EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
DIVERSIFIED SENIOR SERVICES, INC.
AND
X. X. XXXXX, XX.
EFFECTIVE AS OF JANUARY 1, 1997
THIS AGREEMENT, made and entered into as of the 1st day of January, 1997, by and
between DIVERSIFIED SENIOR SERVICES, INC., a North Carolina corporation
("Company") and X. X. XXXXX, XX., a resident of the State of North Carolina
("Executive").
W I T N E S S E T H:
The parties, for and in consideration of the mutual and reciprocal covenants and
agreements contained in this Agreement, do contract and agree as follows:
ARTICLE I
PURPOSE AND EMPLOYMENT
The purpose of this Agreement is to define the relationship between the Company,
as an employer, and Executive, as an employee. By the execution of this
Agreement, the Company employs Executive and Executive accepts employment by the
Company.
ARTICLE II
DEFINITIONS
The following terms (in alphabetical order) shall have the meanings set forth
opposite such terms for purposes of this Agreement:
2.01 AGREEMENT: means this Executive Employment Agreement between
Diversified Senior Services, Inc. and X. X. Xxxxx, Xx., effective as
of January 1, 1997, and as may be amended from time to time.
2.02 BASE COMPENSATION: means the annual salary amount payable to Executive
by the Company pursuant to Section 4.01, as such amount may be
adjusted from time to time.
2.03 BOARD: means the Board of Directors of the Company.
2.04 CEO: means the Chief Executive Officer of the Company.
2.05 CODE: means the Internal Revenue Code of 1986, as amended from time to
time.
2.06 COMMITTEE: means the Compensation Committee of the Board of Directors
of Diversified Senior Services, Inc. or any successor committee of the
Board which deals with compensation.
2.07 COMPANY: means Diversified Senior Services, Inc., a North Carolina
corporation.
2.08 EFFECTIVE DATE: means January 1, 1997.
2.09 EXCESS PARACHUTE PAYMENTS: means "excess parachute payments" as that
term is defined under Code Section 280G(b).
2.10 EXECUTIVE: means X. X. Xxxxx, Xx., a North Carolina resident, Social
Security number ###-##-####.
2.11 FUNDAMENTAL CHANGE: means any of the following events:
(a) the sale by the Company of substantially all of its assets to a
single purchaser or a group of associated or affiliated
purchasers who are not affiliated with the Company;
(b) the sale, exchange or other disposition, in one transaction to an
entity or entities not affiliated with the Company, of more than
fifty percent (50%) of the outstanding capital stock of the
Company other than a sale, exchange or disposition of the capital
stock of the Company resulting from a public or private offering
of capital stock or other security convertible into capital stock
of the Company which offering is sponsored or initiated by the
Company and approved by the Board;
(c) the merger or consolidation of the Company in a transaction in
which the stockholders of the Company receive less than fifty
percent (50%) of the outstanding voting stock of the new or
continuing entity;
(d) a change in control of the Board as constituted as of the
Effective Date.
2.12 NORMAL RETIREMENT: means retirement by Executive from employment with
the Company after the date he attains age seventy-five (75) or such
earlier age as requested by Executive and approved by the Committee.
2.13 SEVERANCE EVENTS: means a termination without cause by the Company at
any time in accordance with Section 3.04(a) of the Executive's
employment with the Company or, upon the occurr of a Fundamental
Change and within three (3) months before or eighteen (18) months
after such Fundamental Change:
(a) a meaningful reduction in Executive's title, duties or
responsibilities by the Company;
(b) a greater than ten percent (10%) reduction of Executive's Base
Compensation by the Company; or
(c) a Company-required relocation of Executive's workplace beyond a
30-mile radius from either the Company's principal office in
Winston-Salem, North Carolina or Executive's then current
principal residence.
