THIS AGREEMENT,
dated August 7, 2007, is between CARRIAGE SERVICES, INC., a
Delaware corporation (the “Company”), and J. Bradley
Green, a resident of Harris County, Texas (the
“Employee”).
1.
Employment Term . The Company hereby continues the
employment of the Employee for a term commencing as of the date
first above written and, subject to earlier termination or
extension as provided in Section 7 hereof, continuing until
August 6, 2010 (such term being herein referred to as the
“term of this Agreement”). The term of this Agreement
shall automatically be renewed on an annual basis thereafter,
unless terminated by either party upon sixty (60) days’
written notice prior to the end of the term then in effect. 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 Chief Executive Officer of the Company. The Employee shall
faithfully, diligently, competently, and to the best of
Employee’s ability, perform the management and administrative
duties of Vice President, General Counsel, and Secretary. The
Employee shall also serve as Vice President, General Counsel, and
Secretary of any subsidiary of the Company as requested by the
Company, and the Employee shall perform such other duties as are
from time to time assigned to him by the Chief Executive Officer as
are not inconsistent with the provisions hereof. The Employee
represents and warrants to the Company that Employee is not subject
to any obligation to any third party that would restrict or
interfere with Employee’s ability to perform
hereunder.
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
(i) from making passive investments in other businesses or
enterprises, and (ii) from engaging in other civic, charitable
and business activities, provided, however, that such investments
and activities 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 an annual salary of not less than
$230,000.00 per full calendar year of service completed
(“Base Salary”), appropriately prorated for partial
months at the commencement and end of the term of this Agreement.
The Employee’s salary and benefits will be reviewed annually,
and any increase therein shall remain in the sole discretion of the
Company, acting through the Compensation Committee of its Board of
Directors if required. The salary set forth herein shall not be
subject to reduction and 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, the Employee
shall be entitled to participate in the following benefits during
the term of this Agreement:
(i) Consideration
for an annual performance-based bonus within the sole discretion of
the Company, as may be recommended by the Chief Executive Officer
and approved by the Compensation Committee of the Company’s
Board of Directors. A target bonus will be set by the Company, and
approved by the Compensation Committee of the Company’s Board
of Directors, on an annual basis.
(ii) Eligibility
for consideration of Awards of Restricted Stock or other
incentive-based compensation under the terms of the Company’s
2006 Long Term Incentive Plan or one or more of the Company’s
other incentive plans, as the Chief Executive Officer in his sole
discretion may determine and subject to approval of the
Company’s Compensation Committee.
(iii) Four weeks
of paid vacation in each calendar year, subject to the
Company’s personnel policies respecting such
matters.
(iv) Participation
in the Company’s group health and hospitalization program,
and inclusion in such other employee benefits, as are available
generally to executive-level employees of the Company.
(v) Reimbursement
for travel, lodging and other out-of-pocket expenses reasonably
incurred by Employee in the exercise of Employee’s duties
under this Agreement which are approved by the Company in advance
and are duly substantiated in accordance with the Company’s
policies as to reimbursement. In order to assure compliance with
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), such reimbursements shall be made as soon
as practicable, but in no event later than the last day of the
calendar year following the calendar year in which the expense was
incurred.
6.
Certain Additional Matters . The Employee agrees that at all
times during the term of this Agreement and for a period of two
years following any cessation of employment with the
Company:
(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 held by its suppliers, employees, patrons,
customers and others who may at any time have or have had business
relations with the Company.
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(b) The Employee
will not knowingly or intentionally do any act or thing detrimental
to the Company or its business.
Nothing herein
shall be construed to prevent the Employee from complying with any
requirements of law or legal process or taking such actions as the
Company may consent to in writing.
(a) Death .
If the Employee dies during the term of this Agreement and while in
the employ of the Company, this Agreement 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 (i) that portion of the
Employee’s Base Salary accrued through the date on which the
Employee’s death occurred, (ii) a pro rata amount of the
annual bonus described in Section 5(i) above, based on the number
of days the Employee was employed in the year in comparison to 365,
and (iii) all benefits payable under the governing provisions
of any benefit plan or program of the Company. Such payment of Base
Salary and bonus 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 is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months. 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), (i) the Employee’s Base Salary
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, (ii) a
pro rata amount of the annual bonus described in Section 5(i)
above, based on the number of days the Employee was employed in the
year in comparison to 365, and (iii) all benefits payable
under the governing provisions of any benefit plan or program of
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. No such
termination pursuant to this paragraph (b) will relieve the
Employee of his obligations under Sections 6, 8 and 9
hereunder.
(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
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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 conviction of any
felony or any other crime involving moral turpitude, (ii) the
Employee’s repeated 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 Company’s Board of Directors, (iii) the
Employee’s commission of acts amounting to gross negligence
or willful misconduct to the detriment of the Company, or
(iv) the Employee’s material breach of any provision of
this Agreement or uniformly applied provisions of the
Company’s employee handbook or other personnel policies,
including without limitation, its Code of Business Conduct and
Ethics. Such determination of “Cause” shall be made by
the Company’s Board of Directors, and in the event of
circumstances described in (ii) or (iv), the Board shall give
written notice to the Employee specifying such circumstances and
providing a period of 30 days in which the Employee shall be
allowed to cure such circumstances.
Any such
termination by virtue of this paragraph (c) shall not
prejudice any remedy that the Company may have at law, in equity,
or under this Agreement, for breach hereof by Employee. No such
termination pursuant to this paragraph (c) will relieve the
Employee of his obligations under Sections 6, 8 and 9
hereunder.
(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), (i) the
Employee’s Base Salary for a period of 18 months
following the date of discharge, (ii) 50% of the annual target
bonus described in Section 5(i) above for the year of termination,
and (iii) all benefits payable under the governing provisions
of any benefit plan or program of the Company. In addition, if
following the date of such discharge, the Employee becomes eligible
to elect continuation coverage under the Consolidated Omnibus
Budget Reconciliation Act (“COBRA”) and properly elects
such coverage, the Company shall reimburse the Employee or pay on
the Employee’s behalf 100% of applicable medical continuation
premiums for the benefit of the Employee (and his covered
dependents as of the date of his termination, if any) under the
Employee’s then-current plan election, with such coverage to
be provided under the c
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