EXHIBIT 10.6
EMPLOYMENT
AGREEMENT
(Caryn Crump)
THIS AGREEMENT made as of the 4th day
of October, 2004, by and among Rock of Ages Corporation, a Delaware
corporation, with a place of business at 772 Graniteville Road,
Graniteville, Vermont (the "Company"), and Caryn Crump (the
"Employee"), residing at 115 N. 53 rd Street, Omaha,
Nebraska 68132.
FACTUAL BACKGROUND:
A. Company wishes to employ Employee as
an officer of the Company, initially as Vice President/Marketing of
the Memorials Division of the Company, reporting to the Chief
Operating Officer of the Memorials Division of the Company, with
principal responsibilities for the development and implementation
of the Company's marketing strategy for its memorial products to
increase sales of the Company's products within its memorial
distribution system (the "Position") and with such other executive
duties and responsibilities, and such other or different senior
executive positions, as Company may assign to Employee; and
Employee wishes to accept such employment subject to the terms and
conditions of this agreement.
B. Company and its direct and
indirect subsidiaries, successors and assigns (herein referred to
as the ROAC Corporate Group) quarry, manufacture, sell and
otherwise deal in granite, marble, bronze and other memorials,
monuments and other products, perform services related thereto, and
market such products and services at wholesale and retail in the
United States and in various foreign countries (Company's
"Business") and have accumulated valuable and confidential
information including trade secrets and know-how relating to
technology, manufacturing procedures, formulas, machines, marketing
plans, sources of supply, business strategies and other business
records.
C. The agreement by Employee to
enter into the covenants contained herein is a condition precedent
to the employment of Employee by the Company in the Position;
Employee hereby acknowledges said covenants and acknowledges that
Employee's execution of this agreement is an express condition of
Employee's employment; and that said covenants are given as
material consideration for such employment and the other benefits
conferred upon Employee by this agreement.
D. As used herein, the term
"Company" shall refer to Company and, where applicable, to any
member of the ROAC Corporate Group for which Employee may from time
to time be performing services under this agreement.
NOW, THEREFORE, in consideration of the
foregoing, the employment provided hereunder, and other valuable
consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. EMPLOYMENT. Company
agrees to employ Employee, and Employee accepts employment in the
Position, reporting to the Chief Operating Officer of the Memorials
Division of the Company, all upon the terms and conditions
hereinafter set forth.
2. DUTIES AND POLICIES.
(a)
DUTIES. The Employee agrees to devote her full time and best
efforts to Employee's employment duties in the Position or such
other or different positions to which Employee may be assigned
during the Term (as hereinafter defined), and to such other duties
as may be assigned to Employee from time to time by Company.
Notwithstanding the foregoing, the Employee may, subject to the
provisions of the Company's Code of Business Conduct and Ethics and
with the approval of the Chief Operating Officer of the Memorials
Division, serve as a director or officer of an organization or
entity not in a competing business with the Company; deliver
lectures, write articles or books, or fulfill speaking engagements;
engage in charitable and community activities, provided, in each
case, that such activities do not interfere with the performance of
Employee's duties hereunder.
(b)
POLICIES. Employee agrees to abide by the policies, rules,
regulations or usages applicable to Employee as established by
Company and the ROAC Corporate Group, from time to time and
provided to Employee in writing (collectively, the Company's
"Policies").
(c)
COMPANY LOCATIONS. Employee shall be primarily assigned to the
Company's Graniteville, Vermont office, but the Employee must be
available for regular travel, meetings and temporary functions at
customers, and other Company and ROAC Corporate Group locations as
may be required to fulfill the duties and responsibilities of the
Position.
3.
TERM. The term of this agreement (the "Term") shall be five
(5) years, beginning on the date first above written, unless
terminated earlier as hereinafter provided.
4. COMPENSATION. For all services to be rendered by Employee
in any capacity hereunder, the Company shall pay Employee the
following:
(a)
SALARY. The Company shall pay Employee an annual salary of
Two Hundred Twenty Five Thousand Dollars ($225,000), less
withholding and other taxes required by federal and state law (the
"Annual Base Salary"), payable in equal monthly installments.
Employee shall be eligible to receive increases in Employee's
Annual Base Salary pursuant to periodic salary reviews consistent
with Company's corporate policies, with the first such review to be
made as of January 1, 2006; it being understood such increases are
not guaranteed, but are subject to Employee's job performance and
the determination by the Company, in its sole discretion, to award
salary increases to Employee.