2.14 TOTAL DISABILITY: means a physical or mental condition arising after
Executive commences employment with the Company which totally and
permanently prevents him from performing his usual and customary
duties as an employee of the Company. Executive will be deemed to have
suffered a Total Disability when he:
(a) has been declared legally incompetent by a final decree of a
court of competent jurisdiction (the date of such decree being
deemed to be the date on which the disability occurred);
(b) receives disability insurance benefits for a period of six (6)
consecutive months from any disability income insurance policy
maintained by the Company; or
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(c) has become permanently disabled, which shall be deemed to exist
upon a determination by the Board:
(1) that Executive has become physically or mentally
incapacitated or disabled; and
(2) that such incapacity or disability has continued for a
period of six (6) consecutive months or for shorter periods
aggregating nine (9) months during any consecutive fifteen
(15) month period.
ARTICLE III
TERMS AND DUTIES
3.01 TERM. The term of this Agreement shall be for five (5) years from the
Effective Date and shall be extended a day for each day Executive is
employed by the Company on or before his seventieth (70th) birthday,
so that the Agreement shall always be effective for a term ending with
the date of the earlier of Executive's seventy-fifth (75th) birthday
or five (5) years from his most recent date of employment with the
Company.
3.02 DUTIES. Executive shall serve as the Company's Executive Vice
President and Chief Financial Officer, or in such other position of
the same or greater stature as the Company may direct or desire,
subject at all times to the control of the CEO. Executive shall
perform such other or additional duties as shall reasonable be
assigned to him from time to time by the CEO, which duties shall be
those customarily performed by a corporate officer having executive
responsibilities of the position in which he is employed under this
Agreement and in a business similar to the Company. During the term of
this Agreement, Executive also agrees to serve, if elected, as an
officer and director of any subsidiary or affiliate of the Company and
to provide services to other entities as directed by the CEO.
3.03 EXTENT OF SERVICES. Executive shall use his best efforts to devote his
entire business time, attention, skills, abilities and energies to
promote the business and best interest of this Company, and will
perform such duties as are assigned to him by the CEO, in accordance
with and pursuant to all of the terms and conditions contained in this
Agreement, and shall, during the term of this Agreement, be engaged in
any other business activity only if reasonably approved by the CEO,
regardless of whether such activity is pursued for gain, profit, or
other pecuniary advantage; provided, however, this Section 3.03 shall
not prevent Executive from investing his assets in such form or manner
as will not require any services by Executive in the operation of the
affairs of the companies in which such investments are made. Executive
shall serve in such other executive capacity or capacities as may be
specified from time to time by the CEO.
3.04 TERMINATION OF EMPLOYMENT.
(A) WITHOUT CAUSE. Either party may terminate this Agreement without
cause at any time, including the occurrence of a Fundamental
Change, upon thirty (30) days written notice to the other party.
Upon such termination by the Company, the Company shall be
obligated to continue to pay Executive the Base Compensation
amount due Executive under Section 4.01 through the date of
termination, plus any other compensation due him under Article V.
Upon such termination by
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Executive for any reason other than Normal Retirement, the
Company shall be obligated to pay Executive only the Base
Compensation amount due Executive under Section 4.01 through the
date of termination. Upon such termination by Executive upon his
Normal Retirement, the Company shall be obligated to pay
Executive only the Base Compensation amount due Executive under
Section 4.01 for the three (3) months following the date of
termination.
(B) WITH CAUSE. The Company may terminate this Agreement with cause
at any time immediately upon delivery of written notice to
Executive. Upon such termination, the Company shall be obligated
to continue to pay Executive only the Base Compensation amount
due Executive under Section 4.01 for thirty (30) days following
the date of the delivery of the notice of termination, which date
shall be for all purposes of this Agreement, the date of
termination of his employment.
