| Indiana | 26-1342272 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No) | |
| One Batesville Boulevard | ||
| Batesville, IN | 47006 | |
| (Address of principal executive offices) | (Zip Code) |
| Yes þ | No o |
| Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o |
| Yes o | No þ |
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| Exhibit 3.1 | ||||||||
| Exhibit 3.2 | ||||||||
| Exhibit 10.1 | ||||||||
| Exhibit 31.1 | ||||||||
| Exhibit 31.2 | ||||||||
| Exhibit 32.1 | ||||||||
| Exhibit 32.2 | ||||||||
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
(Amounts in millions, except per share data)
Three Months Ended
Nine Months Ended
June 30
June 30
2008
2007
2008
2007
$
165.0
$
165.6
$
519.3
$
509.0
98.6
98.7
302.8
293.3
66.4
66.9
216.5
215.7
28.4
34.1
99.2
89.0
38.0
32.8
117.3
126.7
(1.4
)
—
(1.4
)
—
4.4
1.0
3.9
1.0
41.0
33.8
119.8
127.7
14.3
12.3
45.8
46.8
$
26.7
$
21.5
$
74.0
$
80.9
$
0.42
$
0.34
$
1.18
$
1.29
$
0.1825
$
—
$
0.1825
$
—
62.5
62.5
62.5
62.5
Table of Contents
(Dollars in millions)
June 30
September 30
2008
2007
$
33.0
$
11.9
85.6
90.9
50.3
47.5
18.8
16.0
0.6
0.3
8.5
3.6
196.8
170.2
91.2
88.9
20.7
23.0
52.7
—
153.4
—
—
1.6
10.9
16.2
9.1
—
31.6
16.7
$
566.4
$
316.6
$
110.0
$
—
14.1
18.3
24.4
20.6
18.3
20.3
19.4
16.6
9.1
—
195.3
75.8
7.3
8.6
37.8
28.1
41.0
23.2
281.4
135.7
—
193.5
—
—
284.3
—
15.2
—
(14.5
)
(12.6
)
285.0
180.9
$
566.4
$
316.6
Table of Contents
(Dollars in millions)
Nine Months Ended
June 30
2008
2007
$
74.0
$
80.9
14.1
13.2
1.0
(4.7
)
(0.1
)
1.0
(2.8
)
—
(0.4
)
—
0.5
—
5.2
4.6
(2.9
)
(3.0
)
(3.8
)
2.8
(4.2
)
1.4
8.0
(2.5
)
13.6
4.0
(11.1
)
—
(1.3
)
(1.4
)
(0.5
)
0.7
1.5
2.9
90.8
99.9
(6.1
)
(9.9
)
0.3
1.0
(0.4
)
(5.2
)
2.7
—
0.6
—
(2.9
)
(14.1
)
250.0
—
(140.0
)
—
(0.9
)
—
(290.3
)
(85.0
)
125.4
—
(11.4
)
—
0.4
—
(66.8
)
(85.0
)
—
0.2
21.1
1.0
11.9
7.9
$
33.0
$
8.9
Table of Contents
1.
•
•
•
•
•
•
•
•
•
Table of Contents
2.
Table of Contents
Table of Contents
The adoption of FIN 48, which was reflected as a cumulative effect of a change in
accounting principle, resulted in a decrease to beginning parent company equity at
October 1, 2007, of $1.8 million. The total amount of unrecognized tax benefits at that
date was $7.4 million, which included $3.7 million that, if recognized, would impact the
effective tax rate in future periods. The remaining amount relates to items which, if
recognized, would not impact our effective tax rate.
We account for accrued interest and penalties related to unrecognized tax benefits in
income tax expense. Accrued interest and penalties at October 1, 2007, were $0.2 million.
As noted above, for periods prior to the Distribution, Hill-Rom has filed or will file
consolidated federal income tax returns, as well as multiple state and local tax returns
that included our operating results. Our foreign operations file income tax returns in a
number of jurisdictions.
Table of Contents
Table of Contents
3.
June 30
September 30
2008
2007
$
15.6
$
18.0
$
11.2
$
10.3
39.1
37.2
$
50.3
$
47.5
$
226.7
$
215.4
$
20.6
$
18.3
1,000,000
None
None
None
199,000,000
None
62,432,919
None
62,432,919
None
4.
Table of Contents
5.
Three Months Ended
Nine Months Ended
June 30
June 30
2008
2007
2008
2007
$
—
$
3.8
$
7.4
$
10.0
•
•
•
•
Table of Contents
•
•
•
•
Table of Contents
•
•
•
•
•
•
Table of Contents
Table of Contents
6.
Table of Contents
6.75
%
6.5
%
8.0
%
4.0
%
6.75
%
6.25
%
6.75
%
Three Months Ended
Nine Months Ended
June 30
June 30
2008
2007
2008
2007
$
0.9
$
1.1
$
3.1
$
3.2
3.1
2.4
8.2
7.2
(3.3
)
(3.1
)
(9.1
)
(9.1
)
0.2
0.3
0.5
0.9
—
0.1
—
0.1
$
0.9
$
0.8
$
2.7
$
2.3
7.
8.
Table of Contents
9.
Accumulated
Additional
Other
Parent
Common Stock
Paid-in
Retained
Comprehensive
Company
Shares
Amount
Capital
Earnings
Loss
Investment
Total
—
$
—
$
—
$
—
$
(12.6
)
$
193.5
$
180.9
—
—
—
—
—
(1.8
)
(1.8
)
—
—
—
—
—
(290.3
)
(290.3
)
—
—
—
—
(5.4
)
—
(5.4
)
—
—
—
—
1.1
—
1.1
—
—
—
—
0.1
—
0.1
—
—
—
—
—
47.3
47.3
—
—
—
—
3.3
334.6
337.9
62.4
—
283.3
—
—
(283.3
)
—
—
—
—
—
(1.0
)
—
(1.0
)
—
—
0.4
—
—
—
0.4
—
—
0.5
—
—
—
0.5
—
—
—
26.7
—
—
26.7
—
—
0.1
(11.5
)
—
—
(11.4
)
62.4
$
—
$
284.3
$
15.2
$
(14.5
)
$
—
$
285.0
10.
Table of Contents
Weighted
Average
Number
Exercise
Options in Hill-Rom Holdings, Inc. common stock
of Shares
Price
692,422
$
51.81
165,360
53.86
(17,767
)
52.11
(90,300
)
46.46
(749,715
)
52.81
—
$
—
Weighted
Average
Number
Exercise
Options in Hillenbrand, Inc. common stock
of Shares
Price
—
$
—
1,631,389
24.27
485,349
22.93
515,139
21.12
(30,000
)
16.69
(658,115
)
22.67
1,943,762
$
23.76
1,192,043
$
23.46
Table of Contents
Weighted
Average
Number of
Grant Date
Restricted Stock Units in Hill-Rom Holdings, Inc. common stock
Share Units
Fair Value
134,756
55.01
40,400
53.91
(120,225
)
54.69
(14,531
)
50.25
(40,400
)
53.91
—
$
—
Weighted
Average
Number of
Grant Date
Restricted Stock Units in Hillenbrand, Inc. common stock
Share Units
Fair Value
—
$
—
87,911
24.74
54,213
19.77
(3,600
)
18.62
(544
)
24.84
137,980
$
22.95
Table of Contents
11.
Table of Contents
Table of Contents
12.
Table of Contents
13.
Three Months Ended
Nine Months Ended
June 30
June 30
2008
2007
2008
2007
$
26.7
$
21.5
$
74.0
$
80.9
0.5
0.1
1.1
0.6
(1.0
)
—
(1.0
)
—
—
—
0.1
—
0.3
—
(5.4
)
—
$
26.5
$
21.6
$
68.8
$
81.5
14.
Three Months Ended
Nine Months Ended
June 30
June 30
2008
2007
2008
2007
$
3.9
$
0.3
$
4.4
$
0.8
0.4
—
0.4
—
0.1
0.9
(0.9
)
0.1
—
(0.2
)
—
0.1
$
4.4
$
1.0
$
3.9
$
1.0
Table of Contents
Item 2.
believe
plan
expect
may
goal
pursue
estimate
will
forecast
continue
increase
higher/lower
improve
progress
potential
Table of Contents
•
•
•
•
•
•
Table of Contents
•
•
(Dollars in millions)
Three Months
Three Months
Ended
Ended
June 30
% of
June 30
% of
2008
Revenues
2007
Revenues
$
165.0
100.0
$
165.6
100.0
98.6
59.8
98.7
59.6
66.4
40.2
66.9
40.4
28.3
17.2
34.1
20.6
0.1
—
—
—
38.0
23.0
32.8
19.8
(1.4
)
(0.8
)
—
—
4.4
2.7
1.0
0.6
41.0
24.9
33.8
20.4
14.3
8.7
12.3
7.4
$
26.7
16.2
$
21.5
13.0
Table of Contents
(Dollars in millions)
Nine Months
Nine Months
Ended
Ended
June 30
% of
June 30
% of
2008
Revenues
2007
Revenues
$
519.3
100.0
$
509.0
100.0
302.8
58.3
293.3
57.6
216.5
41.7
215.7
42.4
85.0
16.4
89.0
17.5
14.2
2.7
—
—
117.3
22.6
126.7
24.9
(1.4
)
(0.3
)
—
—
3.9
0.8
1.0
0.2
119.8
23.1
127.7
25.1
45.8
8.9
46.8
9.2
$
74.0
14.2
$
80.9
15.9
Table of Contents
Table of Contents
(Dollars in millions)
Nine Months Ended
June 30
2008
2007
$
90.8
$
99.9
(2.9
)
(14.1
)
(66.8
)
(85.0
)
—
0.2
$
21.1
$
1.0
•
•
Table of Contents
Table of Contents
•
•
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
37
Table of Contents
38
39
HILLENBRAND, INC.
BY:
/S/ Cynthia L. Lucchese
Senior Vice President and
Chief Financial Officer
BY:
/S/ Theodore S. Haddad, Jr.
