UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) November 13, 2007
StoneMor Partners L.P.
(Exact name of registrant as specified in its charter)
| Delaware | 000-50910 | 80-0103159 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 155 Rittenhouse Circle, Bristol, PA | 19007 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code (215) 826-2800
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Addenda to Employment Agreements with Certain Executive Officers
On November 13, 2007, StoneMor GP, LLC (“StoneMor GP”), a Delaware limited liability company and the General Partner of StoneMor Partners L.P., a Delaware limited partnership (“StoneMor”), entered into addenda (collectively, the “Addenda”) to the employment agreements, dated September 20, 2004 (the “Employment Agreements”), with each of the following executive officers: Lawrence Miller, Chief Executive Officer, President and Chairman of the Board of Directors, William R. Shane, Executive Vice President and Chief Financial Officer, Michael L. Stache, Senior Vice President and Chief Operating Officer, and Robert P. Stache, Senior Vice President – Sales.
The Addenda will become effective as of January 1, 2008. The purpose of the Addenda is, among other things, to make changes necessary to ensure that the Employment Agreements comply with the regulations under Section 409A of the Internal Revenue Code. The foregoing description of the Addenda is qualified in its entirety by reference to the Addenda, copies of which are attached as Exhibits 10.1 through 10.4 to this Current Report on Form 8-K and incorporated herein by reference.
Departure of a Director
On November 16, 2007, Jeffrey A. Zawadsky resigned from the Board of Directors of StoneMor GP due to his upcoming relocation to Moscow, Russia.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On November 13, 2007, the Board of Directors of StoneMor GP adopted Amendment No. 2 (“Amendment No. 2”) to the First Amended and Restated Agreement of Limited Partnership of StoneMor, dated as of September 20, 2004 (the “Agreement”), as amended by that certain Amendment No. 1 dated as of February 27, 2007. Amendment No. 2 became effective as of November 13, 2007. The following is a summary of the material provisions of Amendment No. 2. This summary is qualified in its entirety by reference to Amendment No. 2, which is attached to this Current Report on Form 8-K as Exhibit 3.1 and incorporated herein by reference.
Amendment No. 2, among other things, enables StoneMor’s securities to become eligible for a Direct Registration Program as required by the NASDAQ rules, by amending the definition of the term “Certificate” to include, in addition to physical certificates, the direct electronic registration of securities.
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| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. |
The following exhibits are filed herewith:
| Exhibit No. |
Description |
|
| 3.1 | Amendment No. 2 to the First Amended and Restated Agreement of Limited Partnership of StoneMor Partners L.P. | |
| 10.1 | Addendum to Employment Agreement between StoneMor GP and Lawrence Miller, effective as of January 1, 2008 | |
| 10.2 | Addendum to Employment Agreement between StoneMor GP and William R. Shane, effective as of January 1, 2008 | |
| 10.3 | Addendum to Employment Agreement between StoneMor GP and Robert P. Stache, effective as of January 1, 2008 | |
| 10.4 | Addendum to Employment Agreement between StoneMor GP and Michael L. Stache, effective as of January 1, 2008 | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| STONEMOR PARTNERS L.P. | ||||
| By: | StoneMor GP LLC | |||
| its general partner | ||||
|
Date: November 19, 2007 |
By: |
/s/ William R. Shane |
||
| Name: | William R. Shane | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
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EXHIBIT INDEX
| Exhibit No. |
Description |
|
| 3.1 | Amendment No. 2 to the First Amended and Restated Agreement of Limited Partnership of StoneMor Partners L.P. | |
| 10.1 | Addendum to Employment Agreement between StoneMor GP and Lawrence Miller, effective as of January 1, 2008 | |
| 10.2 | Addendum to Employment Agreement between StoneMor GP and William R. Shane, effective as of January 1, 2008 | |
| 10.3 | Addendum to Employment Agreement between StoneMor GP and Robert P. Stache, effective as of January 1, 2008 | |
| 10.4 | Addendum to Employment Agreement between StoneMor GP and Michael L. Stache, effective as of January 1, 2008 | |
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EXHIBIT 3.1
AMENDMENT NO. 2 TO
FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF STONEMOR PARTNERS L.P.