Executive's employment shall be considered terminated with cause
if terminated for (1) any act of fraud, misappropriation,
embezzlement or similar act involving malfeasance or moral
turpitude; (2) conviction of a felony of a heinous nature; (3)
material failure to perform the services and duties described
herein (except in the case of death or disability), material
violation of any Agreement provisions, or material breach of any
fiduciary duty to the Company, if the material failure, violation
or breach unreasonably continues after written notice of the
breach or violation is given to the Executive by the Company; (4)
gross misconduct, misfeasance or malfeasance in connection with
his employment under this Agreement, which shall include, but not
be limited to, excessive absences from work, failure to follow
reasonable directives from the CEO, neglect of duty, negligence,
disloyalty, directly or indirectly accepting or soliciting any
business of the type conducted by the Company during the term of
this Agreement in direct competition with the Company, without
prior authorization of the Board, dishonesty, intemperance,
immorality, disobedience of the Company's rules, disrespect,
unnecessarily endangering, damaging or destroying life or
property, or similar conduct injurious to the Company; or (5)
other behavior which adversely reflects on the reputation of the
Company such as substance abuse, public intoxication, etc.
Whether cause for such termination exists shall be determined by
the CEO. If on or before the date of such determination by the
CEO, the individual who, as of the Effective Date, is CEO has
retired, become disabled or died, the Committee shall make such
determination and the Committee's determination of cause shall be
subject to arbitration as described in Article VII.
(C) TOTAL DISABILITY. Upon the Total Disability of Executive during
the term of this Agreement, this Agreement shall terminate
immediately and the Company shall be obligated to continue to pay
Executive only the Base Compensation amount due Executive under
Section 4.01 for the three (3) months following the date of
termination.
In determining Total Disability under Section 2.14 for purposes
of this Section 3.04(c), the Board shall rely upon the written
opinion of the physician regularly
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attending Executive in determining whether a disability is deemed
to exist. If the Board disagrees with the opinion of such
physician, the Board may choose a second physician, and the two
(2) physicians shall choose a third physician, and the written
opinion of a majority of the three (3) physicians shall be
conclusive as to Executive's disability. The date of any written
opinion conclusively finding Executive to be disabled is the date
on which the disability will be deemed to have occurred. The
expenses associated with the utilization of any physician other
than the physician regularly attending Executive shall be borne
by the Company. Executive hereby consents to any required medical
examination and agrees to furnish any medical examination and
agrees to furnish any medical information requested by the
Company and to waive any applicable physician/patient privilege
that may arise because of such determination.
(D) DEATH. Upon the death of Executive during the term of this
Agreement, this Agreement shall terminate immediately and
Executive's estate shall be entitled to receive the Base
Compensation amount due Executive under Section 4.01 for the
three (3) months following the Executive's date of death.
(E) EARLY RETIREMENT. The Company currently does not have an early
retirement policy and, therefore, the Executive shall not obtain
any rights to early retirement under this Agreement.
ARTICLE IV
BASE COMPENSATION, BONUSES, BENEFITS AND PERQUISITES
4.01 BASE COMPENSATION AND BONUSES. For all the services to be rendered by
Executive pursuant to his Agreement, the Company shall pay Executive a
Base Compensation as set forth on the "Schedule of Compensation"
attached to this Agreement as Exhibit A and made a part hereof by this
reference. Said Compensation shall be payable in accordance with the
Company's regular payroll procedures. In the event Executive receives
any periodic payments representing lost compensation under any health,
disability, accident and/or salary continuation insurance policy, the
premiums for which have been paid by the Company, the amount of salary
that Executive would be entitled to receive from the Company shall not
be decreased by the amount of such payments. Executive shall also be
entitled to any cash bonuses as may be granted by the Company from
time to time with regard to his services as an employee of the
Company. The Company and Executive from time to time by mutual
agreement may reflect increases in Executive's Base Compensation by
entering any such increase upon Exhibit A. If an increase is entered
on Exhibit A and duly signed by the Company and Executive, such entry
shall constitute an amendment to this Agreement as of the effective
date of such entry designated in such Exhibit A and shall supersede
the Base Compensation provided for in this Section 4.01 or any other
increase or increases previously made in Exhibit A. In the event that
the Company requests and Executive agrees to the deferral of part or
all of Executive's Base Compensation, Executive shall be entitled to
repayment of such base amount, plus an additional amount as shall be
provided in detail on the "Schedule for Repayment and Computation of
Deferred Compensation" attached to this Agreement as Exhibit B and
made a part of this Agreement by this reference. The parties
acknowledge that the
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Company has assumed the liability for certain accrued, but unpaid,
compensation due to Executive for startup activities incurred by the
Company's parent organization prior to the incorporation of the
Company, and relating to fiscal year ended December 31, 1996, which
amounts are reflected and subject to the terms set forth on Exhibit B.
