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Exhibit 10.18
SEPARATION
AGREEMENT AND RELEASE
This Separation Agreement and
Release is between JAMES J. BENARD, a resident of Fort Bend 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
employment with the Company and/or one or more of its affiliates
(the Company, together with its affiliates, being hereafter
collectively referred to as "Carriage"), has terminated or will
terminate effective as of July 17, 2006 (the "Separation
Date") as a result of the Employee’s voluntary resignation.
The Employee shall be entitled to receive all base compensation,
benefits and accrued vacation, if any, through the Separation Date,
but not thereafter. Simultaneously with the parties’
execution of this Agreement, the Employee shall tender his
resignation, effective as of the Separation Date, as Regional
Managing Partner of, together with any and all other positions he
may hold with, the Company. He shall also tender his resignation as
director and officer of or any other capacity with all other
Carriage entities of which he may serve in any such capacity.
Provided the Employee does not
revoke this Agreement as provided in Section 15 hereof, the Company
shall pay the Employee the sum of $165,000, less applicable
withholdings (the "Severance Payments"). The Severance Payments
shall be payable to the Employee in nineteen (19) equal
bi-weekly installments in the amount of $8,461.54 each, beginning
on the next regularly scheduled payroll date of the Company after
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"), and
continuing on each succeeding payroll date thereafter, until paid
in full; with a twentieth and final installment in the amount of
$4,230.74 on the next regularly scheduled payroll date thereafter.
In addition, provided Employee does not so revoke, the remaining
5,000 shares of the Company’s Common Stock not yet vested
under
Employee’s stock bonus grant on January 9, 2003 shall
become fully vested in accordance with the letter agreement of even
date herewith.
2. Additionally, provided the
Employee complies with this Agreement and does not revoke it as
provided in Section 15 hereof, if following the Separation
Date 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 his behalf the amount of the
premiums under COBRA for the Company’s group health and
hospitalization insurance coverage which the Employee has in effect
as of the Separation Date, up to a maximum of $800 per month, for
the period beginning on the effective date of election and
continuing through the earlier to occur of (i) whenever the
Employee thereafter obtains or is eligible to obtain replacement
coverage or (ii) April 16, 2007.
3. In consideration for the
Severance Payments, the Employee hereby discharges and releases
Carriage and Carriage’s past, present and future
stockholders, directors, officers, trustees, partners, employees,
insurers, 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 Americans With Disabilities Act of
1990, the Civil Rights Act of 1964 (Title VII), the Civil Rights
Act of 1991, the Family and Medical Leave Act of 1993, the Fair
Labor Standards Act, the Employee Retirement Income Security Act of
1974, the Pregnancy Discrimination Act, the Fair Credit Reporting
Act, and the Texas Labor Code, all as amended and in effect on the
date
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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.
4. 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.
5. Except as provided below,
this Agreement supersedes and extinguishes the Employment Agreement
between the parties dated January 1, 2001, as amended by
Amendment No. 1 effective January 1, 2004 (as amended,
"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, and as
additional inducement to Employee to enter into and perform this
Agreement (provided he does not revoke it), this Agreement
supersedes and extinguishes Section 8 (Restrictive Covenants)
of the Prior Employment Agreement, from which he shall be released
hereby. Notwithstanding the foregoing, however, this Agreement does
not affect or supersede Section 6 (Certain Additional Matters)
or 9 (Confidential Information) of the Prior Employment Agreement,
each of which is hereby ratified and confirmed and shall remain in
full force and effect for the respective periods therein specified
in accordance with their respective terms.
6. 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
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Employee’s employment, termination from, leave of absence
with, request to return to work to, and/or affiliation with
Carriage, or in connection with any statements made or actions
taken in connection with such employment relationship or its
termination.
7. Group health insurance
benefits will continue only through the Separation Date. Subject to
Section 2 above, after the Separation Date, the Employee is
entitled to continue the Employee’s group health insurance
coverage at his own expense, in accordance with applicable law.
8. After the Separation Date,
Employee agrees to make himself available to answer questions and
provide information and assistance with respect to matters in which
he was involved during his employment with Carr
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