This Amendment No. 2 (“ Amendment No. 2 ”) to the First Amended and Restated Agreement of Limited Partnership of StoneMor Partners L.P. (the “ Partnership ”), as amended, is entered into effective as of November 13, 2007, by StoneMor GP LLC, a Delaware limited liability company (the “ General Partner ”), as general partner of the Partnership. Capitalized terms used but not defined herein are used as defined in the Partnership Agreement (as defined below).
WHEREAS , the General Partner and the Limited Partners of the Partnership entered into that certain First Amended and Restated Agreement of Limited Partnership of the Partnership dated as of September 20, 2004, as amended by that certain Amendment No. 1 dated as of February 27, 2007 (the “ Partnership Agreement ”);
WHEREAS , pursuant to NASDAQ Rule 4360, as amended, all securities of a limited partnership listed on NASDAQ on or after January 1, 2008 must be eligible for the Direct Registration Program (“ DRP ”); and
WHEREAS , in order to comply with the DRP requirements of NASDAQ Rule 4360, this Amendment No. 2 is needed to amend the provisions of Articles I, IV and X of the Partnership Agreement to allow Common Units to be uncertificated; and
WHEREAS , Section 13.1(d)(i) of the Partnership Agreement provides that the General Partner may amend any provision of the Partnership Agreement without the approval of any Limited Partner to reflect a change that, in the discretion of the General Partner, does not adversely affect the Limited Partners (including any particular class of Partnership Interests as compared to other classes of Partnership Interests) in any material respect; and
WHEREAS , acting pursuant to the power and authority granted to the General Partner under Section 13.1(d)(i) of the Partnership Agreement, the General Partner has determined that the following amendment to the Partnership Agreement does not adversely affect the Limited Partners (including any particular class of Partnership Interests as compared to other classes of Partnership Interests) in any material respect.
NOW THEREFORE , the General Partner does hereby amend the Partnership Agreement as follows:
1. The definition of the term “Certificate” in Section 1.1 shall be amended to read as follows:
““Certificate” means, at the election of the holder of Partnership Securities, either (a) a physical certificate (i) substantially in the form of Exhibit A to this Agreement, (ii) issued in global form in accordance with the rules and regulations of the Depositary or (iii) in such other form as may be adopted by the General Partner, issued by the Partnership evidencing ownership of one or more Common Units or a certificate in such form as may be adopted by the General Partner, issued by the Partnership evidencing ownership of one or more other Partnership Securities, or (b) the direct electronic registration of one or more Common Units or other Partnership Securities in the register described in Section 4.5(a) pursuant to a Direct Registration Program operated by a clearing agency registered under Section 17A of the Securities Exchange Act of 1934. ”
2. The third sentence of Section 4.1 shall be amended to read as follows:
“ In case of Partnership Securities represented by physical certificates, such Certificates shall be executed on behalf of the Partnership by the Chairman of the Board, President or any Executive Vice President, Vice President and the Secretary, or any Assistant Secretary of the General Partner.”
3. Section 4.2(a) shall be amended to read as follows:
“ In case of Partnership Securities represented by physical certificates, if any mutilated Certificate is surrendered is surrendered to the Transfer Agent, the appropriate officers of the General Partner on behalf of the Partnership shall execute, and the Transfer Agent shall countersign and deliver in exchange therefore, a new Certificate evidencing the same number and type of Partnership Securities as the Certificate so surrendered.”
4. Section 10.4(a) shall be amended to read as follows:
“A Person (other than the General Partner, an Initial Limited Partner or a Substituted Limited Partner) who makes a Capital Contribution to the Partnership in accordance with this Agreement, or who is otherwise entitled to become a Limited Partner under the Delaware Act, shall be admitted to the Partnership as an Additional Limited Partner only upon furnishing to the General Partner:
(i) evidence of acceptance in form satisfactory to the General Partner of all of the terms and conditions of this Agreement, including the power of attorney granted in Section 2.6, and
(ii) such other documents or instruments as may be required by the General Partner to effect such Person’s admission as an Additional Limited Partner.”
5. Section 10.6 shall be added to Article X to read as follows:
“ Section 10.6 Acceptance of Certificate .