At the time of any entry on Exhibit B, such entry shall be duly signed
by the Company and Executive and such entry shall constitute an
amendment to this Agreement as of the effective date of such entry
designed in such Exhibit B.
4.02 EXPENSE REIMBURSEMENT. Executive shall be entitled to reimbursement
for all reasonable travel and other business expenses incurred by him
in the performance of services under this Agreement. In addition,
Executive is encouraged and expected to maintain his professional
credentials as a Certified Public Accountant for the benefit of the
Company and he shall be entitled to reimbursement for all reasonable
expenses incurred by him in connection with maintaining such
credentials, including meetings, professional conventions, continuing
education courses, licensing within the state of North Carolina,
membership in relevant national or North Carolina state professional
societies and associations and, if deemed necessary by the Company,
related errors and omissions or other professional liability
insurance. All expenses described under this Section 4.02 shall be
reimbursed by the Company upon presentation of expense statements or
vouchers and such other supporting information as the Company may
reasonably request.
4.03 EMPLOYEE BENEFITS AND PERQUISITES. Based on his years of service, his
compensation (but only to the extent provided under Section 4.01 and
as permitted to be taken into account under the Code) and his position
with the Company, Executive shall be entitled to participate in the
major medical, hospitalization, life insurance, vacation, sick leave
or disability, pension or retirement, profit-sharing, stock-based
incentive and other fringe benefit plans which are generally provided
by the Company to its similarly situated employees and the Company
agrees to provide such basic benefits. Further, for each Year of the
term of this Agreement, in the discretion of the Board, the Company
shall provide and Executive receive any and all working facilities,
perquisites and incentives, and such other benefits to the extent they
are generally provided and continue to be provided by the Company to
its other similarly situated executives during the Year. For purposes
of identifying the benefits and perquisites contemplated by this
Section 4.03, except as prohibited or found to be discriminatory under
current provisions of the Employee Retirement Income Security Act of
1974 or applicable North Carolina law, Executive's years of service to
the Company shall include the four (4) years he provided services to
the Company as a Certified Public Accountant before his hire as an
employee of the Company, and the twelve (12) years Executive was
employed by the Company's affiliates.
ARTICLE V
SEVERANCE PAY
5.01 ELIGIBILITY.
(a) In addition to any amounts due under Section 3.04 of this
Agreement or any other benefit or incentive plan of the Company,
executive shall receive a lump sum
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compensatory payment from the Company as determined in Section
5.02, if during the term of this Agreement a Severance Event
occurs. In no event shall the Severance Pay amount determined
under Section 5.02 be reduced by the amount of any payments or
benefits due under any other plan or program outside of this
Article V, unless specifically taken into account in Section
5.02(a).
(b) Executive shall not be entitled to any Severance Pay amount under
this Article V, if Executive's employment with the Company is
terminated with cause under Section 3.04(b) or as a result of his
Normal Retirement, death, Total Disability, or voluntary
termination by him of this Agreement under Section 3.04(a).
