EXHIBIT 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
DIVERSIFIED SENIOR SERVICES, INC.
AND
XXXXXXX X. XXXXXX
EFFECTIVE AS OF FEBRUARY 16, 1998
THIS AGREEMENT, made and entered into as of the 16th day of February, 1998, by
and between DIVERSIFIED SENIOR SERVICES, INC., a North Carolina corporation
("Company") and XXXXXXX X. XXXXXX, a resident of the State of New York
("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 Xxxxxxx X. Xxxxxx, effective as
of February 16, 1998, 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 February 16, 1998.
2.09 EXCESS PARACHUTE PAYMENTS: means "excess parachute payments" as that
term is defined under Code Section 280G(b).
2.10 EXECUTIVE: means Xxxxxxx X. Xxxxxx, a New York 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 occurrence 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
(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 two (2) years from the
Effective Date and shall be extended a day for each day Executive is
employed by the Company on or before his seventy-third (73rd)
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 two (2) years from his most recent date of
employment with the Company.
3.02 DUTIES. Executive shall serve as the President and Chief Operating
Officer of DSS Funding, Inc., a wholly owned subsidiary of the
Company, 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 reasonably 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.
Anything contained in this paragraph 3.03 notwithstanding, Executive
shall be allowed to provide consulting services to PW Funding located
in Mineola, NY, through approximately the end of February 1998 in
return for the provision by PW Funding of office and secretarial
support during the month of February. During this period, the
Executive shall nevertheless allocate the majority of his time to
activities pertaining to the Company's business. Thereafter, Executive
may work or provide services and receive compensation on his own time
without being considered in violation of the provisions of this
Article III for the provision of services on project loans associates
with Woodview Associates located in East Haven, Connecticut; The
Gateway Apartments located in Council Bluffs, Iowa and the Northern
Manhattan Nursing Home located in New York City, New York.
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 and all accrued incentive
compensation through the date of termination, plus any other
compensation due him under Article V. Upon such termination by
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 plus all
accrued incentive compensation 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; (5)
failure of DSS Funding to achieve break even operations by the
end of its twelfth full month of operations; or (6) 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 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. 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. 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,
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 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 such payments
by reimbursing him for the effects of any additional federal or
State of New York 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 New York 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 New York
excise tax rate, and (B) the combined marginal federal and
State of New York 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
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
pursing any other available remedies for such breach of threatened
breach including recovery of damages from Executive.
6.04 PROJECT FINANCINGS. Anything contained in this Article VI
notwithstanding, Executive shall be allowed to continue to provide
financing related services to proposed project loans originated by him
where such project loans do not involve the company as project sponsor
or developer or where the Company gives express permission for the
Executive to continue to provide such financing services as were
contemplated to be provided by the Executive while employed by the
Company; provided, however, that 50% of the origination fees
associated with any proposed project commenced prior to the
termination of Executive employment will be paid to the Company at
closing of the proposed financing.
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
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. 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
-----------------------------------
Xxxxx X. Xxxxxxxxxxxx
EXECUTIVE:
/s/ XXXXXXX X. XXXXXX (SEAL)
----------------------------------
Xxxxxxx X. Xxxxxx
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 $100,000 payable in accordance
with the Company's regular payroll procedures beginning with the effective date
of this Agreement, 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 16th day of February, 1998.
COMPANY:
DIVERSIFIED SENIOR SERVICES, INC.
By: /s/ XXXXX X. XXXXXXXXXXXX
---------------------------------
Xxxxx X. Xxxxxxxxxxxx
EXECUTIVE:
/s/ XXXXXXX X. XXXXXX (SEAL)
----------------------------------
Xxxxxxx X. Xxxxxx
EXHIBIT B
SCHEDULE FOR REPAYMENT
AND COMPUTATION OF DEFERRED COMPENSATION
NONE