Chief Accounting Officer
Table of Contents
Restated and Amended Articles of Incorporation of Hillenbrand, Inc.,
effective March 31, 2008
Articles of Correction of the Restated and Amended Articles of Incorporation
of Hillenbrand, Inc., effective March 31, 2008
Employment Agreement dated as of June 15, 2008, between Hillenbrand, Inc.
and Joe A. Raver
Form of Change in Control Agreement between Hillenbrand, Inc. and certain of
its executive officers, including Joe A. Raver, (Incorporated by reference to Exhibit
10.9 to Registration Statement on Form 10)
Certification of Chief Executive Officer Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
Certification of Chief Financial Officer Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350,
as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350,
as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
*
|
Total number of shares entitled to vote with respect to the Amendment:
|
100 | |||
|
Total number of shares voted in favor
|
100 | |||
|
Total number of shares voted against
|
0 |
|
Batesville Holdings, Inc.
To be known as Hillenbrand, Inc. after the Effectiveness of this Amendment |
||||
| By: | /S/ John R. Zerkle | |||
| John R. Zerkle, | ||||
| its Senior Vice-President, General Counsel and Secretary | ||||
2
3
4
5
6
7
8
9
10
|
Hillenbrand, Inc.
|
||||
| By: | /S/ John R. Zerkle | |||
| John R. Zerkle, | ||||
| its Senior Vice-President, General Counsel and Secretary | ||||
| 1. |
Employment
. As of the effective date of this Agreement, the Company agrees to employ
Employee and Employee agrees to serve (a) as the President and Chief Operating Officer of
Batesville Casket Company, Inc. and of such other of the Company’s operating subsidiaries as
shall be determined by the Company from time to time, and (b) in such other offices and
positions in the Company and other Companies as the Company and Employee shall from time to
time mutually agree. Employee agrees to perform all duties and responsibilities traditionally
assigned to, or falling within the normal responsibilities of, an individual employed in the
above-referenced positions. Employee also agrees to perform any and all additional duties or
responsibilities as may be assigned by the Company in its sole discretion. The Parties
acknowledge that both Employee’s title and the underlying duties may change.
|
|
| 2. |
Best Efforts and Duty of Loyalty
. During the term of employment with the Company,
Employee covenants and agrees to exercise reasonable efforts to perform all assigned duties in
a diligent and professional manner and in the best interest of the Company. Employee agrees
to devote Employee’s full working time, attention, talents, skills and best efforts to further
the Company’s business and agrees not to take any action, or make any omission, that deprives
the Company of any business opportunities or otherwise act in a manner that conflicts with the
best interest of the Company or is otherwise detrimental to its business. Employee agrees not
to engage in any outside business activity, whether or not pursued for gain, profit or other
pecuniary advantage, without the express written consent of the Company. Employee shall act
at all times in accordance with the Company’s Code of Ethical Business Conduct, and all other
applicable policies which may exist or be adopted by the Company from time to time.
|
|
| 3. |
At-Will Employment
. Subject to the terms and conditions set forth below, Employee
specifically acknowledges and accepts such employment on an “at-will” basis and agrees that
both Employee and the Company retain the right to terminate this relationship at any time,
with or without cause, for any reason not prohibited by applicable law upon notice as required
by this Agreement. Employee acknowledges that nothing in this Agreement is intended to
create, nor should be interpreted to create, an employment contract for any specified length
of time between the Company and Employee.
|
|
| 4. |
Compensation
. For all services rendered by Employee on behalf of, or at the request
of, the Company, Employee shall be paid as follows:
|
| (a) |
A base salary at the bi-weekly rate of Fifteen Thousand Three Hundred Eighty-Four
Dollars and Sixty-One Cents ($15,384.61), less usual and ordinary deductions;
|
||
| (b) |
The other compensation and benefits described in (and subject to the terms of) the
attached offer of employment letter to Employee dated June
_____
, 2008, from Kenneth A. Camp,
as Chief Executive Officer of Hillenbrand, Inc., subject, however, to the terms of this
Agreement;
|
||
| (c) |
Incentive compensation, payable solely at the discretion of the Company, pursuant to
the Company’s existing Incentive Compensation Program or any other program as the Company
may establish in its sole discretion; and
|
2
| (d) |
Such additional compensation, benefits and perquisites as the Company may deem
appropriate.
|
| 5. |
Changes to Compensation
. Notwithstanding anything contained herein to the contrary,
Employee acknowledges that the Company specifically reserves the right to make changes to
Employee’s compensation in its sole discretion including, but not limited to, modifying or
eliminating a compensation component. The Parties agree that such changes shall be deemed
effective immediately and a modification of this Agreement unless, within seven (7) days after
receiving notice of such change, Employee exercises Employee’s right to terminate this
Agreement without cause or for “Good Reason” as provided below in Paragraph No. 11. The
Parties anticipate that Employee’s compensation structure will be reviewed on an annual basis
but acknowledge that the Company shall have no obligation to do so.
|
|
| 6. |
Direct Deposit
. As a condition of employment, and within thirty (30) days of the
effective date of this Agreement, Employee agrees to make all necessary arrangements to have
all sums paid pursuant to this Agreement direct deposited into one or more bank accounts as
designated by Employee.
|
|
| 7. |
Warranties and Indemnification
. Employee warrants that Employee is not a party to
any contract, restrictive covenant, or other agreement purporting to limit or otherwise
adversely affecting Employee’s ability to secure employment with the Company or any other
potential employer. Alternatively, should any such agreement exist, Employee warrants that
the existence thereof has been disclosed to the Company and that the contemplated services to
be performed hereunder will not violate the terms and conditions of any such agreement. In
either event, Employee agrees to fully indemnify and hold the Company harmless from any and
all claims arising from, or involving the enforcement of, any such restrictive covenants or
other agreements.
|
|
| 8. |
Restricted Duties
. Employee agrees not to disclose, or use for the benefit of the
Company, any confidential or proprietary information belonging to any predecessor employer(s)
that otherwise has not been made public and further acknowledges that the Company has
specifically instructed Employee not to disclose or use such confidential or proprietary
information. Based on Employee’s understanding of the anticipated duties and responsibilities
hereunder, Employee acknowledges that such duties and responsibilities will not compel the
disclosure or use of any such confidential and proprietary information.
|
|
| 9. |
Termination Without Cause
. The Parties agree that either Party may terminate this
employment relationship at any time, without cause, upon sixty (60) days’ advance written
notice or, if terminated by the Company, pay in lieu of notice (hereinafter referred to as
“notice pay”) if the Company so elects. In such event, Employee shall only be entitled to
such compensation, benefits and perquisites that have been paid or fully accrued as of the
effective date of Employee’s separation and as otherwise explicitly set forth in this
Agreement. However, in no event shall Employee be entitled to notice pay if Employee is
eligible for and accepts severance payments pursuant to the provisions of Paragraphs 16 and
17, below.
|
3
| 10. |
Termination With Cause
. Employee’s employment may be terminated by the Company at
any time “for cause” without notice or prior warning. For purposes of this Agreement, “cause”
shall mean the Company’s good faith determination that Employee has:
|
| (a) |
Acted with gross neglect or willful misconduct in the discharge of Employee duties and
responsibilities or refused to follow or comply with the lawful direction of the Company or
the terms and conditions of this Agreement, providing such refusal is not based primarily
on Employee’s good faith compliance with applicable legal or ethical standards;
|
||
| (b) |
Acquiesced or participated in any conduct that is dishonest, fraudulent, illegal (at
the felony level), unethical, involves moral turpitude or is otherwise illegal and involves
conduct that has the potential, in the Company’s reasonable opinion, to cause the Company
or any of the Companies and/or their officers or directors embarrassment or ridicule;
|
||
| (c) |
Violated a material requirement of any Company policy or procedure, specifically
including a violation of the Company’s Code of Ethics or Associate Policy Manual;
|
||
| (d) |
Disclosed without proper authorization any trade secrets or other Confidential
Information (as defined herein);
|
||
| (e) |
Engaged in any act that, in the reasonable opinion of the Company, is contrary to the
best interests of any of the Companies or would hold any of them or their officers or
directors up to probable civil or criminal liability, provided that, if Employee acts in
good faith in compliance with applicable legal or ethical standards, such actions shall not
be grounds for termination for cause; or
|
||
| (f) |
Engaged in such other conduct recognized at law as constituting cause.
|
|
Upon the occurrence or discovery of any event specified above, the Company shall have the right
to terminate Employee’s employment, effective immediately, by providing notice thereof to
Employee without further obligation to Employee other than accrued wages or other accrued wages,
deferred compensation or other accrued benefits of employment (collectively referred to herein
as “Accrued Obligations”), which shall be paid in accordance with the Company’s past practice
and applicable law. To the extent any violation of this Paragraph is capable of being promptly
cured by Employee (or cured within a reasonable period to the Company’s satisfaction), the
Company agrees to provide Employee with a reasonable opportunity to so cure such defect. Absent
written mutual agreement otherwise, the Parties agree in advance that it is not possible for
Employee to cure any violations of sub-paragraph (b) or (d) and, therefore, no opportunity for
cure need be provided in those circumstances.
|
4
| 11. |
Termination by Employee for Good Reason
. Employee may terminate this Agreement and
declare this Agreement to have been terminated “without cause” by the Company (and, therefore,
for “Good Reason”) upon the occurrence, without Employee’s consent, of any of the following
circumstances:
|
| (a) |
The assignment to Employee of duties lasting more than sixty (60) days that are
materially inconsistent with Employee’s then current position or a material change in
Employee’s reporting relationship;
|
||
| (b) |
The failure to elect or reelect Employee as President and Chief Operating Officer of
Batesville Casket Company, Inc. (unless such failure is related in any way to the Company’s
decision to terminate Employee for cause);
|
||
| (c) |
The failure of the Company to continue to provide Employee with office space, related
facilities and support personnel (including, but not limited to, administrative and
secretarial assistance) within the Company’s principal executive offices commensurate with
his responsibilities to, and position within, the Company;
|
||
| (d) |
A reduction by the Company in the amount of Employee’s base salary or the
discontinuation or reduction by the Company of Employee’s participation at the same level
of eligibility as compared to other peer employees in any incentive compensation,
additional compensation, benefits, policies or perquisites subject to Employee
understanding that such reduction(s) shall be permissible if the change applies in a
similar way to other peer level employees;
|
||
| (e) |
The relocation of the Company’s principal executive offices or Employee’s place of work
to a location requiring a change of more than fifty (50) miles in Employee’s daily commute;
or
|
||
| (f) |
A failure by the Company to perform its obligations under this Employment Agreement
that is not cured by the Company promptly after written notice of such failure is given to
the Company by Employee.