5.02 PAYMENT AMOUNT AND TIMING.
(A) AMOUNT. The Company shall pay to Executive an amount referred to
in this Article V as "Severance Pay." Subject to adjustment as
provided in Section 5.03(b), the Severance Pay to be received by
the Executive shall be an amount equal to the following, less one
dollar ($1.00): (a) three (3) times the Executive's average Base
Compensation received for the immediately preceding five (5)
fiscal years; or, (b) if Executive has been employed by the
Company for less than five (5) years, then the annualized average
of any Base Compensation received during such period. This
provision is intended to comply with the definitions set forth in
Code Sections 280G(b)(3) and (d)(1) and (2). For purposes of this
Agreement, the term "Severance Pay Cap" shall mean the maximum
amount which may be paid to Executive without constituting an
Excess Parachute Payment. The value of any non-cash benefit of
any deferred cash payments shall be determined by the Company in
accordance with the principles of Code Section 280G(d)(3) and
(4). The Company reserves the right, after consultation with its
chosen tax counsel, to make a reasonable determination of the
Severance Pay Cap under Code Section 280G. It is the intention of
the parties to this Agreement that Executive's Severance Pay
shall not exceed an amount which is deductible in full by the
Company when paid, except as permitted under Section 5.02(c).
(B) TIMING. The Company shall pay the Severance Pay amount determined
under this Section 5.02 in a single lump sum to Executive not
later than thirty (30) days after the Severance Event occurs.
5.03 REIMBURSEMENT FOR EXCISE TAX AND ADDED INCOME TAX.
(a) The Severance Pay provided under Section 5.02 is not intended to
be treated as an Excess Parachute Payment. The Company shall take
such actions as may be available and practical, and Executive
shall cooperate with any such actions, to provide clear and
convincing evidence to the Internal Revenue Service and/or the
State of North Carolina that any such payments were not
contingent upon a change in Company ownership and otherwise were
not Excess Parachute Payments.
(b) If, despite the efforts of the Company and Executive, the
Internal Revenue Service successfully treats all or any portion
of those payments as Excess Parachute Payments, the Company shall
protect Executive from depletion of the amount of
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such payments by reimbursing him for the effects of any
additional federal or State of North Carolina income or excise
taxes payable as a result of such payments, including any
reimbursement under this Section 5.03. Such reimbursement shall
be made to Executive by the Company as an annual payment for each
affected taxable year of Executive, in addition to any payments
due under Section 5.01, in an amount equal to the amount of any
Section 5.01 payments treated by the Internal Revenue Service as
Excess Parachute Payments for such taxable year multiplied by a
fraction with (1) as the numerator and (2) as the denominator,
where
(1) is the combined excise tax rate applicable to such Excess
Parachute Payments under Code Section 4999 and any similar
State of North Carolina excise tax rate, and
(2) is the difference of 1.0 minus both (A) the combined federal
excise tax rate applicable to such Excess Parachute Payments
under Code Section 4999 and any similar State of North
Carolina excise tax rate, and (B) the combined marginal
federal and State of North Carolina income tax rate
applicable to the additional payment provided under this
Section 5.03(b) for the taxable year of Executive for which
such payment is considered to be taxable income.
ARTICLE VI
INFORMATION, DOCUMENT AND EMPLOYEE SOLICITATION
6.01 CONFIDENTIAL INFORMATION AND DISCOVERIES. Executive agrees that all
information of a technical or business nature such as know-how, trade
secrets, secret business information, plans, data processes,
techniques, etc., except such information and skills generally known
in the Company's trade and business, information made public by the
Company or generally of a public nature, and knowledge of Executive
not constituting a trade secret ("Confidential Information"), acquired
by Executive in the course of his employment by the Company, is a
valuable business property right of the Company. Executive agrees,
that such Confidential Information, whether in written, verbal or
model form, shall not be disclosed to anyone outside the employment of
the Company without the express written authorization of the Company.
Confidential Information shall include, without limitation, vendor
lists and records, customer lists, business policies, business
methods, financial information and any other similar material of any
kind relating to the business of the Company. In the event of an
actual or threatened breach of this provision, the Company shall be
entitled to an injunction restraining Executive from such action, and
the Company shall not be prohibited in obtaining such equitable relief
or from pursuing any other available remedies for such breach or
threatened breach, including recovery of damages from Executive.