The acceptance of a Certificate by any Person (including, but not limited to, the direct electronic registration of one or more Common Units or other Partnership Securities) shall (among other things) constitute conclusive evidence of acceptance of the terms and conditions of this Agreement, including the power of attorney granted in Section 2.6. ”
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6. Ratification of Partnership Agreement. Except as expressly modified and amended herein, all of the terms and conditions of the Partnership Agreement shall remain in full force and effect.
7. Governing Law. This Amendment No. 2 will be governed by and construed in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF , the General Partner has executed this Amendment No. 2 as of the date first set forth above.
|
GENERAL PARTNER:
STONEMOR GP LLC |
||
| By: | /s/ Lawrence Miller | |
| Name: |
Lawrence Miller |
|
| Title: |
President and Chief Executive Officer |
|
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EXHIBIT 10.1
ADDENDUM TO
EMPLOYMENT AGREEMENT
Agreement effective as of January 1, 2008, by and between StoneMor GP, LLC, a Delaware limited liability company (the “Company”), and Lawrence Miller (the “Executive”).
W I T N E S S E T H:
WHEREAS, the Executive and the Company entered into an employment agreement dated September 20, 2004 (the “Employment Agreement”); and
WHEREAS, the Executive and the Company desire, among other things, to amend the Employment Agreement so in order to avoid adverse tax consequences to the Executive under Section 409A of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties hereto agree to amend the Employment Agreement as follows:
1. Section 2.03 is deleted and replaced with the following:
“2.03. The Executive shall render his services diligently, faithfully and to the best of his ability, devoting thereto all of his business time, energy and skills on a full time basis, provided that the Executive may render services to or for the account of himself or any other person, firm or corporation other than the Company, but only if (i) such services are disclosed to the Board and (ii) the Board does not object thereto.”
2. Section 3.02 is amended by adding the following sentence at the end thereof:
“Such bonus shall be paid between January 1 and March 15, inclusive, of the calendar year immediately after the calendar year to which it relates, or at such other times as provided under the Company’s bonus plan, provided that such times comply with Section 409A.”
3. The following Paragraph (f) is added to Paragraph 6.01, at the end thereof:
| “f. | Notwithstanding anything in this Agreement to the contrary, to the extent necessary to avoid adverse tax consequences under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code), the Executive’s employment shall not be considered to have terminated earlier than the date on which the Executive has a ‘separation from service’ within the meaning of Section 409A.” |
4. The clause “as soon as practicable following the date of the Executive’s death” in the introductory paragraph of Paragraph 6.02(a) is deleted and replaced with “within 60 days following the date of the Executive’s death (except as otherwise provided in this Paragraph (a).”
5. Clause (vii) of Paragraph 6.02(a) is deleted and replaced with the following:
“continuation of medical benefits for the Executive’s survivors covered by said benefits, if any, for a period of two (2) years, provided however that any reimbursement of an eligible expense that would be includible in the Executive’s or a survivor’s gross income for federal income tax purposes must be made on or before the end of the Executive’s taxable year following the taxable year on which the expense was incurred; and”
6. The clause “as soon as practicable following the date of termination” in the introductory paragraph of Paragraph 6.02(b) is deleted and replaced with “within 60 days following the date of termination (except as otherwise provided in this Paragraph (b)):”.
7. Paragraph 6.02(b)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus that was earned and deferred or elected to be deferred by the Executive or the Company, unless Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within 60 days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment;”
8. Clause (vii) of Paragraph 6.02(b) is deleted and replaced with the following:
“continuation of medical benefits, if any, for a period of two (2) years, provided however that any reimbursement of an eligible expense that would be includible in the Executive’s or a survivor’s gross income for federal income tax purposes must be made on or before the end of the Executive’s taxable year following the taxable year on which the expense was incurred; and”
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9. Paragraph 6.02(c)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus that was earned and deferred or elected to be deferred by the Executive or the Company, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within 60 days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment.”
10. The following clause is added to the end of the introductory paragraph of Paragraph 6.02(d), before the colon:
“(except as provided otherwise in this Paragraph (d)”.
11. Paragraph 6.02(d)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus earned and deferred or elected to be deferred by the Executive or the Company, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within ten (10) days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment.”