|
| 12. |
Termination Due to Death or Disability
. In the event Employee dies or suffers a
disability (as defined herein) during the term of employment, this Agreement shall
automatically be terminated on the date of such death or disability without further obligation
on the part of the Company other than the payment of Accrued Obligations. For purposes of
this Agreement, Employee shall be considered to have suffered a “disability” upon a
determination by the Company, or an admission by Employee, that Employee cannot perform the
essential functions of Employee’s position as a result of a such a disability and the
occurrence of one or more of the following events:
|
| (a) |
Employee becomes eligible for or receives any benefits pursuant to any disability
insurance policy as a result of a determination under such policy that Employee is
permanently disabled;
|
||
| (b) |
Employee becomes eligible for or receives any disability benefits under the Social
Security Act; or
|
||
| (c) |
A good faith determination by the Company that Employee is and will likely remain
unable to perform the essential functions of Employee’s duties or responsibilities
hereunder on a full-time basis, with or without reasonable accommodation, as a result of
any mental or physical impairment.
|
5
|
Notwithstanding anything expressed or implied above to the contrary, the Company agrees to fully
comply with its obligations under the Family and Medical Leave Act of 1993 and the Americans
with Disabilities Act as well as any other applicable federal, state, or local law, regulation,
or ordinance governing the provision of leave to individuals with serious health conditions or
the protection of individuals with disabilities as well as the Company’s obligation to provide
reasonable accommodation thereunder.
|
||
| 13. |
Exit Interview
. Upon termination of Employee’s employment for any reason, Employee
agrees, if requested, to participate in an exit interview with the Company and reaffirm in
writing Employee’s post-employment obligations as set forth in this Agreement
|
|
| 14. |
Section 409A Notification
. Employee acknowledges that Employee has been advised of
the American Jobs Creation Act of 2004, which added Section 409A to the Internal Revenue Code
(“Section 409A”), and significantly changed the taxation of nonqualified deferred compensation
plans and arrangements. Under proposed and final regulations as of the date of this
Agreement, Employee has been advised that Employee’s severance pay and other termination
benefits may be treated by the Internal Revenue Service as providing “nonqualified deferred
compensation,” and therefore subject to Section 409A. In that event, several provisions in
Section 409A may affect Employee’s receipt of severance compensation, including the timing
thereof. These include, but are not limited to, a provision which requires that distributions
to “specified employees” of public companies on account of separation from service may not be
made earlier than six (6) months after the effective date of such separation. If applicable,
failure to comply with Section 409A can lead to immediate taxation of such deferrals, with
interest calculated at a penalty rate and a 20% penalty. As a result of the requirements
imposed by the American Jobs Creation Act of 2004, Employee agrees that if Employee is a
“specified employee” at the time of Employee’s termination of employment and if payments in
connection with such termination of employment are subject to Section 409A and not otherwise
exempt, such payments (and other benefits to the extent applicable) due Employee at the time
of termination of employment shall not be paid until a date at least six (6) months after the
effective date of Employee’s termination of employment (“Employee’s Effective Termination
Date”). Notwithstanding any provision of this Agreement to the contrary, to the extent that
any payment under the terms of this Agreement would constitute an impermissible acceleration
of payments under Section 409A or any regulations or Treasury guidance promulgated thereunder,
such payments shall be made no earlier than at such times as allowed under Section 409A. If
any provision of this Agreement (or of any award of compensation) would cause Employee to
incur any additional tax or interest under Section 409A or any regulations or Treasury
guidance promulgated thereunder, the Company or its successor may reform such provision;
provided that it will (i) maintain, to the maximum extent practicable, the original intent of
the applicable provision without violating the provisions of Section 409A and (ii) notify and
consult with Employee regarding such amendments or modifications prior to the effective date
of any such change.
|
|
| 15. |
Section 409A Acknowledgement
. Employee acknowledges that, notwithstanding anything
contained herein to the contrary, both Parties shall be independently responsible for
assessing their own risks and liabilities under Section 409A that may be associated with any
payment made under the terms of this Agreement or any other arrangement which may be deemed to
trigger Section 409A. Further, the Parties agree that each shall independently bear
responsibility for any and all taxes, penalties or other tax obligations as may be imposed upon
them in their individual capacity as a matter of law.
|
6
|
To the extent applicable, Employee
understands and agrees that Employee shall have the responsibility for, and Employee agrees to
pay, any and all appropriate income tax or other tax obligations for which Employee is
individually responsible and/or related to receipt of any compensation or benefits provided in
this Agreement. Employee agrees to fully indemnify and hold the Company harmless for any taxes,
penalties, interest, cost or attorneys’ fee assessed against or incurred by the Company on
account of such compensation or benefits having been provided to Employee or based on any
alleged failure to withhold taxes or satisfy any claimed obligation. Employee understands and
acknowledges that neither the Company, nor any of its employees, attorneys, or other
representatives has provided or will provide Employee with any legal or financial advice
concerning taxes or any other matter, and that Employee has not relied on any such advice in
deciding whether to enter into this Agreement.
|
||
| 16. |
Severance
. In the event Employee’s employment is terminated by the Company without
cause (including by Employee for Good Reason), and subject to the normal terms and conditions
imposed by the Company as set forth herein and in the attached Separation and Release
Agreement, Employee shall be eligible to receive severance pay based upon Employee’s base
salary at the time of termination for a period determined in accordance with any guidelines as
may be established by the Company or for a period up to twelve (12) months (whichever is
longer).
|
|
| 17. |
Severance Payment Terms and Conditions
. No severance pay shall be paid if Employee
voluntarily leaves the Company’s employ without “Good Reason” (as defined above) or is
terminated for cause. Any severance pay made payable under this Agreement shall be paid in
lieu of, and not in addition to, any other contractual, notice or statutory pay or other
accrued compensation obligation (excluding accrued wages and deferred compensation).
Additionally, such severance pay is contingent upon Employee fully complying with the
restrictive covenants contained herein and executing a Separation and Release Agreement in a
form not substantially different from that attached as Exhibit A. Further, the Company’s
obligation to provide severance hereunder shall be deemed null and void should Employee fail
or refuse to execute and deliver to the Company the Company’s then-standard Separation and
Release Agreement (without modification) within any time period as may be prescribed by law
or, in absence thereof, twenty-one (21) days after the Employee’s Effective Termination Date.
Conditioned upon the execution and delivery of the Separation and Release Agreement as set
forth in the prior sentence, severance pay benefits shall be paid as follows: (i) in one lump
sum equivalent to six (6) months’ base salary on the day following the date which is six (6)
months following Employee’s Effective Termination Date with any remainder to be paid in
bi-weekly installments equivalent to Employee’s bi-weekly base salary commencing on the next
regularly scheduled payroll date, if both the severance pay benefit is subject to Section 409A
and if Employee is a “specified employee” under Section 409A or (ii) for any severance pay
benefits not subject to clause (i), in bi-weekly installments equivalent to Employee’s
bi-weekly base salary commencing upon the next regularly scheduled payroll date following the
earlier to occur of fifteen (15) days from the Company’s receipt of an executed Separation and
Release Agreement or the expiration of sixty (60) days after Employee’s Effective Termination
Date and shall be paid on the Company’s regularly scheduled pay dates; provided, however, that
if the before-stated sixty (60) day period ends
in a calendar year following the calendar year in which the sixty (60) day period commenced,
then any benefits not subject to clause (i) shall only begin on the next regularly scheduled
payroll following the expiration of sixty (60) days after the Employee’s Effective Termination
Date. Excluding any lump sum payment due as a result of the application of Section 409A (which
shall be paid regardless of reemployment), all other severance payments provided hereunder shall
terminate upon reemployment.
|
7
| 18. |
Assignment of Rights
.
|
| (a) |
Copyrights
. Employee agrees that all works of authorship fixed in any tangible
medium of expression by Employee during the term of this Agreement relating to the
Company’s business (“Works”), either solely or jointly with others, shall be and remain
exclusively the property of the Company. Each such Work created by Employee is a “work
made for hire” under the copyright law and the Company may file applications to register
copyright in such Works as author and copyright owner thereof. If, for any reason, a Work
created by Employee is excluded from the definition of a “work made for hire” under the
copyright law, then Employee does hereby assign, sell, and convey to the Company the entire
rights, title, and interests in and to such Work, including the copyright therein, to the
Company. Employee will execute any documents that the Company deems necessary in
connection with the assignment of such Work and copyright therein. Employee will take
whatever steps and do whatever acts the Company requests, including, but not limited to,
placement of the Company’s proper copyright notice on Works created by Employee to secure
or aid in securing copyright protection in such Works and will assist the Company or its
nominees in filing applications to register claims of copyright in such Works. The Company
shall have free and unlimited access at all times to all Works and all copies thereof and
shall have the right to claim and take possession on demand of such Works and copies.
|
||
| (b) |
Inventions
. Employee agrees that all discoveries, concepts, and ideas, whether
patentable or not, including, but not limited to, apparatus, processes, methods,
compositions of matter, techniques, and formulae, as well as improvements thereof or
know-how related thereto, relating to any present or prospective product, process, or
service of the Company (“Inventions”) that Employee conceives or makes during the term of
this Agreement relating to the Company’s business, shall become and remain the exclusive
property of the Company, whether patentable or not, and Employee will, without royalty or
any other consideration:
|
| (i) |
Inform the Company promptly and fully of such Inventions by written reports,
setting forth in detail the procedures employed and the results achieved;
|
||
| (ii) |
Assign to the Company all of Employee’s rights, title, and interests in and to
such Inventions, any applications for United States and foreign Letters Patent, any
United States and foreign Letters Patent, and any renewals thereof granted upon such
Inventions;
|
8
| (iii) |
Assist the Company or its nominees, at the expense of the Company, to obtain
such United States and foreign Letters Patent for such Inventions as the Company may
elect; and
|
||
| (iv) |
Execute, acknowledge, and deliver to the Company at the Company’s expense such
written documents and instruments, and do such other acts, such as giving testimony in
support of Employee’s inventorship, as may be necessary in the opinion of the Company,
to obtain and maintain United States and foreign Letters Patent upon such Inventions
and to vest the entire rights and title thereto in the Company and to confirm the
complete ownership by the Company of such Inventions, patent applications, and patents.