6.02 RETURN OF DOCUMENTS. Upon the termination of this Agreement, Executive
shall forthwith return and deliver to the Company and shall not retain
any original or copies of any books, papers, price lists or vendor
contracts, bids or customer lists, files, books of account, notebooks
and other documents and data relating to the performance of services
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rendered by Executive hereunder, all of which materials are hereby
agreed to be the property of the Company.
6.03 SOLICITATION OF EMPLOYEES. Executive agrees that for a period of
eighteen (18) months following the termination of Executive's
employment with the Company, Executive shall not directly or
indirectly, personally or with any other employees, agents or
otherwise, on behalf of himself or any other person, firm or
corporation, solicit or cause any person under his control to solicit
any employee of the Company, or any employee of any Company subsidiary
to affiliate to terminate his or her employment with the Company or
such subsidiary or affiliate. In the event of an actual or threatened
breach of this provision, the Company shall be entitled to an
injunction restraining Executive from such action, and the Company
shall not be prohibited in obtaining such equitable relief or from
pursuing any other available remedies for such breach of threatened
breach including recovery of damages from Executive.
ARTICLE VII
ARBITRATION
Any claim, dispute or controversy arising out of or relating to this Agreement,
the parties relationship under this Agreement or the breach of this Agreement
shall be determined by a single arbitrator pursuant to the applicable rules of
practice and procedures of either the Private Adjudication Center, Inc., an
affiliate of the Duke University School of Law, or of the American Arbitration
Association, as such rules shall be in effect at the time the demand for
arbitration is filed, at the Company's sole election. The parties hereby agree
that the arbitration proceeding shall be private and confidential and shall not
be published in any form or manner. The location of the arbitration shall be at
the Private Adjudication Center's facilities at the Duke Law School, Durham,
North Carolina in the event that the Company elects to apply the rules of
practice and procedure of the Center or shall be in Winston-Salem, North
Carolina in the event the Company elects to apply the rules of the American
Arbitration Association. The decision of the arbitrator shall be final and
binding Judgment to enforce the decision or award of the arbitrator may be
entered in any court having jurisdiction and the parties hereby agree not to
object to the jurisdiction of the North Carolina General Court of Justice for
such purpose. Nothing contained herein shall in any way deprive the Company of
its claim to obtain an injunction or other equitable relief arising out of
Executive's breach of the provisions of Articles IV and VII. In the event of the
termination of Executive's employment, Executive's sole remedy shall be
arbitration as herein provide. The parties agree that no punitive damages shall
be awarded pursuant to any claim brought hereunder.
The parties agree that service of process relating to any arbitration proceeding
shall be made by certified mail. In any judicial proceeding to enforce this
agreement to arbitrate, the only issues to be determined shall be the existence
of the agreement to arbitrate and the failure of one party to comply with that
agreement, and those issues shall be determined summarily by the court without a
jury. All other issues shall be decided by the arbitrator, whose decision
therein shall be final and binding. There may be no appeal of an order
compelling arbitration except as part of an appeal concerning confirmation of
the decision of the arbitrator.
ARTICLE VIII
MISCELLANEOUS
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8.01 PLACE OF EXECUTIVE'S RESIDENCE. The Company shall not require
Executive to relocate his place of residence, principal or otherwise,
except upon Executive's consent. If Executive consents to any change
of residence, the Company shall pay all reasonable relocation
expenses.
8.02 RESIGNATION UPON TERMINATION. In the event of termination of this
Agreement other than by death, Executive shall, and shall be deemed to
have, resigned from all positions held with the Company, including
without limitation, any position as a director, officer, agent,
trustee or consultant of the Company or any affiliate of the Company
effective the date of termination of employment.
8.03 ENFORCEMENT. Both parties recognize that the services to be rendered
under this Agreement by Executive are special, unique and of
extraordinary character and that in the event of the breach by
Executive of any of the terms and conditions of this Agreement to be
performed by him, then the Company shall be entitled, if it so elects,
to institute and prosecute proceedings in any court of competent
jurisdiction, either at law or in equity, to obtain damages for any
breach hereof, or to enjoin Executive from performing acts prohibited
hereby, but nothing herein contained shall be construed to prevent
such other remedy in the courts as the Company may elect to invoke.