12. The following clause is added at the end of Paragraph 6.02(d)(viii):
“and provided further, that if the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, any coverage or reimbursement under such plan programs and/or arrangements shall be delayed until six (6) months has expired following the Executive’s termination of employment to the extent the coverage and reimbursements are includible in the Executive’s gross income for Federal income tax purposes, unless the coverage and reimbursements, as the case may be, are for payment of medical expenses incurred and paid by the Executive but not reimbursed by a person other than the Company or an affiliate and are allowable as a deduction under Code Section 213 (without regard to the 7.5% of adjusted gross income limitation of Code Section 213(a)) during the period during which the Executive would be entitled to COBRA continuation coverage, if the Executive elected such coverage and paid the applicable premiums)” coverage not be allowed under the Company’s plans, the Company shall pay the Executive a lump sum payment, less contributions, if any, in an amount equal to the amount that the Company would have spent on Executive’s premiums, if any, for such coverage for the same period, with such payment made within ten (10) days following the Executive’s termination of employment; and”.
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13. The following clause is added at the end of the introductory paragraph of Paragraph 6.02(e), before the colon:
“(except as provided otherwise in this Paragraph (e))”.
14. Paragraph 6.02(e)(iii) is deleted and replaced with the following:
“payment for any bonus earned but deferred for any year prior to the year in which occurs the date of the termination of the Executive’s employment, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such payment shall be made within ten (10) days following the end of the six (6) month period that begins on the Executive’s termination of employment.”
IN WITNESS WHEREOF, each of the Company and the Executive has executed this Agreement as of the Effective Date.
| STONEMOR GP, LLC | ||
| By: | /s/ William R. Shane | |
|
Name: William R. Shane Title: Executive Vice President and Chief Financial Officer |
||
|
/s/ Lawrence Miller |
||
| LAWRENCE MILLER | ||
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EXHIBIT 10.2
ADDENDUM TO
EMPLOYMENT AGREEMENT
Agreement effective as of January 1, 2008, by and between StoneMor GP, LLC, a Delaware limited liability company (the “Company”), and William R. Shane (the “Executive”).
W I T N E S S E T H:
WHEREAS, the Executive and the Company entered into an employment agreement dated September 20, 2004 (the “Employment Agreement”); and
WHEREAS, the Executive and the Company desire, among other things, to amend the Employment Agreement so in order to avoid adverse tax consequences to the Executive under Section 409A of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties hereto agree to amend the Employment Agreement as follows:
1. Section 2.03 is deleted and replaced with the following:
“2.03. The Executive shall render his services diligently, faithfully and to the best of his ability, devoting thereto all of his business time, energy and skills on a full time basis, provided that the Executive may render services to or for the account of himself or any other person, firm or corporation other than the Company, but only if (i) such services are disclosed to the Board and (ii) the Board does not object thereto.”
2. Section 3.02 is amended by adding the following sentence at the end thereof:
“Such bonus shall be paid between January 1 and March 15, inclusive, of the calendar year immediately after the calendar year to which it relates, or at such other times as provided under the Company’s bonus plan, provided that such times comply with Section 409A.”
3. The following Paragraph (f) is added to Paragraph 6.01, at the end thereof:
| “f. | Notwithstanding anything in this Agreement to the contrary, to the extent necessary to avoid adverse tax consequences under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code), the Executive’s employment shall not be considered to have terminated earlier than the date on which the Executive has a ‘separation from service’ within the meaning of Section 409A.” |
4. The clause “as soon as practicable following the date of the Executive’s death” in the introductory paragraph of Paragraph 6.02(a) is deleted and replaced with “within 60 days following the date of the Executive’s death (except as otherwise provided in this Paragraph (a).”
5. Clause (vii) of Paragraph 6.02(a) is deleted and replaced with the following:
“continuation of medical benefits for the Executive’s survivors covered by said benefits, if any, for a period of two (2) years, provided however that any reimbursement of an eligible expense that would be includible in the Executive’s or a survivor’s gross income for federal income tax purposes must be made on or before the end of the Executive’s taxable year following the taxable year on which the expense was incurred; and”
6. The clause “as soon as practicable following the date of termination” in the introductory paragraph of Paragraph 6.02(b) is deleted and replaced with “within 60 days following the date of termination (except as otherwise provided in this Paragraph (b)):”.