|
| 19. |
Company Property
. All records, files, drawings, documents, data in whatever form,
business equipment (including computers, PDAs, cell phones, etc.), and the like relating to,
or provided by, the Company shall be and remain the sole property of the Company. Upon
termination of employment, Employee shall immediately return to the Company all such items
without retention of any copies and without additional request by the Company. De minimis
items such as pay stubs, 401(k) plan summaries, employee bulletins, and the like are excluded
from this requirement.
|
|
| 20. |
Confidential Information
. Employee acknowledges that the Company and its affiliated
entities (herein collectively referred to as “Companies”) possess certain trade secrets as
well as other confidential and proprietary information which they have acquired or will
acquire at great effort and expense. Such information may include, without limitation,
confidential information, whether in tangible or intangible form, regarding the Companies’
products and services, marketing strategies, business plans, operations, costs, current or
prospective customer information (including customer identities, contacts, requirements,
creditworthiness, preferences, and like matters), product concepts, designs, prototypes or
specifications, research and development efforts, technical data and know-how, sales
information, including pricing and other terms and conditions of sale, financial information,
internal procedures, techniques, forecasts, methods, trade information, trade secrets,
software programs, project requirements, inventions, trademarks, trade names, and similar
information regarding the Companies’ business(es) (collectively referred to herein as
“Confidential Information”). Employee further acknowledges that, as a result of Employee’s
employment with the Company, Employee will have access to, will become acquainted with, and/or
may help develop, such Confidential Information. Confidential Information shall not include
information readily available in the public so long as such information was not made available
through fault of Employee or wrong doing by any other individual.
|
|
| 21. |
Restricted Use of Confidential Information
. Employee agrees that all Confidential
Information is and shall remain the sole and exclusive property of the Company and/or its
affiliated entities. Except as may be expressly authorized by the Company in writing,
Employee agrees not to disclose, or cause any other person or entity to disclose, any
Confidential Information to any third party while employed by the Company and for as long
thereafter as such information remains confidential (or as limited by applicable law).
Further, Employee agrees to use such Confidential Information only in the course of Employee’s
duties in furtherance of the Company’s business and agrees not to make use of
any such Confidential Information for Employee’s own purposes or for the benefit of any other
entity or person.
|
9
| 22. |
Acknowledged Need for Limited Restrictive Covenants
. Employee acknowledges that the
Companies have spent and will continue to expend substantial amounts of time, money and effort
to develop their business strategies, Confidential Information, customer identities and
relationships, goodwill and employee relationships, and that Employee will benefit from these
efforts. Further, Employee acknowledges the inevitable use of, or near-certain influence by
Employee’s knowledge of, the Confidential Information disclosed to Employee during the course
of employment if allowed to compete against the Company in an unrestricted manner and that
such use would be unfair and extremely detrimental to the Company. Accordingly, based on
these legitimate business reasons, Employee acknowledges each of the Companies’ need to
protect their legitimate business interests by reasonably restricting Employee’s ability to
compete with the Company on a limited basis.
|
| 23. |
Non-Solicitation
. During Employee’s employment and for a period of twenty-four (24)
months thereafter, Employee agrees not to directly or indirectly engage in the following
prohibited conduct:
|
| (a) |
Solicit, offer products or services to, or accept orders for, any Competitive Products
or otherwise transact any competitive business with, any customer or entity with whom
Employee had contact or transacted any business on behalf of the Company (or any Affiliate
thereof) during the eighteen (18) month period preceding Employee’s date of separation or
about whom Employee possessed, or had access to, confidential and proprietary information;
|
||
| (b) |
Attempt to entice or otherwise cause any third party to withdraw, curtail or cease
doing business with the Company (or any Affiliate thereof), specifically including
customers, vendors, independent contractors and other third party entities;
|
||
| (c) |
Disclose to any person or entity the identities, contacts or preferences of any
customers of the Company (or any Affiliate thereof), or the identity of any other persons
or entities having business dealings with the Company (or any Affiliate thereof);
|
||
| (d) |
Induce any individual who has been employed by or had provided services to the Company
(or any Affiliate thereof) within the six (6) month period immediately preceding the
effective date of Employee’s separation to terminate such relationship with the Company (or
any Affiliate thereof);
|
||
| (e) |
Assist, coordinate or otherwise offer employment to, accept employment inquiries from,
or employ any individual who is or had been employed by the Company (or any Affiliate
thereof) at any time within the six (6) month period immediately preceding such offer, or
inquiry;
|
||
| (f) |
Communicate or indicate in any way to any customer of the Company (or any Affiliate
thereof), prior to formal separation from the Company, any interest, desire, plan, or
decision to separate from the Company; or
|
10
| (g) |
Otherwise attempt to directly or indirectly interfere with the Company’s business, the
business of any of the Companies or their relationship with their employees, consultants,
independent contractors or customers.
|
| 24. |
Limited Non-Compete
. For the above-stated reasons, and as a condition of employment
to the fullest extent permitted by law, Employee agrees during the Relevant Non-Compete Period
not to directly or indirectly engage in the following competitive activities:
|
| (a) |
Employee shall not have any ownership interest in, work for, advise, consult, or have
any business connection or business or employment relationship in any competitive capacity
with any Competitor unless Employee provides written notice to the Company of such
relationship prior to entering into such relationship and, further, provides sufficient
written assurances to the Company’s satisfaction that such relationship will not,
jeopardize the Company’s legitimate interests or otherwise violate the terms of this
Agreement;
|
||
| (b) |
Employee shall not engage in any research, development, production, sale or
distribution of any Competitive Products, specifically including any products or services
relating to those for which Employee had responsibility for the eighteen (18) month period
preceding Employee’s date of separation;
|
||
| (c) |
Employee shall not market, sell, or otherwise offer or provide any Competitive Products
within Employee’s Geographic Territory (if applicable) or Assigned Customer Base,
specifically including any products or services relating to those for which Employee had
responsibility for the eighteen (18) month period preceding Employee’s date of separation;
and
|
||
| (d) |
Employee shall not distribute, market, sell or otherwise offer or provide any
Competitive Products to any customer of the Company with whom Employee had contact or for
which Employee had responsibility at any time during the eighteen (18) month period
preceding Employee’s date of separation
|
| 25. |
Non-Compete Definitions
. For purposes of this Agreement, the Parties agree that the
following terms shall apply:
|
| (a) |
“Affiliate” includes any parent, subsidiary, joint venture, or other entity controlled,
owned, managed or otherwise associated with the Company;
|
||
| (b) |
“Assigned Customer Base” shall include all accounts or customers formally assigned to
Employee within a given territory or geographical area or contacted by Employee at any time
during the eighteen (18) month period preceding Employee’s date of separation;
|
||
| (c) |
“Competitive Products” shall include any product or service that directly or indirectly
competes with, is substantially similar to, or serves as a reasonable substitute for, any
product or service in research, development or design, or manufactured, produced, sold or
distributed by the Company;
|
11
| (d) |
“Competitor” shall include any person or entity that offers or is actively planning to
offer any Competitive Products and may include (but not be limited to) any entity
identified on the Company’s Illustrative Competitor List, attached hereto as Exhibit B,
which shall be amended from time to time to reflect changes in the Company’s business and
competitive environment (updated competitor lists will be provided to Employee upon
reasonable request);
|
||
| (e) |
“Geographic Territory” shall include any territory formally assigned to Employee as
well as all territories in which Employee has provided any services, sold any products or
otherwise had responsibility at any time during the twenty-four (24) month period preceding
Employee’s date of separation;
|
||
| (f) |
“Relevant Non-Compete Period” shall include the period of Employee’s employment with
the Company as well as a period of twenty-four (24) months after such employment is
terminated, regardless of the reason for such termination provided, however, that this
period shall be reduced to the greater of (i) twelve (12) months or (ii) the total length
of Employee’s employment with the Company, including employment with any parent, subsidiary
or affiliated entity, if such employment is less than twenty-four (24) months;
|
||
| (g) |
“Directly or indirectly” shall be construed such that the foregoing restrictions shall
apply equally to Employee whether performed individually or as a partner, shareholder,
officer, director, manager, employee, salesperson, independent contractor, broker, agent,
or consultant for any other individual, partnership, firm, corporation, company, or other
entity engaged in such conduct
|
| 26. |
Employment by National or Regional Accounts
. Employee acknowledges that Employee
will have acquired and/or have access to confidential and proprietary information regarding
the Company’s business dealings with, and business strategies concerning, its national or
regional accounts (a/k/a Key Accounts, Prime Accounts, and National Accounts). Employee
further acknowledges that such knowledge would provide Employee with a competitive advantage
if used against the Company or used against a competitor of a national or regional account.
Accordingly, as a term and condition of employment, Employee agrees that the foregoing
restrictive covenants shall apply with equal force to restrict Employee from seeking any
employment or any other business relationship with such national or regional account, whether
or not serviced by Employee, for the duration of Employee’s Relevant Non-Compete Period.
Employee agrees that such accounts shall include, but not be limited to, the following:
|
|
|
• | Arbor Memorial Services | • |
Brooke Funeral Services Co., LLC
(Brooke Franchise Corp.) |
||||
|
|
||||||||
|
|
• | Buckner Management Services | • | Calvert Group | ||||
|
|
||||||||
|
|
• | Carriage Funeral Holdings, Inc. | • |
Celebris Memorial Services, Inc.