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(b) BONUS. Employee may also be awarded a bonus or
bonuses from time to time during the Term in such amounts, if any,
and at such time, if any, as the Company may determine, in its sole
discretion, to award such bonuses. Employee's annual bonus target
shall be up to 50% of Annual Base Salary, with performance criteria
to achieve the bonus target to be set by the COO of the Memorials
Division or such other person as may be designated by the Company
from time to time.
5. FRINGE BENEFITS. During the term of this agreement,
Employee shall be entitled to participate in such fringe benefits
as, from time to time, may be applicable to the Company's similarly
situated employees, subject to the terms and conditions of such
fringe benefit plans. The Employee's "Initial Fringe Benefits"
include those listed on EXHIBIT 5 attached hereto and incorporated
herein by reference. The Initial Fringe Benefits may be phased out
and terminated and the Company may substitute for the Initial
Fringe Benefits such different and/or additional fringe benefits as
the Company from time to time, after the date hereof, makes
available for the Company's similarly situated employees.
Fringe
benefits as used in this section do not include cash compensation,
stock options or other compensation. The Company reserves the right
to modify, eliminate or change fringe benefits in its discretion.
Fringe benefits provided to Employee will, however, generally be
not less advantageous to Employee than those provided by Company to
its similarly situated employees.
6.
INCENTIVE STOCK OPTIONS. The Company, subject to approval by the
Rock of Ages Corporation ("ROAC") Compensation Committee, will
grant Employee incentive stock options under the Rock of Ages
Corporation Amended and Restated 1994 Stock Plan (the "Option
Plan") for Twenty Five Thousand (25,000) shares of ROAC Class A
Common Stock, One Cent ($.01) par value, at a price per share
authorized and approved by the grant by the ROAC Compensation
Committee, namely the closing price of the ROAC Class A Common
Stock on the date of grant in accordance with ROAC's 1994 Stock
Plan (the "Plan"), by ROAC and Employee of ROAC's standard form
Stock Option Agreement, which will provide that the term of the
option will be for ten (10) years, and that the options will vest
in equal installments over three years, commencing one year from
date of grant.
7.
TERMINATION.
(a) TERMINATION
BECAUSE OF DEATH OR TOTAL DISABILITY. This agreement will terminate
automatically upon the date of Employee's Death or Total
Disability. Employee shall be deemed to have incurred a Total
Disability:
(i) if Company maintains a long term disability policy in
effect for the benefit of Employee, on the date when the Employee
shall have received total disability benefits under said policy for
a period of six (6) months;
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(ii) if no such long term disability insurance policy is in effect
on the date when Employee suffers from a physical or mental
disability of such magnitude and effect that Employee is unable to
perform the essential functions of Employee's assigned Position
notwithstanding reasonable accommodation and such disability
continues during a period of twelve (12) continuous or
noncontinuous months within the eighteen (18) month period
beginning on the first day of the month in which the first day of
disability occurs;
(iii) if Employee illegally uses drugs and, as a result,
performance of Employee's duties and/or employment with Company is
in any way impaired; or
(iv) on the date when Employee receives more than twelve (12) weeks
of payments under the Social Security Act because it is determined
by the Social Security Administration that Employee is totally
disabled.
Total Disability as set forth in subsections (ii) or (iii) above
shall be deemed to have occurred upon the written certification to
Company thereof by the Employee's personal physician, which
certification may be requested in writing by Company. If Employee
does not have a personal physician or refuses to consult with
Employee's personal physician, Company may select a licensed
physician, board-certified in internal medicine or family practice,
at its cost, to examine the Employee, which physician shall, for
purposes hereof, be deemed to be the Company's physician; provided,
that if Employee refuses to be examined by the Company's physician
within thirty (30) days after the physician's appointment by
Company, then Employee may be conclusively presumed to have become
Totally Disabled as of the close of such thirty (30) days period.
If Employee disagrees with the opinion of Company physician, then
Employee may select a second licensed, board-certified physician,
at Employee's cost, to examine Employee. If said two (2) physicians
disagree as to whether Employee is Totally Disabled, then the
personal physician and the Company shall then select a third
licensed, board-certified physician, with the cost of this third
physician to be split between Company and Employee, to examine
Employee. Upon examination of Employee by the three (3) physicians,
each physician shall render an opinion with respect to the
condition of Employee in regards to Employee's Total Disability,
and the opinion of a majority of the physicians shall be binding
upon all parties.