7. Paragraph 6.02(b)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus that was earned and deferred or elected to be deferred by the Executive or the Company, unless Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within 60 days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment;”
8. Clause (vii) of Paragraph 6.02(b) is deleted and replaced with the following:
“continuation of medical benefits, if any, for a period of two (2) years, provided however that any reimbursement of an eligible expense that would be includible in the Executive’s or a survivor’s gross income for federal income tax purposes must be made on or before the end of the Executive’s taxable year following the taxable year on which the expense was incurred; and”
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9. Paragraph 6.02(c)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus that was earned and deferred or elected to be deferred by the Executive or the Company, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within 60 days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment.”
10. The following clause is added to the end of the introductory paragraph of Paragraph 6.02(d), before the colon:
“(except as provided otherwise in this Paragraph (d)”.
11. Paragraph 6.02(d)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus earned and deferred or elected to be deferred by the Executive or the Company, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within ten (10) days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment.”
12. The following clause is added at the end of Paragraph 6.02(d)(viii):
“and provided further, that if the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, any coverage or reimbursement under such plan programs and/or arrangements shall be delayed until six (6) months has expired following the Executive’s termination of employment to the extent the coverage and reimbursements are includible in the Executive’s gross income for Federal income tax purposes, unless the coverage and reimbursements, as the case may be, are for payment of medical expenses incurred and paid by the Executive but not reimbursed by a person other than the Company or an affiliate and are allowable as a deduction under Code Section 213 (without regard to the 7.5% of adjusted gross income limitation of Code Section 213(a)) during the period during which the Executive would be entitled to COBRA continuation coverage, if the Executive elected such coverage and paid the applicable premiums)” coverage not be allowed under the Company’s plans, the Company shall pay the Executive a lump sum payment, less contributions, if any, in an amount equal to the amount that the Company would have spent on Executive’s premiums, if any, for such coverage for the same period, with such payment made within ten (10) days following the Executive’s termination of employment; and”.
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13. The following clause is added at the end of the introductory paragraph of Paragraph 6.02(e), before the colon:
“(except as provided otherwise in this Paragraph (e))”.
14. Paragraph 6.02(e)(iii) is deleted and replaced with the following:
“payment for any bonus earned but deferred for any year prior to the year in which occurs the date of the termination of the Executive’s employment, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such payment shall be made within ten (10) days following the end of the six (6) month period that begins on the Executive’s termination of employment.”
IN WITNESS WHEREOF, each of the Company and the Executive has executed this Agreement as of the Effective Date.
| STONEMOR GP, LLC | ||
| By: | /s/ Lawrence Miller | |
|
Name: Lawrence Miller Title: President and Chief Executive Officer |
||
| /s/ William R. Shane | ||
| WILLIAM R. SHANE | ||
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EXHIBIT 10.3
ADDENDUM TO
EMPLOYMENT AGREEMENT
Agreement effective as of January 1, 2008, by and between StoneMor GP, LLC, a Delaware limited liability company (the “Company”), and Robert P. Stache (the “Executive”).
W I T N E S S E T H:
WHEREAS, the Executive and the Company entered into an employment agreement dated September 20, 2004 (the “Employment Agreement”); and
WHEREAS, the Executive and the Company desire to amend the Employment Agreement so in order to avoid adverse tax consequences to the Executive under Section 409A of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties hereto agree to amend the Employment Agreement as follows:
1. Section 3.02 is amended by adding the following sentence at the end thereof:
“Such bonus shall be paid between January 1 and March 15, inclusive, of the calendar year immediately after the calendar year to which it relates, or at such other times as provided under the Company’s bonus plan, provided that such times comply with Section 409A.”
2. The following Paragraph (f) is added to Paragraph 6.01, at the end thereof:
| “f. | Notwithstanding anything in this Agreement to the contrary, to the extent necessary to avoid adverse tax consequences under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code), the Executive’s employment shall not be considered to have terminated earlier than the date on which the Executive has a ‘separation from service’ within the meaning of Section 409A.” |
3. The clause “as soon as practicable following the date of the Executive’s death” in the introductory paragraph of Paragraph 6.02(a) is deleted and replaced with “within 60 days following the date of the Executive’s death (except as otherwise provided in this Paragraph (a).”