(Urgel Bourgie) |
||||
|
|
||||||||
|
|
• | Citadel Funeral Service, Inc. (Wisconsin Vault Company) | • | Concord Family Services, Inc. | ||||
|
|
||||||||
|
|
• | Family Choices | • |
Gibralter Mausoleum Company
(A division of Matthews International) |
12
|
|
• | Keystone Group Holdings, Inc. | • | Legacy Funeral Group (Legacy Funeral Holdings, Inc.; Legacy Funeral Holdings of Louisiana, LLC; Legacy Funeral Holdings of Mississippi, LLC; Legacy Funeral Properties, Inc.) | ||||
|
|
||||||||
|
|
• |
Memory Gardens Management
Corporation |
• | Newcomer Funeral Homes and Crematories | ||||
|
|
||||||||
|
|
• | Northstar Memorial Group | • | Paxus Services, Inc. (Paxus Services (Kansas), Inc.; Paxus Services (Tennessee), Inc.; Paxus Services (Lousiana), Inc.; Paxus Services (Texas), Inc.; Paxus Services (Oklahoma), Inc.) | ||||
|
|
||||||||
|
|
• | Pioneer Enterprises, Inc. | • | Rollings Funeral Service, Inc. | ||||
|
|
||||||||
|
|
• |
Security National Financial
Corporation |
• | Service Corporation International | ||||
|
|
||||||||
|
|
• | Stewart Enterprises, Inc. | • | StoneMor Partners, L.P. | ||||
|
|
||||||||
|
|
• |
Vertin Companies Family
Funeral Homes |
• | Washburn-McReavy Funeral Chapels | ||||
|
|
||||||||
|
|
• | Wilson Financial Group, Inc. |
| 27. |
Consent to Reasonableness
. In light of the above-referenced concerns, including
Employee’s knowledge of and access to the Companies’ Confidential Information, Employee
acknowledges that the terms of the foregoing restrictive covenants are reasonable and
necessary to protect the Company’s legitimate business interests and will not unreasonably
interfere with Employee’s ability to obtain alternate employment. As such, Employee hereby
agrees that such restrictions are valid and enforceable, and affirmatively waives any argument
or defense to the contrary. Employee acknowledges that this limited non-competition provision
is not an attempt to prevent Employee from obtaining other employment in violation of IC §
22-5-3-1 or any other similar statute. Employee further acknowledges that the Company may
need to take action, including litigation, to enforce this limited non-competition provision,
which efforts the Parties stipulate shall not be deemed an attempt to prevent Employee from
obtaining other employment.
|
| 28. |
Survival of Restrictive Covenants
. Employee acknowledges that the above restrictive
covenants shall survive the termination of this Agreement and the termination of Employee’s
employment for any reason. Employee further acknowledges that any alleged breach by the
Company of any contractual, statutory or other obligation shall not excuse or terminate the
obligations hereunder or otherwise preclude the Company from seeking injunctive or other
relief. Rather, Employee acknowledges that such obligations are independent and separate
covenants undertaken by Employee for the benefit of the Company.
|
13
| 29. |
Effect of Transfer
. Subject to the provisions of Paragraph 11 above, Employee agrees
that this Agreement shall continue in full force and effect notwithstanding any change in job
duties, job titles or reporting responsibilities. Employee further acknowledges that the
above restrictive covenants shall survive, and be extended to cover, the transfer of Employee
from the Company to its parent, subsidiary, or any other affiliated entity (hereinafter
collectively referred to as an “Affiliate”) or any subsequent transfer(s) among them.
Specifically, in the event of Employee’s temporary or permanent transfer to an Affiliate,
Employee agrees that the foregoing restrictive covenants shall remain in force so as to
continue to protect such company for the duration of the non-compete period, measured from
Employee effective date of transfer to an Affiliate. Additionally, Employee acknowledges that
this Agreement shall be deemed to have been automatically assigned to the Affiliate as of
Employee’s effective date of transfer such that the above-referenced restrictive covenants (as
well as all other terms and conditions contained herein) shall be construed thereafter to
protect the legitimate business interests and goodwill of the Affiliate as if Employee and the
Affiliate had independently entered into this Agreement. Employee’s acceptance of Employee’s
transfer to, and subsequent employment by, the Affiliate shall serve as consideration for (as
well as be deemed as evidence of Employee’s consent to) the assignment of this Agreement to
the Affiliate as well as the extension of such restrictive covenants to the Affiliate.
Employee agrees that this provision shall apply with equal force to any subsequent transfers
of Employee from one Affiliate to another Affiliate.
|
|
| 30. |
Post-Termination Notification
. For the duration of Employee’s Relevant Non-compete
Period or other restrictive covenant period, which ever is longer, Employee agrees to promptly
notify the Company no later than five (5) business days of Employee’s acceptance of any
employment or consulting engagement. Such notice shall include sufficient information to
ensure Employee compliance with Employee’s non-compete obligations and must include at a
minimum the following information: (i) the name of the employer or entity for which Employer
is providing any consulting services; (ii) a description of Employee’s intended duties as well
as (iii) the anticipated start date. Such information is required to ensure Employee’s
compliance with Employee’s non-compete obligations as well as all other applicable restrictive
covenants. Such notice shall be provided in writing to the Office of Vice President and
General Counsel of the Company at One Batesville Boulevard, Batesville, Indiana 47006.
Failure to timely provide such notice shall be deemed a material breach of this Agreement and
entitle the Company to return of any severance paid to Employee plus attorneys’ fees.
Employee further consents to the Company’s notification to any new employer of Employee’s
rights and obligations under this Agreement.
|
|
| 31. |
Scope of Restrictions
. If the scope of any restriction contained in any preceding
paragraphs of this Agreement is deemed too broad to permit enforcement of such restriction to
its fullest extent, then such restriction shall be enforced to the maximum extent permitted by
law, and Employee hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restriction.
|
14
| 32. |
Specific Enforcement/Injunctive Relief
. Employee agrees that it would be difficult
to measure any damages to the Company from a breach of the above-referenced restrictive
covenants, but acknowledges that the potential for such damages would be great, incalculable
and irremediable, and that monetary damages alone would be an inadequate remedy. Accordingly,
Employee agrees that the Company shall be entitled to immediate injunctive relief against such
breach, or threatened breach, in any court having jurisdiction. In addition, if Employee
violates any such restrictive covenant, Employee agrees that the period of such violation
shall be added to the term of the restriction. In determining the period of any violation,
the Parties stipulate that in any calendar month in which Employee engages in any activity in
violation of such provisions, Employee shall be deemed to have violated such provision for the
entire month, and that month shall be added to the duration of the non-competition provision.
Employee acknowledges that the remedies described above shall not be the exclusive remedies,
and the Company may seek any other remedy available to it either in law or in equity,
including, by way of example only, statutory remedies for misappropriation of trade secrets,
and including the recovery of compensatory or punitive damages. Employee further agrees that
the Company shall be entitled to an award of all costs and attorneys’ fees incurred by it in
any attempt to enforce the terms of this Agreement.
|
|
| 33. |
Publicly Traded Stock
. The Parties agree that nothing contained in this Agreement
shall be construed to prohibit Employee from investing Employee’s personal assets in any stock
or corporate security traded or quoted on a national securities exchange or national market
system provided, however, such investments do not require any services on the part of Employee
in the operation or the affairs of the business or otherwise violate the Company’s Code of
Ethics.
|
|
| 34. |
Notice of Claim and Contractual Limitations Period
. Employee acknowledges the
Company’s need for prompt notice, investigation, and resolution of any claims that may be
filed against it due to the number of relationships it has with employees and others (and due
to the turnover among such individuals with knowledge relevant to any underlying claim).
Accordingly, Employee agrees prior to initiating any litigation of any type (including, but
not limited to, employment discrimination litigation, wage litigation, defamation, or any
other claim) to notify the Company, within One Hundred and Eighty (180) days after the claim
accrued, by sending a certified letter addressed to the Company’s General Counsel setting
forth: (i) claimant’s name, address, and phone; (ii) the name of any attorney representing
Employee; (iii) the nature of the claim; (iv) the date the claim arose; and (v) the relief
requested. This provision is in addition to any other notice and exhaustion requirements that
might apply. For any dispute or claim of any type against the Company (including but not
limited to employment discrimination litigation, wage litigation, defamation, or any other
claim), Employee must commence legal action within the shorter of one (1) year of accrual of
the cause of action or such shorter period that may be specified by law.
|
|
| 35. |
Non-Jury Trials
. Notwithstanding any right to a jury trial for any claims, Employee
waives any such right to a jury trial, and agrees that any claim of any type (including but
not limited to employment discrimination litigation, wage litigation, defamation, or any other
claim) lodged in any court will be tried, if at all, without a jury.
|
15
| 36. |
Choice of Forum
. Employee acknowledges that the Company is primarily based in
Indiana, and Employee understands and acknowledges the Company’s desire and need to defend any
litigation against it in Indiana. Accordingly, the Parties agree that any claim of any type
brought by Employee against the Company or any of its employees or agents must be maintained
only in a court sitting in Marion County, Indiana, or Ripley County, Indiana, or, if a federal
court, the Southern District of Indiana, Indianapolis Division. Employee further understands
and acknowledges that in the event the Company initiates litigation against Employee, the
Company may need to prosecute such litigation in such state where the Employee is subject to
personal jurisdiction. Accordingly, for purposes of enforcement of this Agreement, Employee
specifically consents to personal jurisdiction in the State of Indiana as well as any state in
which resides a customer assigned to the Employee. Furthermore, Employee consents to appear,
upon Company’s request and at Employee’s own cost, for deposition, hearing, trial, or other
court proceeding in Indiana or in any state in which resides a customer assigned to the
Employee.
|
|
| 37. |
Choice of Law
. This Agreement shall be deemed to have been made within the County of
Ripley, State of Indiana and shall be interpreted and construed in accordance with the laws of
the State of Indiana. Any and all matters of dispute of any nature whatsoever arising out of,
or in any way connected with the interpretation of this Agreement, any disputes arising out of
the Agreement or the employment relationship between the Parties hereto, shall be governed by,
construed by and enforced in accordance with the laws of the State of Indiana without regard
to any applicable state’s choice of law provisions.
|
|
| 38. |
Titles
. Titles are used for the purpose of convenience in this Agreement and shall
be ignored in any construction of it.
|
|
| 39. |
Severability
. The Parties agree that each and every paragraph, sentence, clause,
term and provision of this Agreement is severable and that, in the event any portion of this
Agreement is adjudged to be invalid or unenforceable, the remaining portions thereof shall
remain in effect and be enforced to the fullest extent permitted by law. Further, should any
particular clause, covenant, or provision of this Agreement be held unreasonable or contrary
to public policy for any reason, the Parties acknowledge and agree that such covenant,
provision or clause shall automatically be deemed modified such that the contested covenant,
provision or clause will have the closest effect permitted by applicable law to the original
form and shall be given effect and enforced as so modified to whatever extent would be
reasonable and enforceable under applicable law.
|
|
| 40. |
Assignment-Notices
. The rights and obligations of the Company under this Agreement
shall inure to its benefit, as well as the benefit of its parent, subsidiary, successor and
affiliated entities, and shall be binding upon the successors and assigns of the Company.
