EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
DIVERSIFIED SENIOR SERVICES, INC.
AND
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, 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 she 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 her from performing her usual and customary duties as
an employee of the Company. Executive will be deemed to have suffered a
Total Disability when she:
(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 her 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 her most recent date of employment with the Company.
3.02 DUTIES. Executive shall serve as the Company's President and Chief
Operating 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 her 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 she 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 her best efforts to devote her
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 her 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 her 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 her 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 through the date of termination. Upon
such termination by
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Executive upon her 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 her 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 her 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 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
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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 her 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 her 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 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.
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4.02 EXPENSE REIMBURSEMENT. Executive shall be entitled to reimbursement for all
reasonable travel and other business expenses incurred by her in the
performance of services under this Agreement. In addition, Executive is
encouraged and expected to maintain her professional credentials as an
attorney for the benefit of the Company and she shall be entitled to
reimbursement for all reasonable expenses incurred by her 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 her years of service, her
compensation (but only to the extent provided under Section 4.01 and as
permitted to be taken into account under the Code) and her 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 thirteen (13) years she provided
services to the Company as an attorney before her hire as an employee of
the Company, and the seven (7) 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 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 her Normal
Retirement, death, Total Disability, or voluntary termination by her
of this Agreement under Section 3.04(a).
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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
her 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
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(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 her
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 her control
to solicit any employee of the Company, or any employee of any Company
subsidiary to affiliate to terminate her 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.
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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 her 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 her, 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.
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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 her or any right of her 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 her 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 her
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
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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 she 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
y 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 4.021 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXECUTIVE:
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ (SEAL)
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXECUTIVE:
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ (SEAL)
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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 $29,500
Bonus Compensation $14,500
In addition, Executive is due accrued, but unpaid, compensation for the period
January 1, 1997 through June 30, 1997, as follows:
Base Compensation $7,000
Bonus Compensation $3,500
The parties agree that the total Bonus in the amount of $18,000, 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 $10.00 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.
COMPANY:
DIVERSIFIED SENIOR SERVICES, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXECUTIVE:
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ (SEAL)
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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 $29,500
Bonus Compensation $14,500
In addition, Executive is due accrued, but unpaid, compensation for the period
January 1, 1997 through June 30, 1997, as follows:
Base Compensation $7,000
Bonus Compensation $3,500
The parties agree that the total Bonus in the amount of $18,000, 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 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXECUTIVE:
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ (SEAL)
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