4. Clause (vii) of Paragraph 6.02(a) is deleted and replaced with the following:
“continuation of medical benefits for the Executive’s survivors covered by said benefits, if any, for a period of two (2) years, provided however that any reimbursement of an eligible expense that would be includible in the Executive’s or a survivor’s gross income for federal income tax purposes must be made on or before the end of the Executive’s taxable year following the taxable year on which the expense was incurred; and”
5. The clause “as soon as practicable following the date of termination” in the introductory paragraph of Paragraph 6.02(b) is deleted and replaced with “within 60 days following the date of termination (except as otherwise provided in this Paragraph (b)):”.
6. Paragraph 6.02(b)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus that was earned and deferred or elected to be deferred by the Executive or the Company, unless Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within 60 days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment;”
7. Clause (vii) of Paragraph 6.02(b) is deleted and replaced with the following:
“continuation of medical benefits, if any, for a period of two (2) years, provided however that any reimbursement of an eligible expense that would be includible in the Executive’s or a survivor’s gross income for federal income tax purposes must be made on or before the end of the Executive’s taxable year following the taxable year on which the expense was incurred; and”
8. Paragraph 6.02(c)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus that was earned and deferred or elected to be deferred by the Executive or the Company, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within 60 days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment.”
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9. The following clause is added to the end of the introductory paragraph of Paragraph 6.02(d), before the colon:
“(except as provided otherwise in this Paragraph (d)”.
10. Paragraph 6.02(d)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus earned and deferred or elected to be deferred by the Executive or the Company, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within ten (10) days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment.”
11. The following clause is added at the end of Paragraph 6.02(d)(viii):
“and provided further, that if the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, any coverage or reimbursement under such plan programs and/or arrangements shall be delayed until six (6) months has expired following the Executive’s termination of employment to the extent the coverage and reimbursements are includible in the Executive’s gross income for Federal income tax purposes, unless the coverage and reimbursements, as the case may be, are for payment of medical expenses incurred and paid by the Executive but not reimbursed by a person other than the Company or an affiliate and are allowable as a deduction under Code Section 213 (without regard to the 7.5% of adjusted gross income limitation of Code Section 213(a)) during the period during which the Executive would be entitled to COBRA continuation coverage, if the Executive elected such coverage and paid the applicable premiums)” coverage not be allowed under the Company’s plans, the Company shall pay the Executive a lump sum payment, if any, in an amount equal to the amount that the Company would have spent on Executive’s premiums for such coverage for the same period, with such payment made within ten (10) days following the Executive’s termination of employment; and”.
12. The following clause is added at the end of the introductory paragraph of Paragraph 6.02(e), before the colon:
“(except as provided otherwise in this Paragraph (e))”.
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13. Paragraph 6.02(e)(iii) is deleted and replaced with the following:
“payment for any bonus earned but deferred for any year prior to the year in which occurs the date of the termination of the Executive’s employment, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such payment shall be made within ten (10) days following the end of the six (6) month period that begins on the Executive’s termination of employment.”
IN WITNESS WHEREOF, each of the Company and the Executive has executed this Agreement as of the Effective Date.
| STONEMOR GP, LLC | ||
| By: | /s/ Lawrence Miller | |
|
Name: Lawrence Miller Title: President and Chief Executive Officer |
||
| /s/ Robert P. Stache | ||
| ROBERT P. STACHE | ||
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EXHIBIT 10.4
ADDENDUM TO
EMPLOYMENT AGREEMENT
Agreement effective as of January 1, 2008, by and between StoneMor GP, LLC, a Delaware limited liability company (the “Company”), and Michael L. Stache (the “Executive”).
W I T N E S S E T H:
WHEREAS, the Executive and the Company entered into an employment agreement dated September 20, 2004 (the “Employment Agreement”); and
WHEREAS, the Executive and the Company desire to amend the Employment Agreement so in order to avoid adverse tax consequences to the Executive under Section 409A of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties hereto agree to amend the Employment Agreement as follows:
1. Section 3.02 is amended by adding the following sentence at the end thereof:
“Such bonus shall be paid between January 1 and March 15, inclusive, of the calendar year immediately after the calendar year to which it relates, or at such other times as provided under the Company’s bonus plan, provided that such times comply with Section 409A.”