This Agreement, being personal to Employee, cannot be assigned by Employee, but Employee’s
personal representative shall be bound by all its terms and conditions. Any notice required
hereunder shall be sufficient if in writing and mailed to the last known residence of Employee
or to the Company at its principal office with a copy mailed to the Office of the General
Counsel.
|
16
| 41. |
Amendments and Modifications
. Except as specifically provided herein, no
modification, amendment, extension or waiver of this Agreement or any provision hereof shall
be binding upon the Company or Employee unless in writing and signed by both Parties. The
waiver by the Company or Employee of a breach of any provision of this Agreement shall not be
construed as a waiver of any subsequent breach. Nothing in this Agreement shall be construed
as a limitation upon the Company’s right to modify or amend any of its manuals or policies in
its sole discretion and any such modification or amendment which pertains to matters addressed
herein shall be deemed to be incorporated herein and made a part of this Agreement.
|
|
| 42. |
Outside Representations
. Employee represents and acknowledges that in signing this
Agreement Employee does not rely, and has not relied, upon any representation or statement
made by the Company or by any of the Company’s employees, officers, agents, stockholders,
directors or attorneys with regard to the subject matter, basis or effect of this Agreement
other than those specifically contained herein.
|
|
| 43. |
Voluntary and Knowing Execution
. Employee acknowledges that Employee has been
offered a reasonable amount of time within which to consider and review this Agreement; that
Employee has carefully read and fully understands all of the provisions of this Agreement; and
that Employee has entered into this Agreement knowingly and voluntarily.
|
|
| 44. |
Entire Agreement
. This Agreement constitutes the entire employment agreement between
the Parties hereto concerning the subject matter hereof and shall supersede all prior and
contemporaneous agreements between the Parties in connection with the subject matter of this
Agreement. Any pre-existing Employment Agreements shall be deemed null and void. Nothing in
this Agreement, however, shall affect any separately-executed written agreement addressing any
other issues (e.g., the Inventions, Improvements, Copyrights and Trade Secrets Agreement,
etc.).
|
| “EMPLOYEE” | “COMPANY” | |||||||
| HILLENBRAND, INC. | ||||||||
|
|
||||||||
|
Signed:
|
/S/ Joe A. Raver
|
By: |
/S/ Kenneth A. Camp
|
|||||
|
|
President and Chief Executive Officer | |||||||
17
| 1. |
Employee’s active employment by the Company shall terminate effective [date of termination]
(Employee’s “Effective Termination Date”). Except as specifically provided by this Agreement,
or in any other non-employment agreement that may exist between the Company and Employee,
Employee agrees that the Company shall have no other obligations or liabilities to him
following his Effective Termination Date and that his receipt of the Severance Benefits
provided herein shall constitute a complete settlement, satisfaction and waiver of any and all
claims he may have against the Company.
|
|
| 2. |
Employee further submits, and the Company hereby accepts, his resignation as an employee,
officer and director, as of his Effective Termination Date for any position he may hold. The
Parties agree that this resignation shall apply to all such positions Employee may hold with
the Company or any parent, subsidiary or affiliated entity thereof. Employee agrees to
execute any documents needed to effectuate such resignation. Employee further agrees to take
whatever steps are necessary to facilitate and ensure the smooth transition of his duties and
responsibilities to others.
|
|
| 3. |
Employee acknowledges that he has been advised of the American Jobs Creation Act of 2004,
which added Section 409A (“Section 409A”) to the Internal Revenue Code, and significantly
changed the taxation of nonqualified deferred compensation plans and arrangements. Under
proposed and final regulations as of the date of this Agreement, Employee has been advised
that his severance pay may be treated by the Internal Revenue Service as providing
“nonqualified deferred compensation,” and therefore subject to Section 409A. In that event,
several provisions in Section 409A may affect Employee’s receipt of severance compensation.
These include, but are not limited to, a provision which requires that distributions to
“specified employees” of public companies on account of separation from service may not be
made earlier than six (6) months after the effective date of such separation. If applicable,
failure to comply with Section 409A can lead to immediate taxation of deferrals, with interest
calculated at a penalty rate and a 20% penalty. As a result of the requirements imposed by
the American Jobs Creation Act of 2004, Employee agrees if he is a “specified employee” at the
time of his termination of employment and if severance payments are covered as “non-qualified
deferred compensation” or otherwise not exempt, the severance pay benefits shall not be paid
until a date at least six (6) months after Employee’s Effective Termination Date from Company,
as more fully explained by Paragraph 4, below.
|
18
| 4. |
In consideration of the promises contained in this Agreement and contingent upon Employee’s
compliance with such promises, the Company agrees to provide Employee the following:
|
| (a) |
Severance pay, in lieu of, and not in addition to any other contractual, notice or
statutory pay obligations (other than accrued wages and deferred compensation) in the
maximum total amount of [_____] Dollars and
[_____]
Cents ($ _____), less
applicable deductions or other set offs, payable as follows:
|
| (i) |
A lump payment in the gross amount of [insert amount equal to 6 months pay]
[_____] Dollars and [_____] Cents
($ _____
) payable the day following the
sixth (6
tth
) month anniversary of Employee’s Effective Termination Date,
with any remaining amount to be paid in bi-weekly installments equivalent to Employee’s
base salary (i.e. _____ Dollars and _____ Cents ($ _____), less
applicable deductions or other setoffs) commencing upon the next regularly scheduled
payroll date after the payment of the lump sum for a period of up to _____ (_____) weeks
or until the Employee becomes reemployed, whichever comes first.
|
| (i) |
Commencing on the next regularly scheduled payroll immediately following the
earlier to occur of fifteen (15) days from the Company’s receipt of and Executed
Separation and Release Agreement or the expiration of sixty (60) days after Employee’s
Effective Termination Date, Employee shall be paid severance equivalent to his
bi-weekly base salary (i.e.
[_____]
Dollars and
[_____]
Cents
($
[_____]
), less applicable deductions or other set-offs), for a period up to
[weeks] (
[_____]
) weeks following Employee’s Effective Termination Date or until Employee
becomes reemployed, whichever occurs first; provided, however, that if the
before-stated sixty (60) day period ends in a calendar year following the calendar year
in which the sixty (60) day period commenced, then this severance pay shall only begin
on the next regularly scheduled payroll following the expiration of sixty (60) days
after the Employee’s Effective Termination Date.
|
| (b) |
Payment for any earned but unused vacation as of Employee’s Effective Termination Date,
less applicable deductions permitted or required by law, payable in one lump sum within
fifteen (15) days after the Employee’s Effective Termination Date; and
|
||
| (c) |
Group Life Insurance coverage until the above-referenced Severance Pay terminates.
|
| 5. |
Except as may be required by Section 409A, the above Severance Pay shall be paid in
accordance with the Company’s standard payroll practices (e.g. bi-weekly). The Parties agree
that the initial two (2) weeks of the foregoing Severance Pay shall be allocated as
consideration provided to Employee in exchange for his execution of a release in compliance
with the Older Workers Benefit Protection Act. The balance of the severance benefits and
other obligations undertaken by the Company pursuant to this Agreement shall be allocated as
consideration for all other promises and obligations undertaken by Employee, including
execution of a general release of claims.
|
19
| 6. |
The Company further agrees to provide Employee with limited out-placement counseling with a
company of its choice provided that Employee participates in such counseling immediately
following termination of employment. Notwithstanding anything in this Section 6 to the
contrary, the out-placement counseling shall not be provided after the last day of the second
calendar year following the calendar year in which termination of employment occurs.
|
|
| 7. |
As of his Effective Termination Date, Employee will become ineligible to participate in the
Company’s health insurance program and continuation of coverage requirements under COBRA (if
any) will be triggered at that time. However, as additional consideration for the promises
and obligations contained herein (and except as may be prohibited by law), the Company agrees
to continue to pay the employer’s share of such coverage as provided under the health care
program selected by Employee as of his Effective Termination Date, subject to any approved
changes in coverage based on a qualified election, until the above-referenced Severance Pay
terminates, Employee accepts other employment or Employee becomes eligible for alternative
healthcare coverage, which ever comes first, provided Employee (i) timely completes the
applicable election of coverage forms and (ii) continues to pay the employee portion of the
applicable premium(s). Thereafter, if applicable, coverage will be made available to Employee
at his sole expense (
i.e.