8.04 WAIVER OF BREACH. The waiver by a party hereto of a breach of any
provision of this Agreement by the other party hereto shall not
operate or be construed as a waiver of any subsequent breach by such
party.
8.05 SELF-INTEREST. Executive shall not vote or decide upon any matter
related directly or indirectly to him or any right of his to claim any
benefit under the Agreement.
8.06 NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered
or certified mail to executive or the Company at the address set forth
below their signatures at the end of this Agreement or to such other
address as they shall notify each other in writing.
8.07 WITHHOLDING OF TAXES. The Company may withhold from any benefits
payable under this Agreements all federal, state and other taxes as
shall be required pursuant to any law or governmental regulation or
ruling.
8.08 TAX EFFECTS. The Company makes no warranties or representations with
regard to the tax effects or results of this Agreement. Executive
shall be deemed to have relied upon his own tax advisors with regard
to such effects.
8.09 ADMINISTRATION. This Agreement shall be administered, with the advice
and consent of the Committee, by the CEO. All reasonable
determinations and interpretations of the Code and this Agreement made
by the Company or its chosen tax counsel, shall be binding and
conclusive on all parties to this Agreement.
8.10 BURDEN AND BENEFIT. This Agreement shall be binding upon and inure to
the benefit of the Company and its successors and assigns and
Executive and his personal representatives, heirs, legatees and
beneficiaries, but shall not be assignable by Executive.
8.11 CONSTRUCTION. This Agreement shall be construed in accordance with the
laws of the State of North Carolina in every respect, including
without limitation, validity.
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interpretation and performance. Words used in this Agreement, other
than as specifically defined in Article II, have the meaning their
context dictates. If, however, a situation arises in which an
undefined word in this Agreement has a different meaning in legal
usage than that in common use, and its is unclear to the parties which
usage is proper under the circumstances, the ambiguity shall be
resolved by the Committee in favor of the meaning in common usage.
Headings and sub-headings have been added only for convenience of
reference and shall have no substantive effect. References to the
masculine gender shall include the feminine and the singular the
plural whenever appropriate.
8.12 ENTIRE AGREEMENT. This Agreement supersedes all prior discussions and
agreements by and between the Company, or any of its officers,
directors employees, or agents, and Executive with respect to all
matters relating to the employment by Company of Executive and all
other matters contained in this Agreement constitute the sole and
entire Agreement with respect to such employment. Any representation,
inducement, promise or agreement, whether oral or written, between the
Company, or any of its officers, directors employees, or agents, an
Executive which is not embodied in this Agreement shall be of no force
and effect and Executive represents and warrants that he has not
executed this Agreement in reliance upon any such representation or
promise.
8.13 IMPLIED TERMS. The terms, conditions, obligations and duties expressed
in this Agreement are in addition to any duties and obligations
implied in law to an employment relationship except where any
expressed condition is contrary to the implied condition and in which
case, the express condition will apply and control.
8.14 AUTHORITY. All of the provisions of this Agreement required to be
approved by the Committee have been so approved and authorized. Any
other action to be taken by the Company under the terms of this
Agreement shall be by the affirmative vote of a majority of those
members of the Committee.
8.15 AMENDMENT. This Agreement may be amended as provided in Section 4.01
or at any other time by the written mutual agreement of Executive and
the Company executed in a form similar to that of this original
Agreement.
8.16 SEVERABILITY. If any term, covenant or condition of this Agreement or
its application to any person or circumstance shall to any extent be
found to be invalid or unenforceable by a court of competent
jurisdiction, the remainder of this Agreement or the application of
such term, covenant or condition to persons or under conditions other
than those for which it is held invalid or unenforceable, shall not be
affected by such holding and each such remaining portion of this
Agreement shall be valid and be enforced to the fullest extent
permitted by law.