2. The following Paragraph (f) is added to Paragraph 6.01, at the end thereof:
| “f. | Notwithstanding anything in this Agreement to the contrary, to the extent necessary to avoid adverse tax consequences under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code), the Executive’s employment shall not be considered to have terminated earlier than the date on which the Executive has a ‘separation from service’ within the meaning of Section 409A.” |
3. The clause “as soon as practicable following the date of the Executive’s death” in the introductory paragraph of Paragraph 6.02(a) is deleted and replaced with “within 60 days following the date of the Executive’s death (except as otherwise provided in this Paragraph (a).”
4. Clause (vii) of Paragraph 6.02(a) is deleted and replaced with the following:
“continuation of medical benefits for the Executive’s survivors covered by said benefits, if any, for a period of two (2) years, provided however that any reimbursement of an eligible expense that would be includible in the Executive’s or a survivor’s gross income for federal income tax purposes must be made on or before the end of the Executive’s taxable year following the taxable year on which the expense was incurred; and”
5. The clause “as soon as practicable following the date of termination” in the introductory paragraph of Paragraph 6.02(b) is deleted and replaced with “within 60 days following the date of termination (except as otherwise provided in this Paragraph (b)):”.
6. Paragraph 6.02(b)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus that was earned and deferred or elected to be deferred by the Executive or the Company, unless Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within 60 days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment;”
7. Clause (vii) of Paragraph 6.02(b) is deleted and replaced with the following:
“continuation of medical benefits, if any, for a period of two (2) years, provided however that any reimbursement of an eligible expense that would be includible in the Executive’s or a survivor’s gross income for federal income tax purposes must be made on or before the end of the Executive’s taxable year following the taxable year on which the expense was incurred; and”
8. Paragraph 6.02(c)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus that was earned and deferred or elected to be deferred by the Executive or the Company, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within 60 days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment.”
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9. The following clause is added to the end of the introductory paragraph of Paragraph 6.02(d), before the colon:
“(except as provided otherwise in this Paragraph (d)”.
10. Paragraph 6.02(d)(iii) is deleted and replaced with the following:
“payment of any unpaid bonus earned and deferred or elected to be deferred by the Executive or the Company, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such amount shall be paid within ten (10) days following the end of the six (6) month period that begins on the date of the Executive’s termination of employment.”
11. The following clause is added at the end of Paragraph 6.02(d)(viii):
“and provided further, that if the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, any coverage or reimbursement under such plan programs and/or arrangements shall be delayed until six (6) months has expired following the Executive’s termination of employment to the extent the coverage and reimbursements are includible in the Executive’s gross income for Federal income tax purposes, unless the coverage and reimbursements, as the case may be, are for payment of medical expenses incurred and paid by the Executive but not reimbursed by a person other than the Company or an affiliate and are allowable as a deduction under Code Section 213 (without regard to the 7.5% of adjusted gross income limitation of Code Section 213(a)) during the period during which the Executive would be entitled to COBRA continuation coverage, if the Executive elected such coverage and paid the applicable premiums)” coverage not be allowed under the Company’s plans, the Company shall pay the Executive a lump sum payment, if any, in an amount equal to the amount that the Company would have spent on Executive’s premiums for such coverage for the same period, with such payment made within ten (10) days following the Executive’s termination of employment; and”.
12. The following clause is added at the end of the introductory paragraph of Paragraph 6.02(e), before the colon:
“(except as provided otherwise in this Paragraph (e))”.
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13. Paragraph 6.02(e)(iii) is deleted and replaced with the following:
“payment for any bonus earned but deferred for any year prior to the year in which occurs the date of the termination of the Executive’s employment, unless the Executive is a ‘specified employee’ (within the meaning of Section 409A of the Code and pursuant to the methodology adopted by the Company) as of his termination of employment, in which case such payment shall be made within ten (10) days following the end of the six (6) month period that begins on the Executive’s termination of employment.”
IN WITNESS WHEREOF, each of the Company and the Executive has executed this Agreement as of the Effective Date.
| STONEMOR GP, LLC | ||
| By: | /s/ Lawrence Miller | |
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Name: Lawrence Miller Title: President and Chief Executive Officer |
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| /s/ Michael L. Stache | ||
| MICHAEL L. STACHE | ||
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