(b) TERMINATION BY THE COMPANY OR
EMPLOYEE. The Company may terminate this agreement with or without
cause and by giving Employee thirty (30) days prior written notice.
In the event of termination or notice of termination by Company
without cause, or in the event that Employee terminates this
agreement for "Good Reason" (defined below) Employee will be
entitled to the following: (i) the then current Annual Base Salary,
payable in 12 equal monthly installments (less applicable
withholdings), with the first such installment being due on the
15th day of the month following the date of such termination and
subsequent payments being made on the same day of each of the
following months; (ii) earned but unpaid bonus (if any) for the
year in which this agreement is terminated, prorated to date of
termination and payable when such bonuses are normally paid; (iii)
continuation of health care coverage at active employee
contribution rates for a period of 2 years following the date of
termination of this agreement, provided, however, that health care
coverage shall cease if the Employee or Employee's spouse becomes
eligible for health care coverage at another employer; (iv)
reimbursement for outplacement services in an aggregate amount not
to exceed $5,000. Said payments shall release the Company from any
further obligations under this agreement.
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Termination of Employee by the Company for (1) abandonment by
the Employee of, or chronic, habitual or continuous failure by
Employee to perform, over a period of thirty (30) or more days,
Employee's duties as an employee hereunder; (2) violation, default
or breach of any of Employee's material covenants and agreements
hereunder; (3) Employee's material failure to observe, comply with
or to abide by the Company's Policies after written notice and a
reasonable opportunity to cure; (4) embezzlement or other theft of
corporate property; (5) drug, alcohol or other substance abuse, (6)
sexual harassment, battery or other criminally actionable offense
by Employee against an employee or customer of the Company; or (7)
Employee's conviction of any felony while employed by the Company
shall constitute and be in all respects termination for cause by
the Company. In the event that Employee's employment hereunder is
terminated with cause, or in the event that Employee resigns in
lieu of such termination, Employee shall not be entitled to payment
of any further compensation, salary or benefits under the terms of
this agreement (including the termination payment described above)
except (i) Annual Base Salary to date of termination; (ii) any
vested benefits under the then current Company employee benefit
plans; (iii) accrued but unused vacation; and (iv) any benefit
continuation or conversion rights under the then current Company
employee benefit plans.
Employee may resign from employment at any time for any reason
and terminate this agreement by giving thirty (30) days written
notice to Company of such intention. In such event, Company may, in
its discretion, permit Employee to work through the notice period
or accept the Employee's immediate resignation. In the event of a
resignation by Employee, Employee shall not be entitled to payment
of any further compensation, salary or benefits under the terms of
this agreement (including the termination payment described above)
except (i) Annual Base Salary to date of termination; (ii) earned
but unpaid bonus for the year prior to the date of termination;
(iii) any vested benefits under the then current Company employee
benefit plans; (iv) accrued but unused vacation; and (v) any
benefit continuation or conversion rights under the then current
Company employee benefit plans.
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For the purposes of this section 7, "Good Reason" shall mean the
occurrence, without Employee's consent, of any of the following
events or circumstances: (a) any material breach by the Company of
this agreement; (b) any material diminution in the Employee's
position, authority or responsibilities with the Company; or (c) a
change by the Company in the location of the Employee's office at
Graniteville, Vermont to a new location that is both (i) outside a
radius of 50 miles from the Employee's principal residence in
Vermont and (ii) more than 50 miles from the Employee's office in
Graniteville, Vermont.
(c) TERMINATION IN CONNECTION WITH A CHANGE
IN CONTROL. If the Employee's employment hereunder is terminated
(x) by the Company (other than a termination due to Employee's
death, Disability or for cause) within 12 months after a Change in
Control, or (y) by the Employee for Good Reason within 12 months
after a Change in Control, then (1) the Company shall pay to the
Employee a lump sum in cash within 15 days after the effective date
of termination equal to one (1) times the then current Annual Base
Salary, plus the benefits referenced in section 7(b)(ii), (iii) and
(iv) and (2) immediately prior to the effective date of such
termination, any outstanding options granted to Employee pursuant
to the Option Plan shall fully vest and become immediately
exercisable.
For the purposes of this
Agreement, a "Change in Control" shall mean:
(i)
the acquisition by any individual or entity, or by any "group" or
"person" (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
(an individual or entity or any such group or person, a "Person"),
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) after the date of this
Agreement of 50% or more of the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, h