8.17 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer and Executive has signed this Agreement as of the day
and year first above written.
COMPANY:
DIVERSIFIED SENIOR SERVICES, INC.
By: /S/ XXXXX X. XXXXXXXXXXXX
EXECUTIVE:
/S/ X.X. XXXXX, XX. (SEAL)
X. X. Xxxxx, Xx.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
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EXHIBIT A
SCHEDULE OF COMPENSATION
The undersigned hereby agree that the Base Compensation due Executive under
Section 4.01 of the attached Agreement shall be $104,000 payable in accordance
with the Company's regular payroll procedures beginning January 1, 1997, and for
each successive year thereafter during the remaining term of the Agreement,
unless and until further changed by mutual agreement as provided in Section
4.01.
This the 24th day of June, 1997.
COMPANY:
DIVERSIFIED SENIOR SERVICES, INC.
By: /S/ XXXXX X. XXXXXXXXXXXX
EXECUTIVE:
/S/ X.X. XXXXX, XX. (SEAL)
X. X. Xxxxx, Xx.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
EXHIBIT B
SCHEDULE FOR REPAYMENT
AND COMPUTATION OF DEFERRED COMPENSATION
The undersigned hereby agree that accrued but unpaid compensation due Executive
under Section 4.01 of the attached Agreement for the period January 1, 1996
through December 31, 1996 is due and payable to Executive as follows:
Base Compensation $73,500
Bonus Compensation $36,750
In addition, Executive is due accrued, but unpaid, compensation for the period
January 1, 1997 through June 30, 1997, as follows:
Base Compensation $47,250
Bonus Compensation $23,625
The parties agree that the total Bonus in the amount of $60,375, at the election
of Executive, may be paid in cash or may be used by Executive to purchase shares
of the common stock of the Company at a purchase price of $5.00 per share.
Executive shall have the right to purchase such stock until the latest to occur
of the following: (a) June 30, 2002, or (b) a period of one year from the date
upon which the Company offers to pay Executive the total bonus amount in cash.
The parties agree that the purchase of stock provided for in this Exhibit B may
be made in whole or in part until such time as Executive has received the entire
amount of the Bonus described herein.
THIS the 24th day of June, 1997.
-12-
COMPANY:
DIVERSIFIED SENIOR SERVICES, INC.
By: /S/ XXXXX X. XXXXXXXXXXXX
EXECUTIVE:
/S/ X.X. XXXXX, XX. (SEAL)
X. X. Xxxxx, Xx.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
EXHIBIT B
AMENDED AND RESTATED
SCHEDULE FOR REPAYMENT
AND COMPUTATION OF DEFERRED COMPENSATION
The undersigned hereby agree that accrued but unpaid compensation due Executive
under Section 4.01 of the attached Agreement for the period January 1, 1996
through December 31, 1996 is due and payable to Executive as follows:
Base Compensation $73,500
Bonus Compensation $36,750
In addition, Executive is due accrued, but unpaid, compensation for the period
January 1, 1997 through June 30, 1997, as follows:
Base Compensation $47,250
Bonus Compensation $23,625
The parties agree that the total Bonus in the amount of $60,375, at the election
of Executive, may be paid in cash or may be used by Executive to purchase shares
of the common stock of the Company at a purchase price equal to 50% of the
public price per share pursuant to any public sale of stock by the Company.
Executive shall have the right to purchase such stock until the latest to occur
of the following: (a) June 30, 2002, or (b) a period of one year from the date
upon which the Company offers to pay Executive the total bonus amount in cash.
The parties agree that the purchase of stock provided for in this Exhibit B may
be made in whole or in part until such time as Executive has received the entire
amount of the Bonus described herein.
THIS the 6th day of August, 1997.
COMPANY:
DIVERSIFIED SENIOR SERVICES, INC.
By: /S/ XXXXX X. XXXXXXXXXXXX
EXECUTIVE:
/S/ X.X. XXXXX, XX. (SEAL)
X. X. Xxxxx, Xx.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