, Employee will be responsible for the full COBRA premium)
for the remaining months of the COBRA coverage period made available pursuant to applicable
law. In the event Employee is deemed to be a highly compensated employee under applicable
law, Employee acknowledges that the value of the benefits provided hereunder may be subject to
taxation. The medical insurance provided herein does not include any disability coverage.
|
|
| 8. |
Should Employee become employed before the above-referenced Severance Benefits are exhausted
or terminated, Employee agrees to so notify the Company in writing within five (5) business
days of Employee’s acceptance of such employment, providing the name of such employer (or
entity to whom Employee may be providing consulting services), his intended duties as well as
the anticipated start date. Such information is required to ensure Employee’s compliance with
his non-compete obligations as well as all other applicable restrictive covenants. This
notice will also serve to trigger the Company’s right to terminate the above-referenced
severance pay benefits (specifically excluding any lump sum payment due as a result of the
application of Section 409A) as well as all Company-paid or Company–provided benefits
consistent with the above paragraphs. Failure to timely provide such notice shall be deemed a
material breach of this Agreement entitling the Company to recover as damages the value of all
benefits provided to Employee hereunder plus attorneys fees. .In the event Employee accepts
employment at a lower rate of pay, the Company will agree to continue to pay Employee the
difference between the above severance pay and Employee’s total compensation to be paid by a
subsequent employer upon receipt of acceptable proof of such compensation. All other
severance benefits however, shall terminate upon reemployment.
|
|
| 9. |
Employee agrees to fully indemnify and hold the Company harmless for any taxes, penalties,
interest, cost or attorneys’ fee assessed against or incurred by the Company on account of
such benefits having been provided to him or based on any alleged failure to withhold taxes or
satisfy any claimed obligation. Employee understands and acknowledges that neither the
Company, nor any of its employees, attorneys, or other representatives has provided him with any
legal or financial advice concerning taxes or any other matter, and that he has not relied on
any such advice in deciding whether to enter into this Agreement. To the extent applicable,
Employee understands and agrees that he shall have the responsibility for, and he agrees to pay,
any and all appropriate income tax or other tax obligations for which he is individually
responsible and/or related to receipt of any benefits provided in this Agreement not subject to
federal withholding obligations
|
20
| 10. |
In exchange for the foregoing Severance Benefits, EMPLOYEE FULL NAME on behalf of himself,
his heirs, representatives, agents and assigns hereby RELEASES, INDEMNIFIES, HOLDS HARMLESS,
and FOREVER DISCHARGES (i) Company Name (ii) its parent, subsidiary or affiliated entities,
(iii) all of their present or former directors, officers, employees, shareholders, and agents,
as well as, (iv) all predecessors, successors and assigns thereof from any and all actions,
charges, claims, demands, damages or liabilities of any kind or character whatsoever, known or
unknown, which Employee now has or may have had through the effective date of this Agreement.
|
|
| 11. |
Without limiting the generality of the foregoing release, it shall include: (i) all claims
or potential claims arising under any federal, state or local laws relating to the Parties’
employment relationship, including any claims Employee may have under the Civil Rights Acts of
1866 and 1964, as amended, 42 U.S.C. §§ 1981 and 2000(e)
et
seq
.; the Civil
Rights Act of 1991; the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621
et
seq
.; the Americans with Disabilities Act of 1990, as amended, 42 U.S.C §§
12,101
et
seq
.; the Fair Labor Standards Act 29 U.S.C. §§ 201
et
seq
.; the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101,
et
seq
.; the Employee Retirement Income Security Act, 29 U.S.C. §§ 1101
et
seq
.; the Sarbanes-Oxley Act of 2002, specifically including the Corporate
and Criminal Fraud Accountability Act, 18 USC §1514A
et
seq
.; and any other
federal, state or local law governing the Parties’ employment relationship; (ii) any claims on
account of, arising out of or in any way connected with Employee’s employment with the Company
or leaving of that employment; (iii) any claims alleged or which could have been alleged in
any charge or complaint against the Company; (iv) any claims relating to the conduct of any
employee, officer, director, agent or other representative of the Company; (v) any claims of
discrimination, harassment or retaliation on any basis; (vi) any claims arising from any legal
restrictions on an employer’s right to separate its employees; (vii) any claims for personal
injury, compensatory or punitive damages or other forms of relief; and (viii) all other causes
of action sounding in contract, tort or other common law basis, including (a) the breach of
any alleged oral or written contract, (b) negligent or intentional misrepresentations, (c)
wrongful discharge, (d) just cause dismissal, (e) defamation, (f) interference with contract
or business relationship or (g) negligent or intentional infliction of emotional distress.
|
21
| 12. |
Employee further agrees and covenants not to sue the Company or any entity or individual
subject to the foregoing General Release with respect to any claims, demands, liabilities or
obligations release by this Agreement provided, however, that nothing contained in this
Agreement shall:
|
| (a) |
prevent Employee from filing an administrative charge with the Equal Employment Opportunity
Commission or any other federal, state or local agency; or
|
||
| (b) |
prevent Employee from challenging, under the Older Worker’s Benefit Protection Act (29
U.S.C. § 626), the knowing and voluntary nature of Employee release of any age claims in this
Agreement in court or before the Equal Employment Opportunity Commission.
[
INCLUDE THIS
SUBPARAGRAPH (b) IF EMPLOYEE IS AGE 40 OR OLDER]
|
| 13. |
Notwithstanding his right to file an administrative charge with the EEOC or any other
federal, state, or local agency, Employee agrees that with his release of claims in this
Agreement, he has waived any right he may have to recover monetary or other personal relief in
any proceeding based in whole or in part on claims released by him in this Agreement. For
example, Employee waives any right to monetary damages or reinstatement if an administrative
charge is brought against the Company whether by Employee, the EEOC, or any other person or
entity, including but not limited to any federal, state, or local agency. Further, with his
release of claims in this Agreement, Employee specifically assigns to the Company his right to
any recovery arising from any such proceeding.
|
|
| 14. |
(ADD THIS LANGUAGE IF THE EMPLOYEE IS AGE 40 OR OLDER) The Parties acknowledge that it is
their mutual and specific intent that the above waiver fully complies with the requirements of
the Older Workers Benefit Protection Act (29 U.S.C. § 626) and any similar law governing
release of claims. Accordingly, Employee hereby acknowledges that:
|
| (a) |
He has carefully read and fully understands all of the provisions of this Agreement and
that he has entered into this Agreement knowingly and voluntarily;
|
||
| (b) |
The Severance Benefits offered in exchange for Employee’s release of claims exceed in
kind and scope that to which he would have otherwise been legally entitled absent the
execution of this Agreement;
|
||
| (c) |
Prior to signing this Agreement, Employee had been advised, and is being advised by
this Agreement, to consult with an attorney of his choice concerning its terms and
conditions; and
|
||
| (d) |
He has been offered at least [twenty-one (21)/forty-five (45)] [SELECT 21 FOR AN
INDIVIDUAL TERMINATION AND 45 FOR A GROUP TERMINATION] days within which to review and
consider this Agreement.
|
| 15. |
(ADD THIS LANGUAGE IF EMPLOYEE IS AGE 40 OR OLDER) The Parties agree that this Agreement
shall not become effective and enforceable until the date this Agreement is signed by both
Parties or seven (7) calendar days after its execution by Employee, whichever is later.
Employee may revoke this Agreement for any reason by providing written notice of such intent
to the Company within seven (7) days after he has signed this Agreement, thereby forfeiting
Employee’s right to receive any Severance Benefits provided hereunder and rendering this
Agreement null and void in its entirety. This revocation must be sent to the Employee’s HR
representative with a copy sent to
the Batesville Casket Company Office of General Counsel and must be received by the end of the
seventh day after the Employee signs this Agreement to be effective.
|
22
| 16. |
[ADD THIS LANGUAGE IF THE EMPLOYEE IS IN CALIFORNIA] Employee specifically acknowledges
that, as a condition of this Agreement, Employee expressly releases all rights and claims that
Employee knows about as well as those Employee may not know about. Employee expressly waives
all rights under Section 1542 of the Civil Code of the State of California, which reads as
follows:
|
| 17. |
The Parties agree that nothing contained herein shall purport to waive or otherwise affect
any of Employee’s rights or claims that may arise after he signs this Agreement. It is
further understood by the Parties that nothing in this Agreement shall affect any rights
Employee may have under any Company sponsored Deferred Compensation Program, Executive Life
Insurance Bonus Plan, Stock Grant Award, Stock Option Grant, Restricted Stock Unit Award,
Pension Plan and/or Savings Plan (
i.e
., 401(k) plan) provided by the Company as of the
date of his termination, such items to be governed exclusively by the terms of the applicable
agreements or plan documents.
|
|
| 18. |
Similarly, notwithstanding any provision contained herein to the contrary, this Agreement
shall not constitute a waiver or release or otherwise affect Employee’s rights with respect to
any vested benefits, any rights he has to benefits which can not be waived by law, any
coverage provided under any Directors and Officers (“D&O”) policy, any rights Employee may
have under any indemnification agreement he has with the Company prior to the date hereof, any
rights he has as a shareholder, or any claim for breach of this Agreement, including, but not
limited to the benefits promised by the terms of this Agreement.
|
|
| 19. |
[
Optional provision for equity-eligible employees
Except as provided herein, Employee
acknowledges that he will not be eligible to receive or vest in any additional stock options,
stock awards or restricted stock units (“RSUs”) as of his Effective Termination Date. Failure
to exercise any vested options within the applicable period as set for in the plan and/or
grant will result in their forfeiture. Employee acknowledges that any stock options, stock
awards or RSUs held for less than the required period shall be deemed forfeited as of the
effective date of this Agreement. All terms and conditions of such stock options, stock
awards or RSUs shall not be affected by this Agreement, shall
remain in full force and effect, and shall govern the Parties’ rights with respect to such
equity based awards.]
|
23
| 20. |
[
Option A
]
Employee acknowledges that his termination and the Severance Benefits offered
hereunder were based on an individual determination and were not offered in conjunction with
any group termination or group severance program and waives any claim to the contrary.
|
|
|
[
Option B
]
Employee represents and agrees that he has been provided relevant cohort information
based on the information available to the Company as of the date this Agreement was tendered to
Employee. This information is attached hereto as Exhibit A. The Parties acknowledge that
simply providing such information does not mean and should not be interpreted to mean that the
Company was obligated to comply with 29 C.F.R. § 1625.22(f).
|
||
| 21. |
Employee hereby affirms and acknowledges his continued obligations to comply with the
post-termination covenants contained in his Employment Agreement, including but not limited
to, the non-compete, trade secret and confidentiality provisions. Employee acknowledges that
a copy of the Employment Agreement has been attached to this Agreement as Exhibit A
[B]
or has
otherwise been provided to him and, to the extent not inconsistent with the terms of this
Agreement or applicable law, the terms thereof shall be incorporated herein by reference.
Employee acknowledges that the restrictions contained therein are valid and reasonable in
every respect and are necessary to protect the Company’s legitimate business interests.
