liability on the part of any party. The Employee does not waive any rights or
claims that may arise after the date hereof.
6. This Agreement supersedes and extinguishes the Executive Employment
Agreement between the parties dated November 8, 1999 ("Prior Employment
Agreement"), as well as any other employment agreement and/or bonus or incentive
compensation plan or arrangement, if any, entered into between the Employee and
Carriage. Without limiting the generality of the foregoing, the restrictive
covenants contained in Paragraph 6 of the Prior Employment Agreement shall
terminate upon effectiveness of this Agreement, provided that the Employee
agrees that from the date hereof through December 31, 2001, he will not, without
the consent of the Company's Chief Executive Officer, cause or induce any
executive-level employee of the Company to leave the Company to accept
employment elsewhere. Notwithstanding the foregoing, Paragraph 5 of the Prior
Employment Agreement - Covenant of Secrecy, shall survive such termination and
continue in effect thereafter.
7. The Company has heretofore tendered his resignation as an executive
officer of the Company effective November 3, 2000, which was accepted by the
Board of Directors. Simultaneously with the parties' execution of this
Agreement, the Employee shall tender his resignation, effective as of the
Transition Date, as an officer of any other Carriage entity of which he is
presently an officer.
8. The Employee agrees and covenants not to sue or participate in any
suit, charge or proceeding of any kind against Carriage or any of the other
Released Parties, based upon any claim, demand, and/or cause of action
whatsoever, presently known or unknown, that is based upon facts arising prior
to the date hereof with respect to any matter or action related to the
Employee's employment, termination from, and/or affiliation with Carriage, or in
connection with any statements made or actions taken in connection with such
employment relationship or its termination.
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9. Group health insurance benefits will continue only through the
Transition Date. After the Transition Date, the Employee is entitled to continue
the Employee's group health insurance coverage at his own expense, in accordance
with applicable law.
10. The Employee hereby agrees for the consideration exchanged herein that
he will not file any requests for unemployment compensation benefits.
11. The Employee agrees not to disclose or cause to be disclosed the terms
of this Agreement, or the fact that this Agreement exists, except to the
Employee's attorneys and/or tax advisors or to the extent otherwise required by
law.
12. This Agreement contains the entire agreement between the Employee and
the Company and cannot be changed, modified, or amended without a written
agreement signed by the Employee and the Company.
13. This Agreement is made and shall be enforced pursuant to the laws of
the State of Texas.
14. Should any part of this Agreement be found to be void, that
determination will not affect the remainder of the Agreement.
15. The offer made by the Company herein will expire at 12:01 a.m. on the
forty-fifth day following the date of the offer made herein. The Employee may
accept this offer at any time prior to the expiration by signing this Agreement.
16. This Agreement has been entered into voluntarily and not as a result
of coercion, duress, or undue influence, economic or otherwise. The Employee
acknowledges that he has read and fully understands the terms of this Agreement,
has been advised to consult with an attorney before executing this Agreement,
and the Severance Payments constitute recited in Section are in excess of that
to which the Employee might otherwise be entitled to receive from the Company.
The Employee represents that he has been given up to forty-five (45) days to
consider the terms of the separation as described herein. Following the date of
this Agreement, the Employee shall have a
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period of seven (7) days to revoke this Agreement by delivering to the Company,
at its address shown opposite its signature below, a written notice revoking
this Agreement and specifically referring to the right to do so under this
Section 16. If the Employee desires not to so revoke, the Employee will deliver
the Non-Revocation Notice after expiration of such seven-day period. Failure to
deliver any notice within such seven-day period shall constitute a lapse of the
Employee's right to revoke, but the Company's obligation to pay the Severance
Payments shall nonetheless remain subject to receipt from the Employee of the
signed Non-Revocation Statement. If the Employee revokes this Agreement as
aforesaid, the Employee shall forfeit all rights hereunder, including any right
to receive the Severance Payments. In addition, in the event of such revocation
(i) the Stock Purchase Agreement shall be rendered void ab initio as if never
entered into, and (ii) the provisions of the Prior Employment Agreement
(including Paragraph 6 - Restrictive Covenants) shall thereupon be reinstated.
Address:
____________________________________
11301 Lake Forest Drive RUSSELL W. ALLEN
Conroe, Texas 77384
____________________________________
Date
1900 St. James Place - 4th Floor CARRIAGE SERVICES, INC.
Houston, Texas 77056
By:_________________________________
Melvin C. Payne, Chief Executive
Officer
____________________________________
Date
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EXHIBIT A
NON-REVOCATION STATEMENT
I, RUSSELL W. ALLEN, acknowledge that at least seven (7) days has expired
since the execution of the Separation Agreement and Release between me and
Carriage Services, Inc., a Delaware corporation, on the _____ day of
___________, 2000, and I knowingly and voluntarily elect not to revoke this
Separation Agreement and Release.
EXECUTED this ____ day of ______________________, 2000.
________________________________________
RUSSELL W. ALLEN