Employee hereby affirmatively waives any claim or defense to the contrary. Employee hereby
acknowledges that the definition of Competitor, as provided in his Employment Agreement shall
include but not be limited to those entities specifically identified in the updated Competitor
List, attached hereto as Exhibit B
[C]
.
|
|
| 22. |
Employee acknowledges that the Company as well as its parent, subsidiary and affiliated
companies (“Companies” herein) possess, and he has been granted access to, certain trade
secrets as well as other confidential and proprietary information that they have acquired at
great effort and expense. Such information includes, without limitation, confidential
information regarding products and services, marketing strategies, business plans, operations,
costs, current or, prospective customer information (including customer contacts,
requirements, creditworthiness and like matters), product concepts, designs, prototypes or
specifications, regulatory compliance issues, research and development efforts, technical data
and know-how, sales information, including pricing and other terms and conditions of sale,
financial information, internal procedures, techniques, forecasts, methods, trade information,
trade secrets, software programs, project requirements, inventions, trademarks, trade names,
and similar information regarding the Companies’ business (collectively referred to herein as
“Confidential Information”).
|
|
| 23. |
Employee agrees that all such Confidential Information is and shall remain the sole and
exclusive property of the Company. Except as may be expressly authorized by the Company in
writing, or as may be required by law after providing due notice thereof to the Company,
Employee agrees not to disclose, or cause any other person or entity to disclose, any
Confidential Information to any third party for as long thereafter as such information remains
confidential (or as limited by applicable law) and agrees not to make use of any such
Confidential Information for Employee’s own purposes or for the benefit of any other entity or
person. The Parties acknowledge that Confidential Information shall not include any information
that is otherwise made public through no fault of Employee or other wrong doing.
|
24
| 24. |
On or before Employee’s Effective Termination Date or per the Company’s request, Employee
agrees to return the original and all copies of all things in his possession or control
relating to the Company or its business, including but not limited to any and all contracts,
reports, memoranda, correspondence, manuals, forms, records, designs, budgets, contact
information or lists (including customer, vendor or supplier lists), ledger sheets or other
financial information, drawings, plans (including, but not limited to, business, marketing and
strategic plans), personnel or other business files, computer hardware, software, or access
codes, door and file keys, identification, credit cards, pager, phone, and any and all other
physical, intellectual, or personal property of any nature that he received, prepared, helped
prepare, or directed preparation of in connection with his employment with the Company.
Nothing contained herein shall be construed to require the return of any non-confidential and
de minimis items regarding Employee’s pay, benefits or other rights of employment such as pay
stubs, W-2 forms, 401(k) plan summaries, benefit statements, etc.
|
|
| 25. |
Employee hereby consents and authorizes the Company to deduct as an offset from the
above-referenced severance payments the value of any Company property not returned or returned
in a damaged condition as well as any monies paid by the Company on Employee’s behalf (e.g.,
payment of any outstanding American Express bill).
|
|
| 26. |
Employee agrees to cooperate with the Company in connection with any pending or future
litigation, proceeding or other matter which has been or may be brought against or by the
Company before any agency, court, or other tribunal and concerning or relating in any way to
any matter falling within Employee’s knowledge or former area of responsibility. Employee
agrees to immediately notify the Company, through the Office of the General Counsel, in the
event he is contacted by any outside attorney (including paralegals or other affiliated
parties) unless (i) the Company is represented by the attorney, (ii) Employee is represented
by the attorney for the purpose of protecting his personal interests or (iii) the Company has
been advised of and has approved such contact. Employee agrees to provide reasonable
assistance and completely truthful testimony in such matters including, without limitation,
facilitating and assisting in the preparation of any underlying defense, responding to
discovery requests, preparing for and attending deposition(s) as well as appearing in court to
provide truthful testimony. The Company agrees to reimburse Employee for all reasonable out
of pocket expenses incurred at the request of the Company associated with such assistance and
testimony.
|
|
| 27. |
Employee agrees not to make any written or oral statement that may defame, disparage or cast
in a negative light so as to do harm to the personal or professional reputation of (a) the
Company, (b) its employees, officers, directors or trustees or (c) the services and/or
products provided by the Company and its subsidiaries or affiliate entities. The Parties
acknowledge that nothing contained herein shall be construed to prevent or prohibit the
Company or the Employee from providing truthful information in response to any court order,
discovery request, subpoena or other lawful request.
|
25
| 28. |
EMPLOYEE SPECIFICALLY AGREES AND UNDERSTANDS THAT THE EXISTENCE AND TERMS OF THIS AGREEMENT
ARE STRICTLY CONFIDENTIAL AND THAT SUCH CONFIDENTIALITY IS A MATERIAL TERM OF THIS AGREEMENT.
Accordingly, except as required by law or unless authorized to do so by the Company in
writing, Employee agrees that he shall not communicate, display or otherwise reveal any of the
contents of this Agreement to anyone other than his spouse, legal counsel or financial advisor
provided, however, that they are first advised of the confidential nature of this Agreement
and Employee obtains their agreement to be bound by the same. The Company agrees that
Employee may respond to legitimate inquiries regarding the termination of his employment by
stating that the Parties have terminated their relationship on an amicable basis and that the
Parties have entered into a Confidential Separation and Release Agreement that prohibits him
from further discussing the specifics of his separation. Nothing contained herein shall be
construed to prevent Employee from discussing or otherwise advising subsequent employers of
the existence of any obligations as set forth in his Employment Agreement. Further, nothing
contained herein shall be construed to limit or otherwise restrict the Company’s ability to
disclose the terms and conditions of this Agreement as may be required by business necessity.
|
|
| 29. |
In the event that Employee breaches or threatens to breach any provision of this Agreement,
he agrees that the Company shall be entitled to seek any and all equitable and legal relief
provided by law, specifically including immediate and permanent injunctive relief. Employee
hereby waives any claim that the Company has an adequate remedy at law. In addition, and to
the extent not prohibited by law, Employee agrees that the Company shall be entitled to
discontinue providing any additional Severance Benefits upon such breach or threatened breach
as well as an award of all costs and attorneys’ fees incurred by the Company in any successful
effort to enforce the terms of this Agreement. Employee agrees that the foregoing relief
shall not be construed to limit or otherwise restrict the Company’s ability to pursue any
other remedy provided by law, including the recovery of any actual, compensatory or punitive
damages. Moreover, if Employee pursues any claims against the Company subject to the
foregoing General Release, or breaches the above confidentiality provision, Employee agrees to
immediately reimburse the Company for the value of all benefits received under this Agreement
to the fullest extent permitted by law.
|
|
| 30. |
Similarly, in the event that the Company breaches or threatens to breach any provision of
this Agreement, Employee shall be entitled to seek any and all equitable or other available
relief provided by law, specifically including immediate and permanent injunctive relief. In
the event Employee is required to file suit to enforce the terms of this Agreement, the
Company agrees that Employee shall be entitled to an award of all costs and attorneys’ fees
incurred by him in any wholly successful effort (i.e. entry of a judgment in his favor) to
enforce the terms of this Agreement. In the event Employee is wholly unsuccessful, the
Company shall be entitled to an award of its costs and attorneys’ fees.
|
|
| 31. |
Both Parties acknowledge that this Agreement is entered into solely for the purpose of
terminating Employee’s employment relationship with the Company on an amicable basis and shall
not be construed as an admission of liability or wrongdoing by the Company or Employee, both
Parties having expressly denied any such liability or wrongdoing.
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26
| 32. |
Each of the promises and obligations shall be binding upon and shall inure to the benefit of
the heirs, executors, administrators, assigns and successors in interest of each of the
Parties.
|
|
| 33. |
The Parties agree that each and every paragraph, sentence, clause, term and provision of this
Agreement is severable and that, if any portion of this Agreement should be deemed not
enforceable for any reason, such portion shall be stricken and the remaining portion or
portions thereof should continue to be enforced to the fullest extent permitted by applicable
law.
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|
| 34. |
This Agreement shall be governed by and interpreted in accordance with the laws of the State
of Indiana without regard to any applicable state’s choice of law provisions.
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|
| 35. |
(USE THIS LANGUAGE IF OWBPA LANGUAGE (FOR EMPLOYEES AGE 40 OR OVER) IS NOT INCLUDED).
Employee acknowledges that Employee has been offered a period of twenty-one (21) days within
which to consider and review this Agreement; that Employee has carefully read and fully
understands all of the provisions of this Agreement; and that Employee has entered into this
Agreement knowingly and voluntarily.
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|
| 36. |
Employee represents and acknowledges that in signing this Agreement he does not rely, and has
not relied, upon any representation or statement made by the Company or by any of the
Company’s employees, officers, agents, stockholders, directors or attorneys with regard to the
subject matter, basis or effect of this Agreement other than those specifically contained
herein.
|
|
| 37. |
This Agreement represents the entire agreement between the Parties concerning the subject
matter hereof, shall supersede any and all prior agreements which may otherwise exist between
them concerning the subject matter hereof (specifically excluding, however, the
post-termination obligations contained in an Employee’s Employment Agreement, any obligations
contained in an existing and valid Indemnity Agreement or Change in Control or any obligation
contained in any other legally-binding document), and shall not be altered, amended, modified
or otherwise changed except by a writing executed by both Parties.
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27
28
|
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• | Astral Industries, Inc. | • | Aurora Casket Company, Inc. | ||||
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• | Goliath Casket, Inc. | • | Milso Industries, Inc. | ||||
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• | Milso Industries, LLC | • | New England Casket Company | ||||
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• | R and S Marble Designs | • | Reynoldsville Casket Company | ||||
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• | Schuykill Haven Casket Company, Inc. (A division of The Haven Line Industries) | • | SinoSource International, Inc. | ||||
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• | Thacker Caskets, Inc. | • | The York Group (a division of Matthews International Corp.) and its distributors, including Warfield Rohr, Artco, Newmark and AJ Distribution | ||||
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||||||||
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|
• | The Victoriaville Group | • | Wilbert Funeral Services, Inc. |
|
/S/ Kenneth A. Camp
|
||
|
President and Chief Executive Officer
|
|
/S/ Cynthia L. Lucchese
|
||
|
Senior Vice President and Chief Financial Officer
|
| (1) |
The Report fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and
|
||
| (2) |
The information contained in the Report fairly presents, in all material respects, the
financial condition and results of operations of the Company.
|
|
/S/ Kenneth A. Camp
|
||
|
President and Chief Executive Officer
|
||
|
August 12, 2008
|
| (1) |
The Report fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and
|
||
| (2) |
The information contained in the Report fairly presents, in all material respects, the
financial condition and results of operations of the Company.
|
|
/S/ Cynthia L. Lucchese
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||
|
Senior Vice President and Chief Financial Officer
|
||
|
August 12, 2008
|